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Second Chances and “Do-Overs”: Expungements and Specialized Driving Privileges

Part I: Expungements–Second Chances, Use Them Now!

Having a criminal record is not only embarrassing but stands in the way of so many opportunities such as being approved to go on a school field trip with your child or grandchild, being approved for a loan, being eligible for lower insurance premiums, obtaining a handgun license, gaining admission to college, or successfully finding a desirable job. Misdemeanor and/or felony convictions on your record can now be expunged.

Expungement Law: Expanded in 2014 with additional amendments effective July 1, 2015
Effective March 26, 2014 the Indiana legislature acted on an emergency basis to expand the expungement law, empowering courts to expunge most criminal records. The most recent amendments, signed into law by Governor Mike Pence on May 4, 2015 becomes effective July 1, 2015.

Expungements of arrests, expungements of criminal citations that were never charged, expungements of dismissed cases, expungement of misdemeanor convictions, and expungements of most Class D Felony convictions are mandatory.

The language of the statute is that the court “shall” grant the petition assuming the petitioner meets the statutory requirements. On the other hand the expungement of higher level felonies is discretionary, providing that the court “may” grant the petition if the petitioner meets the statutory requirements.

The state can respond to any petition for expungement of records but as to uncharged arrests or citations, dismissed cases, misdemeanor convictions and as to most felony convictions, the state can only really object to the form of the petition or to point out that one or more of the statutory requirements have not been met or established.

For more serious felonies the state can object based on the notion that someone convicted of a higher level felony (e.g. Class B Felony for Dealing in a Schedule II Controlled Substance) should not be given a second chance.

For many higher level felonies, under the most recent law, if the prosecutor objects, then the court must set the matter for a hearing not sooner than 60 days after the prosecutor was served the original Petition for Expungement. If there is a victim of the crime then the state must attempt to provide notice to the victim.

The victim can appear and be heard, or send in a letter, stating that they either agree with or oppose the request. Regardless of the state’s position, and the victim’s position (if any), the court still has the discretion to grant the expungement.

For even higher level crimes (e.g. those resulting in serious bodily injury) the prosecutor must consent or the court has no discretion to grant an expungement. Finally, some crimes are never eligible for expungement (e.g. murder, human or sex trafficking, many sex crimes, and crimes that lead to the designation of “sex or violent offender” as defined in IC 11-8-8-5, etc.

The seriousness of the crime being expunged not only impacts the eligibility to expunge but also the effect of the expungement. For discretionary expungements, those that the court “may” grant, the records are marked expunged but not removed from public access.
For the lower level crimes (misdemeanor and most D Felony convictions) the records are marked expunged and removed from public access.

Civil rights are restored after a court grants any of the expungements. These civil rights include the right to vote, the right to hold public office, the right to serve as a juror, and, if otherwise eligible, the right to obtain a firearm permit or license. To restore gun rights after a domestic violence conviction a separate legal procedure is necessary, regardless if it is expunged.

The following chart provides a general overview of the varying levels of offenses, the time periods which must elapse before eligibility to expunge, the court’s level of discretion (“shall” vs. “may”), whether the state must consent, and the relief granted:

Download Chart

Finally, here are a few key points to remember:

• Petitioners may file multiple expungement requests within a single petition (if all crimes were in same county).

• Additionally, petitioners may file expungement requests in multiple counties. If filing in multiple counties, then the petitioner has 365 days from the date of the first petition to file all remaining petitions. Failure to file all petitions within the 365 days results in ineligibility to expunge later.

• Employers may not inquire about any expunged convictions or records.

• Credit reporting agencies and companies that perform employment screening may not report expunged convictions or that petitions for expungement(s) were filed.

Finally, there are many intricacies to the expungement statute which has now changed significantly since 2013, so please contact Attorney B. Joseph Davis at the Law Offices of B. Joseph Davis, PC for your free consultation. We can handle your criminal expungement in any Indiana County.

And remember, you only have 365 days from the date of the first petition to use all of your Second Chances–So Use Them Now!

Stay tuned for Part II: Specialized Driving Privileges-it’s time for a “do-over”.