Indiana Code Sections 35-38-9-1 through 35-38-9-11

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Full Indiana Code Sections 35-38-9-1 through 35-38-9-11

IC 35-38-9-1 Expunging arrest records

Sec. 1. (a) This section applies only to a person who has been arrested if:
(1) the arrest:
(A) did not result in a conviction or juvenile adjudication; or
(B) resulted in a conviction or juvenile adjudication and the conviction or adjudication was vacated on appeal; and
(2) the person is not currently participating in a pretrial diversion program.

(b) Not earlier than one (1) year after the date of arrest, if the person was not convicted or adjudicated a delinquent child, or the date of the opinion vacating the conviction or adjudication becomes final (unless the prosecuting attorney agrees in writing to an earlier time), the person may petition the court for expungement of the records related to the arrest.

(c) A petition for expungement of records must be verified and filed in the court in which the charges were filed, or if no criminal charges were filed, in a court with criminal jurisdiction in the county where the arrest occurred. The petition must set forth:
(1) the date of the arrest;
(2) the county in which the arrest occurred;
(3) the law enforcement agency employing the arresting officer, if known;
(4) any other known identifying information, such as the name of the arresting officer, case number, or court cause number;
(5) the date of the petitioner's birth; and
(6) the petitioner's Social Security number.

(d) The court shall serve a copy of the petition on the prosecuting attorney.

(e) Upon receipt of a petition for expungement, the court:
(1) may summarily deny the petition if the petition does not meet the requirements of this section, or if the statements contained in the petition indicate that the petitioner is not entitled to relief; and
(2) shall grant the petition unless:
(A) the conditions described in subsection (a) have not been met; or
(B) criminal charges are pending against the person.

(f) Whenever the petition of a person under this section is granted, no information concerning the arrest may be placed or retained in any state central repository for criminal history information or in any other alphabetically arranged criminal history information system maintained by a local, regional, or statewide law enforcement agency. However, this chapter does not require any change or alteration in:
(1) any internal record made by a law enforcement agency at the time of the arrest and not intended for release to the public;
(2) the record of any court in which the criminal charges were filed; or
(3) records that relate to a diversion or deferral program.

(g) If a person whose records are expunged brings an action that might be defended with the contents of the expunged records, the defendant is presumed to have a complete defense to the action. In order for the plaintiff to recover, the plaintiff must show that the contents of the expunged records would not exonerate the defendant. The plaintiff may be required to state under oath whether the plaintiff had records in the criminal justice system and whether those records were expunged. If the plaintiff denies the existence of the records, the defendant may prove their existence in any manner compatible with the law of evidence.

IC 35-38-9-2 Expunging misdemeanor convictions

Sec. 2. (a) This section applies only to a person convicted of a misdemeanor, including a Class D felony (for a crime committed before July 1, 2014) or a Level 6 felony (for a crime committed after June 30, 2014) reduced to a misdemeanor.

(b) Not earlier than five (5) years after the date of conviction (unless the prosecuting attorney consents in writing to an earlier period), the person convicted of the misdemeanor may petition a court to expunge all conviction records, including records contained in:
(1) a court's files;
(2) the files of the department of correction;
(3) the files of the bureau of motor vehicles; and
(4) the files of any other person who provided treatment or services to the petitioning person under a court order; that relate to the person's misdemeanor conviction.

(c) A person who files a petition to expunge conviction records shall file the petition in a circuit or superior court in the county of conviction.

(d) If the court finds by a preponderance of the evidence that:
(1) the period required by this section has elapsed;
(2) no charges are pending against the person;
(3) the person has paid all fines, fees, and court costs, and satisfied any restitution obligation placed on the person as part of the sentence; and
(4) the person has not been convicted of a crime within the previous five (5) years (or within a shorter period agreed to by the prosecuting attorney if the prosecuting attorney has consented to a shorter period under subsection (b)); the court shall order the conviction records described in subsection (b) expunged in accordance with section 6 of this chapter.

IC 35-38-9-3 Expunging minor Class D and Level 6 felony convictions

Sec. 3. (a) Except as provided in subsection (b), this section applies only to a person convicted of a Class D felony (for a crime committed before July 1, 2014) or a Level 6 felony (for a crime committed after June 30, 2014). This section does not apply to a person if the person's Class D felony or Level 6 felony was reduced to a Class A misdemeanor.

