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STAGGERING STATISTICS

According to the National Employment Law Project (NELP) there are

an estimated 65 million adults—which is about one (1) out of every

four (4) adults—in the U.S. who have criminal records.

NELP suggests that 65 million is a conservative number because

according to a 2008 survey of states, there were 92.3 million people

with criminal records on file with states.

As of December 31, 2012, there are an estimated 1.6 million

Hoosiers with criminal records. Which means, close to a quarter of

Indiana Residents have a criminal record.

LARGEST BARRIERS CREATED BY CRIMINAL HISTORIES

It is no secret that people with criminal histories face major difficulties

with establishing a steady life for themselves once they re-enter

society. Four of the biggest difficulties fall in the following areas.

Employment

Housing

Education

Social Stigma

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ENACTMENT OF SECOND CHANCE LAW

On July 1, 2013, House Enrolled Act 1482—the first version of the

expungement law—went into effect.

On March 26, 2014, House Enrolled Act 1155—the remedy

legislation for the expungement law—went into effect. Some of the

biggest changes in the new law included:

Driving License: no longer requires petitioners to have valid

driving privilege status.

Filing Fee: $141.00 fee was eliminated.

Successful Completion of Sentience Requirement: this is no

longer required. New law only requires that all court costs are paid

in full.

Confidentiality : all expungement filings are now confidential

Waiting Period Shifts

WHAT IS AN EXPUNGEMENT

Expungement is the removal of criminal records from public

inspection that would come up when one does a Criminal

Background Check on you. The results of criminal background

checks impact:

Employment

Loans

Education

Housing

Public Benefits

LIMITS ON INDIANA’S EXPUNGEMENT LAW

Some Organizations will still have access to the record though it will

show that it has been “Expunged”

Law Enforcement Agencies (The Police)

The FBI

State Board of Bar Examiners

Others that Subpoena for Access and receive Court Approval

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WHAT GENERALLY CANNOT BE EXPUNGED

An elected official convicted of an offense while serving the official’s

term or as a candidate for public office.

A sex or violent offender (as defined in I.C. 11-8-8-5)

Sex Crimes: Most Sex crime offenses, in particular those that

require registration on the Sex Offender Registry, crimes such as:

Rape

Child Molesting

Human Trafficking

Violent Offenses: Murder / Manslaughter type crimes.

ONCE IN A LIFETIME RULE

One Time Rule: According to I.C. 35-38-9-9(h), a petitioner may only

file one (1) expungement petition during the petitioner’s lifetime.

Separate Counties Rule: All expungement petitions filed in

separate counties for offenses committed in those counties count as

one petition if they are filed within one three hundred sixty-five (365)

day period.

Since petitioners only get one shot to have their convictions expunged, it is

critical that petitioners file when ALL of their convictions are eligible and that

ALL of their convictions are included in the first petition.

5 MAIN EXPUNGEMENT CATEGORIES

The expungement law (I.C. 35-38-9) has 11 sections total, five of

which address the classification of crimes that can be sealed.

Section 1: applies to arrests that did not result in a conviction.

Section 2: applies to misdemeanors and D-Felonies reduced to

misdemeanors.

Section 3: applies to D felonies that did not result in bodily injury.

Section 4: applies to all other felonies that did not result in

serious bodily injury.

Section 5: applies to all serious bodily injury convictions that are

not statutorily excluded.

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IC 35-38-9-1

ARRESTS THAT DO NOT LEAD TO CONVICTIONS Applies to persons who have been arrested if:

The arrest did not result in a conviction or juvenile adjudication

The arrest resulted in conviction or juvenile adjudication and was

vacated on appeal

The person is not currently participating in a pretrial diversion

program

IC 35-38-9-1

REQUIREMENTS A Petition to Expunge and Seal cannot be filed earlier than:

One (1) year after the date of arrest, if the person was not

convicted or was not adjudicated a delinquent child

One (1) year after the date the appellate opinion vacating the

conviction or adjudication becomes final

The prosecutor may agree in writing to an earlier time frame

NOTE: The time frame is from the arrest or when an appeal becomes

final and not the dismissal or acquittal.

