Introduced Version
HOUSE BILL No. 1482
_____
DIGEST OF INTRODUCED BILL
Citations Affected: IC 35-38; IC 35-50-2-7.
Synopsis: Expungement. Requires a sentencing court to expunge the
records of certain nonviolent Class D felony and misdemeanor
convictions, and certain delinquency adjudications, if: (1) 10 years
have passed since the person's conviction; (2) the person has not
committed a new offense; and (3) no new charges are pending. Permits
a court to expunge the records of certain nonviolent felony convictions,
and certain delinquency adjudications, if: (1) the later of 10 years have
passed since the person's conviction, or five years have passed since
completion of the person's sentence; (2) the person has not committed
a new offense; and (3) no new charges are pending. Requires a court to
restrict disclosure of certain arrest records, if the arrest: (1) did not
result in a conviction; or (2) resulted in a conviction that was vacated
on appeal. Allows a prosecuting attorney to gain access to sealed
records under certain circumstances. Provides that if a court orders a
person's records to be expunged or restricted, the person: (1) shall be
treated for all purposes as if the person had not been arrested for or
convicted of the felony or misdemeanor recorded in the expunged or
restricted records; and (2) may legally state on an application for
employment or any other document that the person has not been
arrested for or convicted of the felony or misdemeanor recorded in the
expunged records. Specifies that orders restricting or expunging
records apply to the bureau of motor vehicles. Permits a court to
convert certain Class D felonies to Class A misdemeanors if at least
three but less than eight years have elapsed since the person completed
the sentence. (Current law permits conversion of certain Class D
felonies if at least three years have elapsed.) Repeals superseded
provisions concerning expungement and restricted disclosure of
records.
Effective: July 1, 2013.
McMillin, Turner, Porter, Summers
January 22, 2013, read first time and referred to Committee on Courts and Criminal Code.
Introduced
First Regular Session 118th General Assembly (2013)
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HOUSE BILL No. 1482
A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 35-38-5-5.5; (13)IN1482.1.1. -->
SECTION 1. IC 35-38-5-5.5 IS REPEALED [EFFECTIVE JULY
1, 2013].
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.
SOURCE: IC 35-38-8; (13)IN1482.1.2. -->
SECTION 2. IC 35-38-8 IS REPEALED [EFFECTIVE JULY 1,
2013]. (Restricted Access to Conviction Records).
SOURCE: IC 35-38-9; (13)IN1482.1.3. -->
SECTION 3. IC 35-38-9 IS ADDED TO THE INDIANA CODE AS
A
NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2013]:
Chapter 9. Expungement of Conviction Records
Sec. 1. (a) Except as provided in subsection (b), this section
applies to:
(1) a person convicted of a misdemeanor or Class D felony, if:
(A) the misdemeanor or Class D felony is not excluded
under subsection (b); and
(B) at least ten (10) years have passed from the date the
person was convicted of the offense;
(2) a person adjudicated as a delinquent child for committing
an act that, if committed by an adult, would be a
misdemeanor or Class D felony that did not result in injury to
a person if at least ten (10) years have passed from the date
the child was adjudicated for the delinquent act; and
(3) arrest records:
(A) for any arrest that did not result in a conviction or
juvenile adjudication; or
(B) concerning an arrest that resulted in a conviction or
juvenile adjudication and the conviction or adjudication
was vacated on appeal;
regardless of the time that has passed since the time of the
arrest.
(b) This section does not apply to the following:
(1) A sex or violent offender (as defined in IC 11-8-8-5), unless
the offender was convicted of sexual misconduct with a minor
(IC 35-42-4-9) and the offender proves that the defense
described in IC 35-42-4-9(e) applies to the offender.
(2) A person convicted of perjury (IC 35-44.1-2-1) or official
misconduct (IC 35-44.1-1-1).
(3) Records and information required by IC 11-8-8.
(c) Ten (10) years after the date a person was convicted in a case
described in subsection (a)(1) through (a)(2), the person may
petition a sentencing court to expunge from:
(1) a court's files;
(2) the files of the department of correction;
(3) the files of the bureau of motor vehicles; and
(4) the files of any other person who provided treatment or
services to the petitioning person under a court order;
the records concerning the person's involvement in criminal or
juvenile court proceedings.
(d) If the court finds that:
(1) ten (10) years have elapsed since the person was convicted;
(2) the person has not committed a new crime in the ten (10)
years since the conviction;
(3) no charges are pending against the person; and
(4) this section applies to the person;
the court shall grant the expungement petition.
