Expungement of Criminal History
Having a criminal record is not only embarrassing but stands in the way of so many opportunities such as being approved to go on a school field trip with your child or grandchild, being approved for a loan, being approved on a rental application, being eligible for lower insurance premiums, obtaining a handgun license, gaining admission to college, or successfully finding a desirable job.
Misdemeanor and many felony convictions can now be expunged!!!
Effective March 26, 2014 the Indiana legislature acted on an emergency basis to expand the expungement law, empowering courts to expunge most criminal records. The most recent amendments, signed into law by Governor Mike Pence on May 4, 2015 become effective July 1, 2015.
- Arrested or Ticketed But No Charges Ever Filed
- Arrested or Ticketed and Charged But Charges Dismissed
- Criminal Conviction Set Aside
Expungements of arrests or criminal citations that were never charged, expungements of dismissed cases, and expungements of convictions that were set aside are all now possible.
These cases may sometimes seem like there is no need to expunge because there was no conviction. However, that simply (and unfortunately) just isn't true. The adage "innocent until proven guilty" doesn't apply to employers who see that you received an OWI two years ago that was dismissed on a Deferral program. Nor would that employer believe you were innocent of the possession of marijuana charge that was dismissed after you completed a Diversions program.
Also, due to the fact that anytime you are arrested an FBI profile is created, the mere fact that you were arrested but not charged doesn't protect you when applying to any job that does a thorough background check. They will still see the arrest date, what you were arrested for, and very often, the "disposition" on the report indicates that the matter is "pending"!!!!
In short, expunging uncharged and dismissed cases, can be of great benefit to you and your loved ones.
- Convicted of a Misdemeanor
- Class D Felony/Level 6 Felony Conviction Reduced to Misdemeanor
These are the second easiest to expunge. Normally prosecutors don't object to these expungements unless you simply don't meet the requirements (e.g. amount of time elapsed, haven't paid all fines, court costs, restitution, have a new case pending, etc.). The court has no discretion in granting these either. So long as you meet the requirements, the law states the that court "shall" grant the expungement. You must wait until five (5) years after the conviction and not have been convicted of any crimes in the past five (5) years. There is the possibility that the state will consent to a lesser time.
- Convicted of a Class D or Level 6 Felony
From the standpoint of the statute, there really isn't much difference between expunging a Class D/Level 6 Felony conviction versus expunging a misdemeanor conviction. In both situations you must have paid all fines, court costs and restitution. And in both situations, the law says that the court "shall" grant the petition if the requirements are met.
For D Felony convictions though you must wait until eight (8) years after the conviction and have not been convicted of any crimes in the past eight (8) years. There is the possibility that the state will consent to a lesser time.
However, there are some Class D/Level 6 Felony convictions that are either can't be expunged, require more time to pass, or require prosecutor consent. Contact our office for further details and a free consultation.
- Higher Level Felony Convictions
This is where it gets a little more difficult. Here we are talking about various Class A, B, and C Felonies that aren't exempted.
The prosecutor can object on grounds other than procedural. The prosecutor can object and state reasons he/she doesn't agree that the petitioner should be given a second chance. And because the law says that if the requirements are met the court "may" grant the petition, the state's input may be important to the outcome of the case.
If the prosecutor objects, then the court must set the matter for a hearing not sooner than 60 days after the original petition was served on the prosecutor.
If there is a victim of the crime then the state must attempt to provide notice to the victim. The victim can state their position as to whether they oppose or agree to the expungement via a personal appearance at the hearing or via a written statement to the court.
The time period for this category is eight (8) years after conviction or three (3) years after the completion of the sentence whichever is longer. Also, there can be no other convictions in the past eight (8) years. Again, there is the possibility that the state will consent to a lesser time.
Regardless of whether the state objects and regardless of any victim input, the court still has discretion to grant the petition.
- Highest Level Felony Convictions
For even higher level crimes (e.g. some felonies resulting in serious bodily injury) the prosecutor must consent or the court has no discretion to grant an expungement.
The time period one must wait before filing for this highest level of expungement is ten (10) years after the conviction or five (5) years after the completion of the sentence, whichever is longer. Additionally, there can be no other criminal convictions in the past ten (10) years. There is the possibility that the state will consent to a lesser time. Because they have to consent to these expungements anyhow, there is no harm in presenting your situation for review.
- Some Crimes Are Never Eligible For Expungement
Convictions for murder, human or sex trafficking, various sex crimes, official misconduct, and convictions which lead to a “sex or violent offender” designation, can never be expunged.
- Civil Rights Restored
The civil rights restored after an expungement include the right to hold public office, the right to vote, the right to serve as a juror, and if the individual is otherwise qualified, the right to obtain a firearm permit or license.
Domestic violence convictions require a separate legal procedure before gun rights can be restored.
- Life Changing! Get Help!
As is obvious, expunging criminal history can be the one big life-changing break you or a loved one needs! Nonetheless, it is a complex and developing area of law and changes that go into effect on July 1, 2015 will now require the petitions to be filed differently and in different courts.
Be sure to select a knowledgeable advocate if you are in need of expungement services.
Contact us today for a free consultation.