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IC 35-38-9-1

FILING REQUIREMENTSThe Petition must set forth:

The date of the arrest

The county in which the arrest occurred

The law enforcement agency employing the arresting office-if known

Any other known identifying information such as the name of the

arresting officer, case number or court cause number

Petitioner’s date of birth

Petitioner’s Social Security number

The Prosecuting Attorney must be served a copy of the petition.

IC 35-38-9-1

COURT ACTION-DENIALSThe Court may:

Summarily deny the petition if it does not meet the requirements of

the section or if it indicates that the petitioner is not entitled to relief.

IC 35-38-9-1

COURT ACTION-GRANTING OF PETITIONThe Court SHALL grant the petition UNLESS:

Conditions under IC 35-38-9-1 (a) have not been met; or

Criminal charges are pending against the Petitioner

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IC 35-38-9-1

EFFECT OF GRANTING THE PETITION Upon granting of the Petition:

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

No change or alteration is required in any internal record made by

law enforcement agency at the time of the arrest and not intended

for release to the public; the record of any court in which the criminal

charges were filed; or the records that relate to a diversion or

deferral program

IC 35-38-9-1

USE OF EXPUNGED RECORDS 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.

The Plaintiff, in order to recover, 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.

The Defendant may, if such records are denied by the Plaintiff, prove

their existence in any manner compatible to the law of evidence.

IC 35-38-9-2

CONDITIONS FOR EXPUNGEMENTEligibility for Relief for:

Misdemeanor Convictions

D felony convictions( before July 1, 2014) or a Level 6 felony conviction (for crimes committed after June 30, 2014) reduced to a Misdemeanor

1.Five (5) years must have elapsed since the conviction UNLESS the petition contains written consent from the Prosecutor to file the petition earlier

2.There are no charges pending against the Petitioner

3.The person has not been convicted of a crime within the previous five (5) years or within a shorter time period if agreed upon by the prosecuting attorney in writing

4.Petitioner has paid ALL restitution, fines, fees and court costs and satisfied any restitution obligation placed on the person as a result of the sentence

Granting an IC 35-38-9-2 petition is mandatory if all statutory conditions are met

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IC 35-38-9-3

CONDITIONS FOR EXPUNGEMENTEligibility for D Felony Convictions before July 1, 2014 or Level 6 Felony

Convictions after June 30, 2014.

Conviction of a D felony or Level 6 felony not reduced to a Class A misdemeanor AND not involving bodily injury.

1.Eight (8) years must have elapsed since the conviction unless the Prosecutor gives written consent for earlier filing

2.The person has not been convicted of a crime within the previous eight (8) years or within a shorter time period if agreed upon by the prosecuting attorney in writing.

3.There are no charges pending against the Petitioner

4.Petitioner has paid ALL, fines, fees and court costs and satisfied any restitution obligation placed on the person by the court

5.Person was not convicted of a felony that resulted in bodily injury to another persons.

Granting of this petition is mandatory if all statutory conditions are met.

IC 35-38-9-4

CONDITIONS FOR EXPUNGEMENTFelony Convictions: IC 35-38-9-4

Felony offenses not described in IC 35-39-9-5, can not be expunged under IC 35-38-9-3 and offenses that are not forbidden by statute

1.Available not earlier than the later of eight (8) years from the date of convictionor three (3) years from the completion of the person’s sentence unless theProsecutor gives written consent for earlier filing

2.The person has not been convicted of a crime within the previous eight (8)years or within a shorter time period if agreed upon by the prosecuting attorneyin writing

3.There are no charges pending against the Petitioner

4.Petitioner has paid ALL fines, fees and court costs and any restitutionobligations placed on the person as part of the sentence

5.Petitioner was not convicted of a crime that resulted in serious bodily injury toanother person

Granting of this petition is discretionary with the Court

IC 35-38-9-5

CONDITIONS FOR EXPUNGEMENTSealing /Expungement of Specific Felony Convictions: IC 35-38-9-5

The Petitioner must have the written consent and approval of the Prosecutor to file under this section

Felony offense that resulted in serious bodily injury to another person

Felony offense committed by an elected public official during the official’s term or while a candidate for public office

1.Available not earlier than the later of ten (10) years from the date of conviction or five years from the completion of the person’s sentence unless the Prosecutor gives written consent for earlier filing

2.The person has not been convicted of a crime within the previous ten (10) years or within a shorter time period if agreed upon by the prosecuting attorney in writing

3.There are no charges pending against the Petitioner

4.Petitioner has paid ALL fines, fees and court costs and any restitution obligations placed on the person as part of the sentence

Granting of a petition under this section is discretionary with the Court

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MANDATORY V. DISCRETIONARY

Mandatory: Petitions filed under sections 1 through 3 shall be granted if thepetitioner has meet all of the requirements.