(b) This section does not apply to the following:
(1) An elected official convicted of an offense while serving the official's term or as a candidate for public office.
(2) A sex or violent offender (as defined in IC 11-8-8-5).
(3) A person convicted of a felony that resulted in bodily injury to another person.
(4) A person convicted of perjury (IC 35-44.1-2-1) or official misconduct (IC 35-44.1-1-1).
(5) A person convicted of an offense described in: (A) IC 35-42-1; (B) IC 35-42-3.5; or (C) IC 35-42-4.

(c) Not earlier than eight (8) years after the date of conviction (unless the prosecuting attorney consents in writing to an earlier period), the person convicted of the Class D felony or Level 6 felony may petition a court to expunge all conviction records, including records contained in:
(1) a court's files;
(2) the files of the department of correction;
(3) the files of the bureau of motor vehicles; and
(4) the files of any other person who provided treatment or services to the petitioning person under a court order; that relate to the person's Class D or Level 6 felony conviction.

(d) A person who files a petition to expunge conviction records shall file the petition in a circuit or superior court in the county of conviction.

(e) If the court finds by a preponderance of the evidence that:
(1) the period required by this section has elapsed;
(2) no charges are pending against the person;
(3) the person has paid all fines, fees, and court costs, and satisfied any restitution obligation placed on the person as part of the sentence; and
(4) the person has not been convicted of a crime within the previous eight (8) years (or within a shorter period agreed to by the prosecuting attorney if the prosecuting attorney has consented to a shorter period under subsection (c)); the court shall order the conviction records described in subsection (c) expunged in accordance with section 6 of this chapter.

IC 35-38-9-4 Expunging certain less serious felony convictions

Sec. 4. (a) Except as provided in subsection (b), this section applies only to a person convicted of a felony who may not seek expungement of that felony under section 3 of this chapter.

(b) This section does not apply to the following:
(1) An elected official convicted of an offense while serving the official's term or as a candidate for public office.
(2) A sex or violent offender (as defined in IC 11-8-8-5).
(3) A person convicted of a felony that resulted in serious bodily injury to another person.
(4) A person convicted of official misconduct (IC 35-44.1-1-1).
(5) A person convicted of an offense described in: (A) IC 35-42-1; (B) IC 35-42-3.5; or (C) IC 35-42-4.

(c) Not earlier than the later of eight (8) years from the date of conviction, or three (3) years from the completion of the person's sentence, unless the prosecuting attorney consents in writing to an earlier period, the person convicted of the felony may petition a court to expunge all conviction records, including records contained in:
(1) a court's files;
(2) the files of the department of correction;
(3) the files of the bureau of motor vehicles; and
(4) the files of any other person who provided treatment or services to the petitioning person under a court order; that relate to the person's felony conviction.

(d) A person who files a petition to expunge conviction records shall file the petition in a circuit or superior court in the county of conviction.

(e) If the court finds by a preponderance of the evidence that:
(1) the period required by this section has elapsed;
(2) no charges are pending against the person;
(3) the person has paid all fines, fees, and court costs, and satisfied any restitution obligation placed on the person as part of the sentence; and
(4) the person has not been convicted of a crime within the previous eight (8) years (or within a shorter period agreed to by the prosecuting attorney if the prosecuting attorney has consented to a shorter period under subsection (c));
the court may order the conviction records described in subsection (c) marked as expunged in accordance with section 7 of this chapter. A person whose records have been ordered marked as expunged under this section is considered to have had the person's records expunged for all purposes other than the disposition of the records.

IC 35-38-9-5 Expunging certain serious felony convictions; consent of prosecutor required

Sec. 5. (a) Except as provided in subsection (b), this section applies to a person convicted of a felony, including:
(1) an elected official convicted of an offense while serving the official's term or as a candidate for public office; and
(2) a person convicted of a felony that resulted in serious bodily injury to another person.

(b) This section does not apply to the following:
(1) A sex or violent offender (as defined in IC 11-8-8-5).
(2) A person convicted of official misconduct (IC 35-44.1-1-1).
(3) A person convicted of an offense described in: (A) IC 35-42-1; (B) IC 35-42-3.5; or (C) IC 35-42-4.

(c) Not earlier than the later of ten (10) years from the date of conviction, or five (5) years from the completion of the person's sentence, unless the prosecuting attorney consents in writing to an earlier period, the person convicted of the felony may petition a court to expunge all conviction records, including records contained in:
(1) a court's files;
(2) the files of the department of correction;
(3) the files of the bureau of motor vehicles; and
(4) the files of any other person who provided treatment or services to the petitioning person under a court order;
that relate to the person's felony conviction.

