Do you have a criminal record? If so, expungement may be an option for you. Call or email expungement attorney Chris Martindale today at 765-716-6213 or chris.martindale86@gmail.com. Consultations are always free.
The purpose of the recently passed expungement statute is to provide to those with a criminal record, whether it includes convictions or non-convictions, the opportunity for a fresh start. A criminal record can be the basis for discrimination, and employment and housing discrimination are common forms of discrimination that can significantly affect one’s life. As an expungement attorney, I very much enjoy helping people wipe the slate clean and end unfair and unjust discrimination that can come with a criminal record.
Expungement makes discrimination in any fashion unlawful (Class C Infraction) against those who have successfully expunged their records, and people who discriminate can also be held in contempt of Court. Expungement restores a person’s civil rights, including the right to vote, to hold public office, to be a proper person under IC 35-47-1-7(2) (firearm rights), and to serve as a juror. However, people who have a domestic violence conviction have to legally restore their right to possess a firearm separately from any expungement. Expungement law states that a person whose record is expunged shall be treated as if the person had never been convicted of the offense.
A common question is whether ordinance violations and infractions, such as traffic judgments (speeding, seatbelt violations, etc.) can be expunged. Since ordinance violations and infractions are considered to be civil, not criminal in nature, the answer is no. Not to worry, though: almost everybody has a civil record that includes ordinance violations and infractions, including many attorneys and judges!
Expungement Sections
The Indiana Expungement statute breaks down convictions and non-convictions into the following categories, which go from less serious in nature to more serious in nature:
- Section 1: Non-Convictions
- Arrested, charged with an offense, or alleged to be a delinquent child and said events (a) did not result in a conviction or juvenile adjudication or (b) resulted in a conviction or juvenile adjudication that was expunged or vacated on appeal.
- Does Not Include:
- People currently participating in a pretrial diversion program.
- People with pending criminal charges.
- Section 2: Misdemeanors
- Does Not Include:
- A person convicted of two (2) or more felony offenses that:
- (1) involved the unlawful use of a deadly weapon; and
- (2) were not committed as part of the same episode of criminal conduct.
- A person convicted of two (2) or more felony offenses that:
- Does Not Include:
- Section 3: Class D/Level 6 Felonies
- Does Not Include:
- (1) An elected official convicted of an offense while serving the official’s term or as a candidate for public office.
- (2) A sex or violent offender (as defined in IC 11-8-8-5).
- (3) A person convicted of a felony that resulted in bodily injury to another person.
- (4) A person convicted of perjury (IC 35-44.1-2-1) or official misconduct (IC 35-44.1-1-1).
- (5) A person convicted of an offense described in:
- (A) IC 35-42-1; (Homicide)
- (B) IC 35-42-3.5; (Human, sexual trafficking) or
- (C) IC 35-42-4. (Sex Crimes)
- (6) A person convicted of two (2) or more felony offenses that:
- (A) involved the unlawful use of a deadly weapon; and
- (B) were not committed as part of the same episode of criminal conduct.
- Does Not Include:
- Section 4: Felonies higher than Class D/Level 6 Felonies
- Does Not Include:
- (1) An elected official convicted of an offense while serving the official’s term or as a candidate for public office.
- (2) A sex or violent offender (as defined in IC 11-8-8-5).
- (3) A person convicted of a felony that resulted in serious bodily injury to another person.
- (4) A person convicted of a felony that resulted in death to another person.
- (5) A person convicted of official misconduct (IC 35-44.1-1-1).
- (6) A person convicted of an offense described in:
- (A) IC 35-42-1; (Homicide)
- (B) IC 35-42-3.5; (Human, sexual trafficking) or
- (C) IC 35-42-4. (Sex Crimes)
- (7) A person convicted of two (2) or more felony offenses that:
- (A) involved the unlawful use of a deadly weapon; and
- (B) were not committed as part of the same episode of criminal conduct.
- Does Not Include:
- Section 5: Felonies higher than Class D/Level 6 Felonies that are not addressed by Section 4.
- Does Include:
- (1) an elected official convicted of an offense while serving the official’s term or as a candidate for public office; and
- (2) a person convicted of a felony that resulted in serious bodily injury to another person.
- Does Not Include and Not Possible to Expunge:
- (1) A sex or violent offender (as defined in IC 11-8-8-5).
- (2) A person convicted of official misconduct (IC 35-44.1-1-1).