Prosecutor has not statutory basis to object.

Fact based arguments will not sway judges decision if all requirementsmet.

Discretionary: Petitions filed under sections 4 and 5 may be granted if thepetition has meet all of the requirements.

Even if all of the statutory requirements are met, the court does not have togrant the petition. Prosecutor can make fact based arguments for why thepetition should not be granted. Some factors judges may consider include:

1. Length of time since petitioners last petition

2. The nature of the offense

3. Positive or negative activities petitioner has participated in since last conviction

4. Victim’s testimony

“SEALING” V. “MARKING AS EXPUNGED”

This Second Chance Law does not treat all criminal records the

same. I.C. 35-38-9-6 (“section 6”) and I.C. 35-38-9-7 (“section 7”)

highlight the differences. Mainly, criminal records that have been

ordered expunged are either sealed or marked as expunged.

SEALING (Section 6)

Applies to all convictions expunged under sections 2 and 3

Records will remain permanently sealed from public access

Marked as Expunged (Section 7)

Applies to all convictions expunged under sections 4 and 5

Records remain public, but must have a notation on the persons

record that the conviction has been expunged

IC 35-38-9-6

SEALING OF THE RECORDS: SECTIONS 2 AND 3Granting of Expungement in Sections 2 or 3 will result in having the

records permanently sealed in:

The sentencing court

The juvenile court

Indiana Court of Appeals and/or Supreme Court if the case had

been appealed.

The granting of the petition under sections 2 or 3 does not affect an

existing or pending driver’s license suspension.

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IC 35-38-9-6

AVAILABILITY OF EXPUNGED RECORDS UNDER IC 35-38-9-2 AND

3

Records Sealed under IC 35-38-9-2 and 3 may be disclosed only to:

Prosecuting Attorney if authorized by Court and needed to carry out official

duties

Defense Attorney if authorized by Court and needed to carry out official

duties

Probation Department if authorized by the Court and needed to prepare a

presentence report (PSI). Probation may provide an un-redacted version of a

PSI to any person authorized by law to receive it

FBI and Department of Homeland Security in compliance with sharing of

criminal history agreements

Indiana Supreme Court and the State Board of Law Examiners to determine

necessary good moral character of an applicant for admission to the bar

Person required to access expunged records to comply with the Secure and

Fair Enforcement for Mortgage Licensing Act

IC 35-38-9-6

ACCESS TO SEALED/EXPUNGED RECORD FOR THE PROSECUTOR

Petitions for Release of sealed/Expunged Records

Prosecutor may submit a written application to the court that

granted the expungement petition to gain access to permanently

sealed records if the records are relevant to a new prosecution of

the petitioner

If granted, the Court shall order the records to be unsealed and

allow access to the records.

If the records are admitted into evidence in a new prosecution that

results in a new conviction or used to enhance a sentence imposed

in the new conviction, the court is NOT required to reseal the

records.

Otherwise the records shall be ordered resealed at the earliest

possible time after the reason for unsealing ceases to exist.

IC 35-38-9-7

EXPUNGEMENT ORDERED UNDER SECTIONS 4 AND 5

Court Records and other public records relating to the arrest,

conviction or sentence remain public records. However, the court

must order that the records be clearly and visibly marked or identified

as being expunged.

The granting of the petition under sections 4 or 5 does not affect an

existing or pending driver’s license suspension.

State Police, BMV and other law enforcement agencies in

possession of records ordered to be marked expunged must add an

entry to the person’s records that the arrest, conviction and/or

sentence is expunged.

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IC 35-38-9-8

INFORMATION THAT MUST BE INCLUDED IN EXPUNGEMENT

PETITION THE PLEADING MUST INCLUDE:

1. The petitioner's full name and all other legal names or aliases by which the petitioner is or has beenknown.

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 requiredfor expungement.

