Expungement

It used to be a very real fact that a person convicted of a criminal offense in Indiana would have to live until their dying day with that conviction on their criminal history, visible to any employer who ran a background check.  Happily, this is not always the reality anymore.

Major changes in Indiana’s criminal record statutes have allowed for persons convicted of most criminal offenses to petition the courts to restrict access to their criminal histories to law enforcement agencies only.  This is commonly referred to as “expunging a criminal history.”

The type of conviction controls how long a person has to wait before petitioning for expungement.  Briefly, the time limits are:

  • For cases that were dismissed or did not result in a conviction, a petitioner must wait one year from the date of their arrest.
  • For misdemeanor convictions, a petitioner must wait five years from the date of conviction.
  • For Level 6 Felony convictions, a petitioner must wait eight years from the date of conviction.
  • For most other felony convictions, a petitioner must wait either eight years from the date of their conviction, or three years from the date that they completed their sentence, whichever is later.
  • For serious felony convictions, a petitioner must wait either ten years from the date of their conviction, or five years from the date that they completed their sentence, whichever is later.

The term “completed their sentence” means the date they were successfully released from imprisonment, probation, or parole, whichever was latest.  Sex offenses and murder are NEVER eligible for expungement.  Misdemeanor and Level 6 Felony offenses are automatically granted by the courts is the petition is properly filed, while other felony offenses are at the court’s discretion, which means that the judge can either grant or deny the request.  Many courts are requiring hearings on felony expungement petitions so that the petitioner can argue to the court why they deserve this second chance.

There are certain qualifications that a person seeking an expungement needs to meet.  In addition to having waited the appropriate time as described, above, the petitioner must not have been convicted of a criminal offense during the eight years immediately preceding the filing of a felony expungement, or the five years immediately preceding the filing of a misdemeanor expungement.  The petitioner must not be the defendant in an open criminal case.  The petitioner must also have paid all court costs, fines, probation or other service fees, and fully repaid any restitution owed as part of the original sentence.

It is VERY important that you understand that the expungement statute does NOT destroy or eliminate the conviction.  The only thing that can truly remove a conviction from a person’s criminal history is a pardon from the Governor of Indiana.  The principal benefit of an expungement under this law is that it would prevent others, especially prospective employers, from learning about mistakes that you may have made a decade or more in the past.  The expungement of a felony conviction would also restore the right of a petitioner to hold public office and serve on a jury.  Since an expungement in Indiana will not actually destroy the record of conviction, expunging a felony conviction will not allow a petitioner to own or possess a firearm, which would still be a violation of federal law.  You should also be aware that it would still be necessary for you to disclose the existence of the criminal conviction when filling out certain government forms, such as passport applications.

Obtaining an expungement can be a complicated process.  In addition to the time limits described above, you would need to file a separate petition in EACH county where you have a criminal conviction that you are seeking to expunge.  All of these petitions MUST be filed within one year of each other; failure to properly file within the allowed time frame may mean that it is not possible to obtain an expungement on those charges.

Under the current law, you are only allowed ONE expungement during your lifetime.  Any new criminal offenses committed after obtaining an expungement will truly be permanently visible on your criminal history.  Also, being convicted of a new criminal offense would allow the State to petition to “unseal” any convictions that had been previously expunged.  Finally, failure to file the petition properly WILL result in the petition being denied by the court.

More than in almost any other proceeding, you should hire an attorney when petitioning for an expungement.  The risk of filing the paperwork incorrectly and having your petition denied is too great, and the cost for hiring an attorney may not be as much as you may think.  If you believe that you qualify for an expungement, contact me today, and we can help you to put your past where it belongs, once and for all.