(d) A person who files a petition to expunge conviction records shall file the petition in a circuit or superior court in the county of conviction.

(e) If the court finds by a preponderance of the evidence that:
(1) the period required by this section has elapsed;
(2) no charges are pending against the person;
(3) the person has paid all fines, fees, and court costs, and satisfied any restitution obligation placed on the person as part of the sentence;
(4) the person has not been convicted of a crime within the previous ten (10) years (or within a shorter period agreed to by the prosecuting attorney if the prosecuting attorney has consented to a shorter period under subsection (c)); and
(5) the prosecuting attorney has consented in writing to the expungement of the person's criminal records;
the court may order the conviction records described in subsection (c) marked as expunged in accordance with section 7 of this chapter. A person whose records have been ordered marked as expunged under this section is considered to have had the person's records expunged for all purposes other than the disposition of the records.

IC 35-38-9-6 Effect of expunging misdemeanor and minor Class D and Level 6 felony convictions

Sec. 6. (a) If the court orders conviction records expunged under sections 2 through 3 of this chapter, the court shall do the following with respect to the specific records expunged by the court:
(1) Order:
(A) the department of correction;
(B) the bureau of motor vehicles; and
(C) each:
(i) law enforcement agency; and
(ii) other person;
who incarcerated, provided treatment for, or provided other services for the person under an order of the court;
to prohibit the release of the person's records or information in the person's records to anyone without a court order, other than a law enforcement officer acting in the course of the officer's official duty.

(2) Order the central repository for criminal history information maintained by the state police department to seal the person's expunged conviction records. Records sealed under this subdivision may be disclosed only to:
(A) a prosecuting attorney, if:
(i) authorized by a court order; and
(ii) needed to carry out the official duties of the prosecuting attorney;
(B) a defense attorney, if:
(i) authorized by a court order; and
(ii) needed to carry out the professional duties of the defense attorney;
(C) a probation department, if:
(i) authorized by a court order; and
(ii) necessary to prepare a presentence report;
(D) the Federal Bureau of Investigation and the Department of Homeland Security, if disclosure is required to comply with an agreement relating to the sharing of criminal history information;
(E) the:
(i) supreme court;
(ii) members of the state board of law examiners;
(iii) executive director of the state board of law examiners; and
(iv) employees of the state board of law examiners, in accordance with rules adopted by the state board of law examiners;
for the purpose of determining whether an applicant possesses the necessary good moral character for admission to the bar; and
(F) a person required to access expunged records to comply with the Secure and Fair Enforcement for Mortgage Licensing Act (12 U.S.C. 5101 et seq.) or regulations adopted under the Secure and Fair Enforcement for Mortgage Licensing Act.

(3) Notify the clerk of the supreme court to seal any records in the clerk's possession that relate to the conviction. A probation department may provide an unredacted version of a presentence report disclosed under subdivision (2)(C) to any person authorized by law to receive a presentence report.

(b) Except as provided in subsection (c), if a petition to expunge conviction records is granted under sections 2 through 3 of this chapter, the records of:
(1) the sentencing court;
(2) a juvenile court;
(3) a court of appeals; and
(4) the supreme court;
concerning the person shall be permanently sealed. However, a petition for expungement granted under sections 2 through 3 of this chapter does not affect an existing or pending driver's license suspension.

(c) If a petition to expunge conviction records is granted under sections 2 through 3 of this chapter with respect to the records of a person who is named as an appellant or an appellee in an opinion or memorandum decision by the supreme court or the court of appeals, the court shall:
(1) redact the opinion or memorandum decision as it appears on the computer gateway administered by the office of technology so that it does not include the petitioner's name (in the same manner that opinions involving juveniles are redacted); and
(2) provide a redacted copy of the opinion to any publisher or organization to whom the opinion or memorandum decision is provided after the date of the order of expungement.
The supreme court and court of appeals are not required to destroy or otherwise dispose of any existing copy of an opinion or memorandum decision that includes the petitioner's name.

(d) Notwithstanding subsection (b), a prosecuting attorney may submit a written application to a court that granted an expungement petition under this chapter to gain access to any records that were permanently sealed under subsection (b), if the records are relevant in a new prosecution of the person. If a prosecuting attorney who submits a written application under this subsection shows that the records are relevant for a new prosecution of the person, the court that granted the expungement petition shall:
(1) order the records to be unsealed; and
(2) allow the prosecuting attorney who submitted the written application to have access to the records.
If a court orders records to be unsealed under this subsection, the court shall order the records to be permanently resealed at the earliest possible time after the reasons for unsealing the records cease to exist. However, if the records are admitted as evidence against the person in a new prosecution that results in the person's conviction, or are used to enhance a sentence imposed on the person in a new prosecution, the court is not required to reseal the records.