(e) At any time after the arrest of a person described in
subsection (a)(3), the person may petition the sentencing court (if
the person was sentenced), the court in which the person was
charged (if the person was charged), or any court exercising
criminal jurisdiction in Indiana (if the person was not charged or
convicted) to restrict disclosure of records contained in:
(1) a court's files;
(2) the files of the department of correction;
(3) the files of the bureau of motor vehicles; and
(4) the files of any other person who provided treatment or
services to the petitioning person under a court order;
that relate to the person's arrest.
(f) If the court finds that:
(1) the person's arrest:
(A) did not result in a conviction or juvenile adjudication;
or
(B) resulted in a conviction or juvenile adjudication and
the conviction or adjudication was vacated on appeal; and
(2) no charges are pending against the person;
the court shall order disclosure of the arrest records restricted so
that only a criminal justice agency may access the records.
Sec. 2. (a) Except as provided in subsection (b), this section
applies to:
(1) a person convicted of a felony, if:
(A) the felony is not excluded under subsection (b); and
(B) at least:
(i) ten (10) years have passed since the person was
convicted; or
(ii) five (5) years have passed since the person completed
the sentence for the felony, including any other
obligations imposed on the person as a part of the
sentence;
whichever is later; or
(2) a person adjudicated as a child for committing an act that,
if committed by an adult, would be a felony, if at least:
(A) ten (10) years have passed since the child was
adjudicated a delinquent child for committing an act that,
if committed by an adult, would be a felony; or
(B) five (5) years have passed since the child completed the
disposition for the act and satisfied any other obligations
imposed on the child as a part of the disposition;
whichever is later.
(b) This section does not apply to the following:
(1) A sex or violent offender (as defined in IC 11-8-8-5), unless
the offender was convicted of sexual misconduct with a minor
(IC 35-42-4-9) and the offender proves that the defense
described in IC 35-42-4-9(e) applies to the offender.
(2) A person convicted of a felony that resulted in serious
bodily injury to another person.
(3) A person convicted of perjury (IC 35-44.1-2-1) or official
misconduct (IC 35-44.1-1-1).
(4) Records and information required by IC 11-8-8.
(c) After the time period described in subsection (a) has elapsed,
the person may petition a sentencing court to expunge from:
(1) a court's files;
(2) the files of the department of correction;
(3) the files of the bureau of motor vehicles; and
(4) the files of any other person who provided treatment or
services to the petitioning person under a court order;
the records concerning the person's involvement in criminal court
proceedings.
(d) If the court finds that:
(1) the period described in subsection (a) has elapsed from the
date the person completed the person's sentence and satisfied
any other obligations imposed on the person as a part of the
sentence;
(2) the person has not committed a new crime in the period
described in subsection (a);
(3) no charges are pending against the person; and
(4) this section applies to the person;
the court may grant the expungement petition.
Sec. 3. This section does not apply to a petition to restrict
disclosure of arrest records under section 1 of this chapter. If the
court grants the expungement petition of a person under this
chapter, the court shall do the following:
(1) Order:
(A) the department of correction;
(B) the bureau of motor vehicles; and
(C) each:
(i) law enforcement agency; and
(ii) other person;
who incarcerated, provided treatment for, or provided
other services for the person under an order of the court;
to prohibit the release of the person's records or information
in the person's records to anyone without a court order.
(2) Order any:
(A) state;
(B) regional; or
(C) local;
central repository for criminal history information to send the
person's records to the court.
(3) Seal any court records related to the allegation referred to
in section 1 or 2 of this chapter on which a conviction was
based and any proceeding related to the allegation.
(4) Notify the clerk of the supreme court to seal any records
in the clerk's possession concerning:
(A) the allegation described in subdivision (3); or
(B) any proceeding related to the allegation;
if an appeal was taken.
Sec. 4. If an expungement petition of a person is granted under
this chapter, information concerning the person's conviction may
not be placed or retained in any state central repository for
criminal history information.
Sec. 5. (a) This section does not apply to a petition to restrict
disclosure of arrest records under section 1 of this chapter. If an
expungement petition of a person is granted under this chapter, the
records of:
(1) the sentencing court;
(2) a juvenile court;
(3) a court of appeals; and
(4) the supreme court;
concerning the person shall be permanently sealed. Other records
concerning the person may be given to the person or destroyed.
(b) Notwithstanding subsection (a), a prosecuting attorney may
submit a written application to a court that granted an
expungement petition under this chapter to gain access to any
records that were permanently sealed under subsection (a), if the
records are relevant in a new prosecution of the person. If a
prosecuting attorney who submits a written application under this
subsection shows that the records are relevant for a new
prosecution of the person, the court that granted the expungement
petition shall:
(1) order the records to be unsealed; and
(2) allow the prosecuting attorney who submitted the written
application to have access to the records.