7. The petitioner shall list all convictions and the date of the conviction and any appeals from theconviction 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 prosecutingattorney's written consent to a shorter period.

9. The petitioner shall describe any other petitions that the petitioner has filed under this chapter.

10.The petitioner shall provide evidence that the paid all fines, fees, court costs and satisfied anyrestitution obligation imposed on the person as par of the sentence.

11.The petitioner may include any other information that the petitioner believes may assist the court

For a petition filed under section 5 of this chapter, the petitioner shall attach a copy of the prosecutingattorney's written consent.

IC 35-38-9-8

SERVICE AND NOTIFICATION A copy of the Petition must be served upon the Prosecuting Attorney.

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.

Respond within 30 days of receipt of filing.

IC 35-38-9-9COURT RULINGS

Court may grant petitions if the Prosecutor does not object withouthaving a hearing

Court may summarily deny the petition if it does not meet therequirements of IC 35-38-9-8 or if the statements in the petitiondemonstrate the petitioner is not entitled to relief

If the Prosecutor objects, a hearing shall be set not sooner than 60days after service to the Prosecutor

A victim may submit a written or oral statement in support of or inopposition to the petition at the time of the hearing

The petitioner must prove by a preponderance of the evidence thatthe facts alleged in the verified petition are true

The granting or denial of a petition is an appealable final order.

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IC 35-38-9-9 (G) (H)

FILINGS Petition for Expungement of convictions must be filed in the county of

conviction.

Petition for Expungement must consolidate all convictions from the

same county into one petition.

All Petitions for Expungement must be filed with in those counties

within one (1) 365 day period.

A petitioner may file a petition for expungement only one (1) time

during the petitioner’s lifetime per county.

IC 35-38-9-9

DENIAL OF RELIEF Sections 2-3: Petition for Expungement 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 petition that were not

expunged.

Sections 4-5: Petition denied due to court’s exercise of discretion

under sections 4 or 5 may file a subsequent petition after the elapse

of three (3) years from the date on which the previous expungement

conviction was denied.

IC 35-38-9-9(I)

BEST INTERESTS OF JUSTICE AND GOOD FAITH

PETITIONS

Petitioner may, if permitted by the Court, file a subsequent petition

with respect to one (1) or more convictions not included in the initial

petition only if the Court finds:

1.Permitting the filing is in the best interest of justice, and

2.The petitioner intended in good faith to comply with the

provisions of 9 (g) and (h) and the failure to comply was due to:

a) Excusable neglect or

b) Circumstances beyond the petitioner’s control

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EFFECTS OF A GRANTED PETITION

A granted petition under this law protects petitioners with criminal histories in

several key ways including:

1.Unlawful Use of Expunged Information

2.Civil Rights Restoration

3.Change in Job Application Language

4.Unlawful Discrimination Clause

5.Confidentiality

6.No waiver of expungement in pleas

7.Treated As Never Convicted

IC 35-38-9-10

UNLAWFUL USE OF EXPUNGED INFORMATION It is unlawful discrimination because of a conviction or arrest record

expunged or sealed 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

6.Otherwise discriminate against; any person because of a

conviction or arrest record expunged or sealed under the law.

IC 35-38-9-10

RIGHTS OF PETITIONER Civil Rights of a person who's conviction has been expunged shall be

restored including:

1. the right to vote,

2.hold public office

3.and to serve as a juror.

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JOB APPLICATION LANGUAGE

Any application for employment, 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.

Statutory suggested language: “Have you ever been arrested for or

convicted of a crime that has not been expunged by a court?”

UNLAWFUL DISCRIMINATION

Any person that discriminates against a person who has been

granted expungement commits a Class C infraction and may be held

in contempt of the court ordering the expungement.

Any person may file a written motion of contempt to bring an alleged

violation to the attention of the court and is entitled to injunctive relief.

CONFIDENTIALITY

A petition for expungement and an order for expungement are

confidential.

An expunged conviction is not admissible as evidence in an action

for negligent hiring, admission or licensure against a person or entity

who relied upon the order.

