A new statute has arisen in Indiana that at least opens the door to limiting access to criminal records of some criminal defendants. Indiana Code Section 35-38-5-5.5 outlines a brand new procedure (effective July 1, 2011) that allows for restricting access to noncriminal-justice agencies under particular circumstances.
Up to this point, expungement of one’s criminal record in Indiana was next to impossible. Before the creation of the new Code Section, the sole relief from one’s permanent record was found at Indiana Code Section 35-38-5-1, which reads:
Petition; grounds; verification; filing; contents; service; notice of opposition; hearing
Sec. 1. (a) Whenever:
(1) an individual is arrested but no criminal charges are filed against the individual; or
(2) all criminal charges filed against an individual are dropped because:
(A) of a mistaken identity;
(B) no offense was in fact committed; or
(C) there was an absence of probable cause;
the individual may petition the court for expungement of the records related to the arrest.
Basically, this was a moot point for most offenders. Let’s take a moment to examine each of the three possibilities for expungement under the old regime. First, one’s record could be expunged where an individual was arrested but no criminal charges were filed. Perhaps this happens from time to time, but in my few years as a Porter County Indiana criminal lawyer I have not encountered this. Let me assure you of one thing: when law enforcement places you in handcuffs, they have found or will find something to charge you with, one way or another. Police don’t go about arresting and detaining random persons. If they do, they eventually find violations to charge the detainee with.
Second, if charges are filed and subsequently dropped, someone within the law enforcement community made a material mistake. Again, whatever attitudes may exist about police officers and law enforcement agencies, they are professionals, and this type of action is not common, to say the least. Again here, the filing and later dropping of charges against an individual have not occurred in my, albeit relatively brief, criminal law experience.
The new Statute reads as follows:
Restricted disclosure of arrest records; petition; hearing
Sec. 5.5. (a) If a person charged with a crime:
(1) is not prosecuted or if charges against the person are dismissed;
(2) is acquitted of all criminal charges; or
(3) is convicted of the crime and the conviction is subsequently vacated;
the person may petition a court to restrict disclosure of the records related to the arrest to a noncriminal justice organization or an individual.
(b) A petition under subsection (a) must be verified and filed in:
(1) the court in which the charges against the person were filed, for a person described in subsection (a)(1); or
(2) the court in which the trial was held, for a person described in subsection (a)(2) or (a)(3).
(c) A petition under subsection (a) must be filed not earlier than:
(1) if the person is acquitted, thirty (30) days after the person is acquitted;
(2) if the person’s conviction is vacated, three hundred sixty-five (365) days after:
(A) the order vacating the person’s conviction is final, if there is no appeal or the appeal is terminated before entry of an opinion or memorandum decision; or
(B) the opinion or memorandum decision vacating the person’s conviction is certified; or
(3) if the person is not prosecuted, thirty (30) days after charges are dismissed, if the charges are not refiled.
(d) A petition under subsection (a) must set forth:
(1) the date of the arrest;
(2) the charge;
(3) the date charges were dismissed, if applicable;
(4) the date of conviction or acquittal, if applicable;
(5) the date the conviction was vacated, if applicable;
(6) the basis on which the conviction was vacated, if applicable;
(7) the law enforcement agency employing the arresting officer;
(8) any other known identifying information, such as the name of the arresting officer, case number, or court cause number;
(9) the date of the petitioner’s birth; and
(10) the petitioner’s Social Security number.
(e) A copy of a petition under subsection (a) shall be served on the prosecuting attorney and the state central repository for records.
(f) If the prosecuting attorney wishes to oppose a petition under subsection (a), the prosecuting attorney shall, not later than thirty (30) days after the petition is filed, file a notice of opposition with the court setting forth reasons for opposing the petition. The prosecuting attorney shall attach to the notice of opposition a certified copy of any documentary evidence showing that the petitioner is not entitled to relief. A copy of the notice of opposition and copies of any documentary evidence shall be served on the petitioner in accordance with the Indiana Rules of Trial Procedure. The court may:
(1) summarily grant the petition;
(2) set the matter for hearing; or
(3) summarily deny the petition, if the court determines that:
(A) the petition is insufficient; or
(B) based on documentary evidence submitted by the prosecuting attorney, the petitioner is not entitled to have access to the petitioner’s arrest records restricted.
(g) If a notice of opposition is filed under subsection (f) and the court does not summarily grant or summarily deny the petition, the court shall set the matter for a hearing.
(h) After a hearing is held under subsection (g), the court shall grant the petition filed under subsection (a), unless the petitioner is being reprosecuted on charges related to the original conviction.
(i) If the court grants a petition filed under subsection (a), the court shall order the state police department not to disclose or permit disclosure of the petitioner’s limited criminal history information to a noncriminal justice organization or an individual under IC 10-13-3-27.
As added by P.L.194-2011, SEC.1.
The key difference here is the word “vacated”, which was not included in the previous Statute. What this most likely means is that now criminal defense attorneys have the ability to negotiate an agreed-upon vacated date into plea agreements, and have access to such arrests and convictions restricted to law enforcement-related agencies only.
Another key change is that the new Statute seems to suggest that deferral agreements and pretrial diversion agreements could potentially lead to access to such access being restricted.
The new Statute also seems to suggest that while it limits access to noncriminal-justice disclosure, it falls short of expungement as common people think of it. It leaves open many implications about particular legitimate interests (e.g. safety) that some employers may have, but it seems to say that all persons outside the law enforcement and criminal justice communities would be prevented from access to such records, upon a justified petition. If this is true, it is somewhat revolutionary in criminal law.
For example, think of a young person who has had a momentary youthful indiscretion in his past. Let’s make it a drinking violation, such as minor consumption of alcohol or public intoxication. In the bigger picture, these are very minor offenses. But, they may prevent this young person from obtaining a job. For instance, this young person has a 2-year degree in heating and refrigeration, and applies to become a technician at a local, small heating and air business. According to the old Statute, the young person would not stand a chance because the small business owner would find these youthful indiscretions with a simple background check and not hire the young person based on increased insurance premiums to operate the company’s service vans. Under the new Statute, the young person’s attorney could negotiate under the terms of the pretrial diversion agreement (which often come about in these types of cases) that noncriminal-justice agencies would not have access to such record(s) of related arrests and charges being filed. Under the new Statute, it appears that this young person would receive a fresh start and gain the opportunity of proving his good moral character (and lack of negligence) to his new employer.
It is unclear how the courts will deal with the ambiguities created by this Statute. As of the date of this Article, no citations to the new Statute had been made, which is quite common in this short time. We at Gordon Etzler & Associates, LLP will keep you informed of any new changes or interpretations of this exciting development in the law.