Changes to the Indiana expungement statute occur yearly and are found in Indiana Code § 35-38-9 et. Seq. This blog will focus on the recent amendments to the expungement statute in Indiana, which became effective July 1, 2022. First, let us begin with an overview of the different categories of expungement relief.
Expungement in Indiana consists of five (5) separate categories of expungement relief. Each category has its own requirements as to the type of conviction that qualify for expungement relief. Those categories are the following:
- Arrests and criminal charges that did not lead to a conviction. Ind. Code § 35-38-9-1 (commonly referred to as Section 1 expungements).
- Misdemeanor convictions (Class A, B, and C) and Level 6 Felony/Class D Felony Convictions that received Alternative Misdemeanor Sentence (AMS) treatment. Ind. Code § 35-38-9-2 (commonly referred to as Section 2 expungements).
- Level 6 Felony/Class D felony convictions except for felony battery or criminal recklessness and perjury or official misconduct convictions. Ind. Code § 35-39-9-3 (commonly referred to as Section 3 expungements).
- Most other felony convictions greater than Level 6 Felonies/Class D Felonies (Level 1-5 Felonies and Class A-C felonies) including felony battery or criminal recklessness convictions but does not include a felony that resulted in serious bodily injury to a person. Ind. Code § 35-38-9-4 (commonly referred to as Section 4 expungements).
- Higher level felony convictions (Level 1-5 felonies and Class A-C felonies) including felony that resulted in serious bodily injury to a person. Ind. Code § 35-38-9-5 (commonly referred to as Section 5 expungements).
The expungement statute and categories explained above initially only applied to criminal arrests and convictions. Prior to July 1, 2022, infractions, being civil in nature, could not be expunged under the statute. However, there was a recent change in the expungement statute that now allows certain infractions to be expunged under the statue.
Effective July 1, 2022, Ind. Code § 35-38-9-1 now permits expungements for an arrest if the criminal charges or juvenile delinquency allegation resulted in an adjudication for an infraction. By way of an example, if you were charged with Reckless Driving as a Class C Misdemeanor and your attorney was able to negotiate with the prosecutor an agreed judgment to a Class A infraction, then under the new change to the expungement statute, you are eligible to expungement your Class C Misdemeanor criminal charge that resulted in an adjudication for an infraction. Often times my clients find themselves with a driving infraction that was unable to be expunged from their record. Now, certain infractions are eligible for expungement under Ind. Code § 35-38-9-1.
Another recent amendment to the expungement statute involves defendants participating in a pre-trial diversion program. Previously, expungements under Ind. Code § 35-38-9-1 were prohibited while a person was participating in a pre-trial diversion program. Beginning July 1, 2022, defendants participating in a pre-trial diversion program may seek expungement of their prior arrests and criminal charges that did not result in a conviction if authorized by the prosecuting attorney. Some clients may find themselves with an arrest or criminal charges on their record from years ago that did not result in a conviction and are currently on a pre-trial diversion program. Under the previous statute, the client had to wait until they completely done with their pre-trial diversion program in order to expunge their prior arrests and criminal charges that did not result in a conviction. Now, with the prosecutor’s consent, the client can expunge prior arrests and criminal charges that did not result in a conviction while in the pre-trial diversion program.
Lastly, Ind. Code § 35-38-9-1(b) now provides for automatic expungements of arrests in certain circumstances:
- If a court dismisses all criminal charges or juvenile delinquency allegations filed and pending against a person;
- One (1) year has passed since juvenile delinquency allegations were filed against a child and there is no disposition and the State of Indiana is not actively prosecuting the allegations; or
- If a defendant in a criminal trial is acquitted of all charges or the defendant’s conviction is later vacated or if in a juvenile proceeding, the court finds all allegations not true or the juvenile’s true finding is later vacated.
Under these circumstances, the court must immediately order all records related to the criminal charges or juvenile delinquency allegations expunged. Under the previous statute, there was no method for automatic expungement of arrests.
The Indiana expungement statute was designed to address the barrier of discrimination based on past convictions and arrests. With the Indiana expungement statutes continuing to experience yearly modifications, it is important for individuals seeking to break the barrier of discrimination based on past convictions and arrests to contact an expungement attorney to help navigate the various procedures and provisions related to the expungement statutes. Remember, the expungement statute is a civil remedy and not a right guaranteed in the criminal justice system. Contact Attorney Sundeep Singh now to help you receive the second chance the expungement statute was designed to provide.