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IC 35-38-9-11

NO WAIVER OF EXPUNGEMENT IN PLEAS A person may not waive the right to expungement under this chapter

as part of a plea agreement. An purported waiver of the right to

expungement is invalid and unenforceable as against public policy.

This does not prohibit the finding of a waiver of the right to

expungement based on a failure to comply with the provisions of

chapter.

TREATED AS NEVER CONVICTED!

I.C. 35-38-9-10(d): A person whose

record is expunged shall be treated as

if the person had never been

convicted of the offense.

WHAT NOW?

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LIST OF ITEMS TO BE OBTAINED BEFORE FILING

FOR AN EXPUNGEMENT Indiana State Police Limited Criminal History report.

Limited Criminal History report from each Indiana county where you have lived or might have been arrested.

Certified copy of Indiana BMV Official Driver’s Record.

Chronological Case Summary (CCS) for each conviction (obtained from the county clerk).

List of all addresses where you have lived since the date of commission of your first offense. (This may be compiled by you, but must be consistent with all addresses listed in your Indiana BMV Official Driver’s Record).

If you have resided outside of Indiana:

A state police criminal history report from every state where you have lived since the commission of your first offense.

A state driving record for every state where you have lived since the commission of you first offense.

STEP 1. GET YOUR COMPLETE CRIMINAL CASE

HISTORY Indiana State Police Limited Criminal History

County Criminal History Report / Chronological Case Summary

from the County Court house

Need to show proof that court costs, fines, fees, and Restitution

were paid

STEP 2. GET YOUR OFFICIAL CERTIFIED DRIVING

RECORD Can only be done online through Indiana BMV website and is

required even if you have never been a licensed driver in Indiana

MUST be the OFFICIAL CERTIFIED RECORD

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STEP 3. GET OFFICIAL DOCUMENTS FROM

PROBATION, COMMUNITY CORRECTIONS, AND

OR INDIANA PAROLE IF NECCESSARY If you had to pay restitution in particular you may need a letter from

probation / parole showing that you satisfied that obligation.

You may also be able to get a print out showing that you have paid

everything from the county clerk / courthouse.

STEP 4. GET YOUR PERSONAL ITEMS

Your full legal name including any other maiden names or aliases that youhave gone by

Your date of birth

A list of all your home addresses, starting with the date of the earliestconviction you are seeking to expunge up to and including your currentaddress

A statement that there are no current criminal investigations or chargespending against you

A statement that you have met the applicable waiting period for expungementor you are providing written consent from the county prosecutor agreeing to ashorter time.

A list of ALL convictions on your criminal record

A list of any other expungement petitions you have filed previously orconcurrently including the county, case number, and filing date of the same.

STEP 5. FILL OUT THE PETITION AND FILE IT

WITH THE COURT Complete the appropriate form as directed for the specific type of conviction(s) you are

trying to expunge.

Attach to your completed form the appropriate supplemental information which should atleast include your Indiana State Police Limited Criminal History Form and Your CertifiedDriving Record and any documents from probation / parole as appropriate.

Carefully read over all your forms and attachments to make sure they are true, correct,and complete.

Make at least Four (4) Copies of your completed papers (One for the Prosecutors Office,One for the County Clerk, One for the Judge, and One to keep for your own records).

Take your forms to the Clerk’s office and file them making sure to get back at least onecopy for your records.

Serve a copy of the petition on the County Prosecutor’s Office for any expungementsought.

Make sure to regularly check the mail for correspondence from the court includinginformation on a possible potential court date.

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STEP 7 POST EXPUNGEMENT

Once your expungement is granted the Court will mail you a copy of

the Expungement Order showing the same.

IT IS YOUR RESPONSIBILITY to provide copies of this order to the

court so that the court can send the granted orders to the applicable

agencies.

PARTIES TO SEND EXPUNGEMENT ORDERS TO

The Indiana Department of Correction

The Bureau of Motor Vehicles

Indiana State Police Records Division

Clerk of the Appellate Courts

For the County in which your record was expunged send notice tothe:

1. County Clerk’s Office

2. County Probation Department

3. County Sherriff

The Law Enforcement Agency that arrested the Petitioner

Any provider that provided services or treatment to Petitioner as aresult of the criminal sentence