(e) If a person whose conviction records are expunged under sections 2 through 5 of this chapter is required to register as a sex offender based on the commission of a felony which has been expunged:
(1) the expungement does not affect the operation of the sex offender registry web site, any person's ability to access the person's records, records required to be maintained concerning sex or violent offenders, or any registration requirement imposed on the person; and
(2) the expunged conviction must be clearly marked as expunged on the sex offender registry web site.

(f) Expungement of a crime of domestic violence under section 2 of this chapter does not restore a person's right to possess a firearm. The right of a person convicted of a crime of domestic violence to possess a firearm may be restored only in accordance with IC 35-47-4-7.

IC 35-38-9-7 Effect of expunging serious and less serious felony convictions

Sec. 7. (a) This section applies only to a person who has filed a petition for expungement under section 4 or 5 of this chapter and whose records have been ordered marked as expunged.

(b) The court records and other public records relating to the arrest, conviction, or sentence of a person whose conviction records have been marked as expunged remain public records. However, the court shall order that the records be clearly and visibly marked or identified as being expunged. A petition for expungement granted under sections 4 through 5 of this chapter does not affect an existing or pending driver's license suspension.

(c) The state police department, the bureau of motor vehicles, and any other law enforcement agency in possession of records that relate to the conviction ordered to be marked as expunged shall add an entry to the person's record of arrest, conviction, or sentence in the criminal history data base stating that the record is marked as expunged.

IC 35-38-9-8 Petition to expunge conviction records

Sec. 8. (a) This section applies only to a petition to expunge conviction records under sections 2 through 5 of this chapter. This section does not apply to a petition to expunge arrest records under section 1 of this chapter.

(b) Any person may seek an expungement under sections 2 through 5 of this chapter by filing a verified petition for expungement. The petition must include the following:
(1) The petitioner's full name and all other legal names or aliases by which the petitioner is or has been known.
(2) The petitioner's date of birth.
(3) The petitioner's addresses from the date of the offense to the date of the petition.
(4) A certified copy of petitioner's records from the bureau of motor vehicles.
(5) The petitioner shall affirm that no criminal investigation or charges are pending against the petitioner.
(6) The petitioner shall affirm that the petitioner has not committed another crime within the period required for expungement.
(7) The petitioner shall list all convictions and the date of the conviction, and any appeals from the conviction and the date any appellate opinion was handed down, if applicable.
(8) The petitioner shall affirm that the required period has elapsed or attach a copy of the prosecuting attorney's written consent to a shorter period.
(9) The petitioner shall describe any other petitions that the petitioner has filed under this chapter.
(10) For a petition filed under section 5 of this chapter, the petitioner shall attach a copy of the prosecuting attorney's written consent.
(11) The petitioner shall provide evidence that the petitioner has paid all fines, fees, and court costs, and satisfied any restitution obligation imposed on the person as part of the sentence.

(c) The petitioner may include any other information that the petitioner believes may assist the court.

(d) The petitioner shall serve a copy of the petition upon the prosecuting attorney in accordance with the Indiana Rules of Trial Procedure.

(e) The prosecuting attorney shall inform the victim of the victim's rights under IC 35-40-6 by contacting the victim at the victim's last known address.

(f) The prosecuting attorney shall reply to the petition not later than thirty (30) days after receipt.

IC 35-38-9-9 Duties of court in ruling on expungement petitions

Sec. 9. (a) If the prosecuting attorney does not object, the court may grant the petition for expungement without a hearing.

(b) The court may summarily deny a petition, if the petition does not meet the requirements of section 8 of this chapter, or if the statements contained in the petition demonstrate that the petitioner is not entitled to relief.

(c) If the prosecuting attorney objects to the petition, the court shall set the matter for hearing not sooner than sixty (60) days after service of the petition on the prosecuting attorney.

(d) A victim of the offense for which expungement is sought may submit an oral or written statement in support of or in opposition to the petition at the time of the hearing. The petitioner must prove by a preponderance of the evidence that the facts alleged in the verified petition are true.

(e) The grant or denial of a petition is an appealable final order.

(f) If the court grants the petition for expungement, the court shall issue an order of expungement as described in sections 6 and 7 of this chapter.

