Legislation and Compliance reminder: Indiana Amends the Process to Seal and Expunge Conviction Records

By Michael Klazema on 6/26/2013

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:

Tag Cloud
Recent Posts

Latest News

  • December 04 Chicago Public Schools has dismissed hundreds of employees, coaches, vendors, and volunteers based on background check findings. The district recently vowed to re-check the majority of its 68,000 employees after a Chicago Tribune investigation revealed holes in its background check policies.
  • November 29 Striving to create a safer environment more conducive to productive training and leadership development, the Army has recently moved to adopt a uniform policy of background checks for certain roles. 
  • November 27 California’s biggest public school district is waiving the cost of volunteer background checks. The move is meant to encourage more family - and community members to get involved with the school district.
  • November 22 Contractors play an important role in the workforce, delivering services to both individuals and organizations. Vetting contractors for suitability continues to be a challenge, as two recent articles prove.
  • November 21 When it comes to background and pre-employment checks, it can be instructive to look at the characteristics of the ten most massive U.S. employers.
  • November 20 The #MeToo movement is bringing about legislative changes employers need to know about. We review some of the laws recently passed in California.
  • November 19

    Will a criminal conviction show up on your background check forever? In most states, there is a year limit for how long background check companies can report older criminal information.

  • November 15

    Replacing an inconsistent array of procedures, Ontario's government has passed into law a reform act intended to clarify how police departments should handle requests for information to be used in background checks. 

  • November 14 The federal government has vowed to cut its backlog of security clearance background checks in half by spring. Currently, the backlog is approximately 600,000 names strong.
  • November 12 To ensure the best hires, DFWSPF has implemented a stringent employee screening process—one that includes background searches through