IC 35-38-9-3 Expunging Minor Class D and Level 6 Felony Convictions

Sec. 3. (a) Except as provided in subsection (b) and section 8.5 of this chapter, this section applies only to a person convicted of a Class D felony (for a crime committed before July 1, 2014) or a Level 6 felony (for a crime committed after June 30, 2014). This section does not apply to a person if the person’s Class D felony or Level 6 felony was reduced to a Class A misdemeanor.

This section applies to Class D felony and Level 6 felony convictions that are not specifically excluded, such as convictions resulting in injury to another person.

(b) This section does not apply to the following:

(1) An elected official convicted of an offense while serving the official’s term or as a candidate for public office.

This section does not apply to elected officials who were convicted while they were serving in public office or running for public office.

(2) A sex or violent offender (as defined in IC 11-8-8-5).

This section does not apply to people who have convictions for:

Rape (IC 35-42-4-1).

Criminal deviate conduct (IC 35-42-4-2).

Child molesting (IC 35-42-4-3).

Child exploitation (IC 35-42-4-4(b) or IC 35-42-4-4(c)).

Vicarious sexual gratification (including performing sexual conduct in the presence of a minor) (IC 35-42-4-5).

Child solicitation (IC 35-42-4-6).

Child seduction (IC 35-42-4-7).

Sexual misconduct with a minor (IC 35-42-4-9) as a Class A, Class B, or Class C felony (for a crime committed before July 1, 2014) or a Level 1, Level 2, Level 4, or Level 5 felony (for a crime committed after June 30, 2014), unless certain statutory exceptions apply.

Incest (IC 35-46-1-3).

Sexual battery (IC 35-42-4-8).

Kidnapping (IC 35-42-3-2), if the victim is less than eighteen (18) years of age, and the person who kidnapped the victim is not the victim’s parent or guardian.

Criminal confinement (IC 35-42-3-3), if the victim is less than eighteen (18) years of age, and the person who confined or removed the victim is not the victim’s parent or guardian.

Possession of child pornography (IC 35-42-4-4(d) or IC 35-42-4-4(e)).

Promoting prostitution (IC 35-45-4-4) as a Class B felony (for a crime committed before July 1, 2014) or a Level 4 felony (for a crime committed after June 30, 2014).

Promotion of human sexual trafficking under IC 35-42-3.5-1.1.

Promotion of child sexual trafficking under IC 35-42-3.5-1.2(a).

Promotion of sexual trafficking of a younger child (IC 35-42-3.5-1.2(c)).

Child sexual trafficking (IC 35-42-3.5-1.3).

Human trafficking under IC 35-42-3.5-1.4 if the victim is less than eighteen (18) years of age.

Murder (IC 35-42-1-1).

Voluntary manslaughter (IC 35-42-1-3).

Sexual misconduct by a service provider with a detained or supervised child (IC 35-44.1-3-10(c)).

Individuals who are required to register as a sex or violent offender in any jurisdiction.

Juveniles who are over 14 and meet certain statutory requirements.

(3) A person convicted of a felony that resulted in bodily injury to another person.

This section does not apply to criminal convictions where there was injury to another person. Remember that Indiana Law includes “pain” as an injury.

(4) A person convicted of perjury (IC 35-44.1-2-1) or official misconduct (IC 35-44.1-1-1).

This section does not apply to convictions for perjury or official misconduct.

(5) A person convicted of an offense described in:

(A) IC 35-42-1;

This section does not apply to someone who has a conviction for killing another person.

(B) IC 35-42-3.5; or

This section does not apply to someone who has a conviction for human trafficking or sexual trafficking.

(C) IC 35-42-4.

This section does not apply to someone who has a conviction for rape, child molesting, child exploitation, possession of child pornography, vicarious sexual gratification, sexual conduct in presence of a minor, child solicitation, child seduction, sexual battery, sexual misconduct with a minor, unlawful employment by a sexual predator, sex offender residency restrictions, sex offender internet offense, sex offender unmanned aerial vehicle offense, inappropriate communication with a child, or unlawful entry of school property by a serious sex offender.