(g) This subsection applies only to a petition to expunge conviction records filed under sections 2 through 5 of this chapter. This subsection does not apply to a petition to expunge arrest records under section 1 of this chapter. A petitioner may seek to expunge more than one (1) conviction at the same time. The petitioner shall consolidate all convictions that the petitioner wishes to expunge from the same county in one (1) petition. A petitioner who wishes to expunge convictions from separate counties must file a petition in each county in which a conviction was entered.

(h) This subsection applies only to a petition to expunge conviction records filed under sections 2 through 5 of this chapter. This subsection does not apply to a petition to expunge arrest records under section 1 of this chapter. Except as provided in subsections (i) and (j), a petitioner may file a petition for expungement only one (1) time during the petitioner's lifetime. For purposes of this subsection, all petitions for expungement filed in separate counties for offenses committed in those counties count as one (1) petition if they are filed in one (1) three hundred sixty-five (365) day period.

(i) A petitioner whose petition for expungement has been denied, in whole or in part, may file a subsequent petition for expungement with respect to one (1) or more convictions included in the initial expungement petition that were not expunged. However, if the petition was denied due to the court's exercise of its discretion under section 4 or 5 of this chapter, a subsequent petition for expungement may be filed only after the elapse of three (3) years from the date on which the previous expungement petition was denied. Except as provided in subsection (j), a subsequent petition for expungement may not include any conviction that was not included in the initial expungement petition.

(j) A court may permit a petitioner to file a subsequent petition for expungement with respect to one (1) or more convictions that were not included in the initial expungement petition only if the court finds that:
(1) the petitioner intended in good faith to comply with subsections (g) and (h);
(2) the petitioner's failure to comply with subsections (g) and (h) was due to:
(A) excusable neglect; or
(B) circumstances beyond the petitioner's control; and
(3) permitting the petitioner to file a subsequent petition for expungement is in the best interests of justice.

IC 35-38-9-10 Unlawful discrimination against a person whose record has been

expunged; exceptions

Sec. 10. (a) This section does not apply to a person to whom sealed records may be disclosed under section 6(a)(2) of this chapter. (b) It is unlawful discrimination for any person to:
(1) suspend;
(2) expel;
(3) refuse to employ;
(4) refuse to admit;
(5) refuse to grant or renew a license, permit, or certificate necessary to engage in any activity, occupation, or profession; or
(6) otherwise discriminate against;
any person because of a conviction or arrest record expunged or sealed under this chapter.
(c) The civil rights of a person whose conviction has been expunged shall be restored, including the right to vote, to hold public office, and to serve as a juror.
(d) In any application for employment, a license, or other right or privilege, a person may be questioned about a previous criminal record only in terms that exclude expunged convictions or arrests, such as: "Have you ever been arrested for or convicted of a crime that has not been expunged by a court?".
(e) A person whose record is expunged shall be treated as if the person had never been convicted of the offense. However, upon a subsequent arrest or conviction for an unrelated offense, the prior expunged conviction:
(1) may be considered by the court in determining the sentence imposed for the new offense;
(2) is a prior unrelated conviction for purposes of:
(A) a habitual offender enhancement; and
(B) enhancing the new offense based on a prior conviction; and
(3) may be admitted as evidence in the proceeding for a new offense as if the conviction had not been expunged.
(f) Any person that discriminates against a person as described in subsection (b) commits a Class C infraction and may be held in contempt by the court issuing the order of expungement or by any other court of general jurisdiction. Any person may file a written motion of contempt to bring an alleged violation of this section to the attention of a court. In addition, the person is entitled to injunctive relief.
(g) In any judicial or administrative proceeding alleging negligence or other fault, an order of expungement may be introduced as evidence of the person's exercise of due care in hiring, retaining, licensing, certifying, admitting to a school or program, or otherwise transacting business or engaging in activity with the person to whom the order of expungement was issued.
(h) A conviction that has been expunged under this chapter is not admissible as evidence in an action for negligent hiring, admission, or licensure against a person or entity who relied on the order.
(i) A petition for expungement and an order for expungement are confidential.

IC 35-38-9-11 Waiver of expungement in a plea agreement invalid

Sec. 11. (a) A person may not waive the right to expungement under this chapter as part of a plea agreement. Any purported waiver of the right to expungement in a plea agreement is invalid and unenforceable as against public policy.

(b) This section does not prohibit the finding of a waiver of the right to expungement based on a failure to comply with the provisions of this chapter.