If a court orders records to be unsealed under this subsection, the
court shall order the records to be permanently resealed at the
earliest possible time after the reasons for unsealing the records
cease to exist. However, if the records are admitted as evidence
against the person in a new prosecution or are used to enhance a
sentence imposed on the person in a new prosecution, the court is
not required to reseal the records.
Sec. 6. (a) If a person whose records are expunged or restricted
under this chapter brings a civil action that might be defended with
the contents of the records, the defendant is presumed to have a
complete defense to the action.
(b) For the plaintiff to recover in an action described in
subsection (a), the plaintiff must show that the contents of the
expunged or restricted records would not exonerate the defendant.
(c) In an action described in subsection (a), the plaintiff may be
required to state under oath whether:
(1) the plaintiff had records in the criminal justice system;
and
(2) those records were expunged or restricted.
(d) In an action described in subsection (a), if the plaintiff denies
the existence of the records, the defendant may prove the existence
of the records in any manner compatible with the law of evidence.
Sec. 7. If a court orders a person's records to be expunged under
this chapter, the person:
(1) shall be treated for all purposes as if the person had not
been arrested for or convicted of the felony or misdemeanor
recorded in the expunged records; and
(2) may legally state on an application for employment or any
other document that the person has not been arrested for or
convicted of the felony or misdemeanor recorded in the
expunged records.
Sec. 8. If a court orders a person's arrest records restricted
under this chapter, the person:
(1) shall be treated for all purposes as if the person had not
been arrested for the felony or misdemeanor recorded in the
restricted records; and
(2) may legally state on an application for employment or any
other document that the person has not been arrested for the
felony or misdemeanor recorded in the restricted records.
SOURCE: IC 35-50-2-7; (13)IN1482.1.4. -->
SECTION 4. IC 35-50-2-7, AS AMENDED BY P.L.69-2012,
SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2013]: Sec. 7. (a) A person who commits a Class D felony
shall be imprisoned for a fixed term of between six (6) months and
three (3) years, with the advisory sentence being one and one-half (1
1/2) years. In addition, the person may be fined not more than ten
thousand dollars ($10,000).
(b) Notwithstanding subsection (a), if a person has committed a
Class D felony, the court may enter judgment of conviction of a Class
A misdemeanor and sentence accordingly. However, the court shall
enter a judgment of conviction of a Class D felony if:
(1) the court finds that:
(A) the person has committed a prior, unrelated felony for
which judgment was entered as a conviction of a Class A
misdemeanor; and
(B) the prior felony was committed less than three (3) years
before the second felony was committed;
(2) the offense is domestic battery as a Class D felony under
IC 35-42-2-1.3; or
(3) the offense is possession of child pornography
(IC 35-42-4-4(c)).
The court shall enter in the record, in detail, the reason for its action
whenever it exercises the power to enter judgment of conviction of a
Class A misdemeanor granted in this subsection.
(c) Notwithstanding subsection (a), the sentencing court may
convert a Class D felony conviction to a Class A misdemeanor
conviction if, after receiving a verified petition as described in
subsection (d) and after conducting a hearing of which the prosecuting
attorney has been notified, the court makes the following findings:
(1) The person is not a sex or violent offender (as defined in
IC 11-8-8-5).
(2) The person was not convicted of a Class D felony that resulted
in bodily injury to another person.
(3) The person has not been convicted of perjury under
IC 35-44-2-1 IC 35-44.1-2-1 or official misconduct under
IC 35-44-1-2. IC 35-44.1-1-1.
(4) At least three (3) years,
but not more than eight (8) years,
have passed since the person:
(A) completed the person's sentence; and
(B) satisfied any other obligation imposed on the person as
part of the sentence;
for the Class D felony.
(5) The person has not been convicted of a felony since the
person:
(A) completed the person's sentence; and
(B) satisfied any other obligation imposed on the person as
part of the sentence;
for the Class D felony.
(6) No criminal charges are pending against the person.
(d) A petition filed under subsection (c)
or (e) must be verified and
set forth:
(1) the crime the person has been convicted of;
(2) the date of the conviction;
(3) the date the person completed the person's sentence;
(4) any obligations imposed on the person as part of the sentence;
(5) the date the obligations were satisfied; and
(6) a verified statement that there are no criminal charges pending
against the person.
(e) If a person whose Class D felony conviction has been converted
to a Class A misdemeanor conviction under subsection (c) is convicted
of a felony
within not later than five (5) years after the conversion
under subsection (c), a prosecuting attorney may petition a court to
convert the person's Class A misdemeanor conviction back to a Class
D felony conviction.