- (3) A person convicted of an offense described in:
- (A) IC 35-42-1; (Homicide)
- (B) IC 35-42-3.5; (Human, Sex Trafficking) or
- (C) IC 35-42-4. (Sex Crimes)
- (4) A person convicted of two (2) or more felony offenses that:
- (A) involved the unlawful use of a deadly weapon; and
- (B) were not committed as part of the same episode of criminal conduct.
- (5) A person convicted of a felony that resulted in death to another person.
- Does Include:
Expungement Requirements
Each Expungement Section has certain requirements to qualify for expungement, which include the following:
- Section 1
- (1) Waiting period: one (1) year after the date of arrest, criminal charge, or juvenile delinquency allegation (whichever is later), if the person was not convicted or adjudicated a delinquent child, or the date of the opinion vacating the conviction or adjudication becomes final.
- Prosecuting attorney can agree in writing to an earlier time.
- (1) Waiting period: one (1) year after the date of arrest, criminal charge, or juvenile delinquency allegation (whichever is later), if the person was not convicted or adjudicated a delinquent child, or the date of the opinion vacating the conviction or adjudication becomes final.
- Section 2
- (1) Waiting period: Five (5) years after the date of conviction.
- Prosecuting attorney can agree in writing to an earlier time.
- (2) no charges are pending against the person;
- (3) the person has paid all fines, fees, and court costs, and satisfied any restitution obligation placed on the person as part of the sentence; and
- (4) the person has not been convicted of a crime within the previous five (5) years.
- Prosecuting attorney can agree in writing to an earlier time.
- (1) Waiting period: Five (5) years after the date of conviction.
- Section 3
- (1) Waiting period: Eight (8) years after the date of conviction.
- Prosecuting attorney can agree in writing to an earlier time.
- (2) no charges are pending against the person;
- (3) the person has paid all fines, fees, and court costs, and satisfied any restitution obligation placed on the person as part of the sentence; and
- (4) the person has not been convicted of a crime within the previous eight (8) years.
- Prosecuting attorney can agree in writing to an earlier time.
- (1) Waiting period: Eight (8) years after the date of conviction.
- Section 4
- (1) Waiting period: The later of eight (8) years from the date of conviction, or three (3) years from the completion of the person’s sentence.
- Prosecuting attorney can agree in writing to an earlier time.
- (2) no charges are pending against the person;
- (3) the person has paid all fines, fees, and court costs, and satisfied any restitution obligation placed on the person as part of the sentence; and
- (4) the person has not been convicted of a crime within the previous eight (8) years.
- Prosecuting attorney can agree in writing to an earlier time.
- (1) Waiting period: The later of eight (8) years from the date of conviction, or three (3) years from the completion of the person’s sentence.
- Section 5
- (1) Waiting period: The later of ten (10) years from the date of conviction, or five (5) years from the completion of the person’s sentence.
- Prosecuting attorney can agree in writing to an earlier time.
- (2) no charges are pending against the person;
- (3) the person has paid all fines, fees, and court costs, and satisfied any restitution obligation placed on the person as part of the sentence;
- (4) the person has not been convicted of a crime within the previous ten (10) years;
- Prosecuting attorney can agree in writing to an earlier time.
- (5) The prosecuting attorney must consent in writing to the expungement.
- (1) Waiting period: The later of ten (10) years from the date of conviction, or five (5) years from the completion of the person’s sentence.
Extent and Court Discretion
Each Expungement Section varies regarding the extent to which a person’s record can be expunged and whether the Court has discretion to grant an expungement or not. However, no matter the extent to which a record is expunged, it is still considered to be expunged.
- Section 1
- Record is sealed and hidden from the public.
- Court must grant expungement as long as all requirements have been met.
- Section 2
- Record is sealed and hidden from the public.
- Some members of government, such as law enforcement and attorneys, can acquire access to record.
- Court must grant expungement as long as all requirements have been met.
- Record is sealed and hidden from the public.
- Section 3
- Record is sealed and hidden from the public.
- Some members of government, such as law enforcement and attorneys, can acquire access to record.
- Court must grant expungement as long as all requirements have been met.
- Record is sealed and hidden from the public.
- Section 4
- Record is marked as expunged and not hidden from the public.
- Court may grant expungement as long as all requirements have been met.
- Section 5
- Record is marked as expunged and not hidden from the public.
- Court may grant expungement as long as all requirements have been met.
If you have a criminal record and would like to pursue expungement, contact expungement lawyer Chris Martindale at 765-716-6213 or chris.martindale86@gmail.com today.