The Indiana legislature significantly changed the law for the expungement process in 2013. The changes impact the eligibility of persons who have a conviction in their background. It also establishes an unlawful practice to discriminate against persons because of a sealed or expunged criminal record, and provides remedies for violations.
The Act adds Chapter 9 to Indiana Code 35-38 entitled Sealing and Expunging Conviction Records. The changes listed in this Chapter provide the eligibility requirements for the sealing or expungement of criminal records. The following persons are eligible to petition the court to seal or expunge criminal records:
1. Persons who have been arrested, if the arrest did not result in a conviction or juvenile adjudication, or it did and the conviction or adjudication was vacated on appeal. In this circumstance, records may be sealed after one year from the date of arrest.
2. Persons convicted of a misdemeanor, including a Class D felony that was reduced to a misdemeanor. Persons may petition the court to expunge these records after five years from the date of conviction, or sooner if the prosecuting attorney consents.
3. Persons convicted of a Class D felony. This provision may not apply if the Class D felony was reduced to a Class A misdemeanor. A petition may be granted to have this record expunged after eight years from the date of conviction, or sooner if the prosecuting attorney consents. This provision does not apply to elected officials, sex or violent offenders, or persons convicted of a felony that result in bodily injury to another person, perjury, or official misconduct. Other barrier crimes are listed in Indiana Code Sections 35-42-1, 35-42-3.5, or 35-42-4.
4. Persons convicted of a felony. A person may petition the court to expunge these records after eight years from the completion of the persons’ sentence. The eight year period includes the completion of a term of supervised release and the satisfaction of all other obligations placed as part of the sentence. This provision does not apply to an elected official, or a person convicted of a sex or violent crime or felony that resulted in serious bodily injury to another person. Crimes listed in Indiana Code Sections 35-42-1, 35-42-3.5, or 35-42-4 will also disqualify a person from having records expunged under the law.
5. Persons convicted of a felony including elected officials and felonies that resulted in serious bodily injury to another person. Petitions may not be filed until ten years after the completion of the person’s sentence, including the completion of any term of supervised release and the satisfaction of all other obligations placed on the person as part of the sentence. Exceptions to this section include a sex or violent offender and the crimes listed in Indiana Code Sections 35-42-1, 35-42-3.5, or 35-42-4.
The law establishes an unlawful practice in several ways if adverse action is taken against any person because of a sealed or expunged conviction or arrest record. It is now unlawful to suspend, expel, or refuse to employ a person, or to otherwise discriminate against a person for this reason. It is considered discrimination to refuse to admit, grant, or renew a license permit, or certificate necessary to engage in any activity, occupation, or profession based on sealed or expunged records. Employers are permitted to inquire about a previous criminal record only in terms that do not include the disclosure of expunged or sealed records. A person whose record is expunged must be treated as if he or she had never been convicted of the crime.
Any person who is found to have discriminated against a person in violation of this Act commits a Class C infraction and may be held in contempt of court. Other remedies provided in the Act include judicial or administrative claims, and injunctive relief. Finally, the Act prohibits the admission of an expunged record in an action for negligent hiring, admission, or licensure against an employer or other person who relied on this law.
These changes become effective July 1, 2013.
The Act may be viewed here: http://www.in.gov/legislative/bills/2013/PDF/HE/HE1482.1.pdf
About Michael Klazema The author
Michael Klazema is Chief Marketing Technologist at EY-VODW.com and has over two decades of experience in digital consulting, online product management, and technology innovation. He is the lead author and editor for Dallas-based backgroundchecks.com with a focus on human resource and employment screening developments.