(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.

This section does not apply to people who have two separate felony convictions that involved the unlawful use of a deadly weapon.

(c) Not earlier than eight (8) years after the date of conviction (unless the prosecuting attorney consents in writing to an earlier period), the person convicted of the Class D felony or Level 6 felony may petition a court to expunge all conviction records, including 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 Class D or Level 6 felony conviction, including records of a collateral action.

A petition to expunge a Class D felony or Level 6 felony conviction under this section can be filed 8 years after the date of the conviction (or earlier if the prosecutor consents in writing).

(d) A person who files a petition to expunge conviction records, including any records relating to the conviction and any records concerning a collateral action, shall file the petition in a circuit or superior court in the county of conviction.

A petition for expungement must be filed in the county of conviction.

(e) If the court finds by a preponderance of the evidence that:

(1) the period required by this section has elapsed;

(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 felony or misdemeanor within the previous eight (8) years (or within a shorter period agreed to by the prosecuting attorney if the prosecuting attorney has consented to a shorter period under subsection (c));

For a Class D felony or Level 6 felony conviction under this section, the Court must grant the petition if all requirements are met.

the court shall order the conviction records described in subsection (c), including any records relating to the conviction and any records concerning a collateral action, expunged in accordance with section 6 of this chapter.

The records will be expunged and sealed. After government records are expunged and sealed, they are not available to the public, but they are not destroyed.

As added by P.L.159-2013, SEC.4. Amended by P.L.181-2014, SEC.9; P.L.142-2015, SEC.3; P.L.219-2019, SEC.9; P.L.52-2021, SEC.3.

IC 35-38-9-4 Expunging Certain Less Serious Felony Convictions

Sec. 4. (a) Except as provided in subsection (b) and section 8.5 of this chapter, this section applies only to a person convicted of a felony who may not seek expungement of that felony under section 3 of this chapter.

This section applies to Class D felony and Level 6 felony convictions that are not eligible for expungement under section 3 (such as convictions that resulted in injury to another person).

(b) This section does not apply to the following:

(1) An elected official convicted of an offense while serving the official’s term or as a candidate for public office.

This section does not apply to elected officials who were convicted while they were serving in public office or running for public office.

(2) A sex or violent offender (as defined in IC 11-8-8-5).

This section does not apply to people who have convictions for:

Rape (IC 35-42-4-1).

Criminal deviate conduct (IC 35-42-4-2).

Child molesting (IC 35-42-4-3).

Child exploitation (IC 35-42-4-4(b) or IC 35-42-4-4(c)).

Vicarious sexual gratification (including performing sexual conduct in the presence of a minor) (IC 35-42-4-5).

Child solicitation (IC 35-42-4-6).

Child seduction (IC 35-42-4-7).

Sexual misconduct with a minor (IC 35-42-4-9) as a Class A, Class B, or Class C felony (for a crime committed before July 1, 2014) or a Level 1, Level 2, Level 4, or Level 5 felony (for a crime committed after June 30, 2014), unless certain statutory exceptions apply.

Incest (IC 35-46-1-3).

Sexual battery (IC 35-42-4-8).

Kidnapping (IC 35-42-3-2), if the victim is less than eighteen (18) years of age, and the person who kidnapped the victim is not the victim’s parent or guardian.

Criminal confinement (IC 35-42-3-3), if the victim is less than eighteen (18) years of age, and the person who confined or removed the victim is not the victim’s parent or guardian.

Possession of child pornography (IC 35-42-4-4(d) or IC 35-42-4-4(e)).

Promoting prostitution (IC 35-45-4-4) as a Class B felony (for a crime committed before July 1, 2014) or a Level 4 felony (for a crime committed after June 30, 2014).

Promotion of human sexual trafficking under IC 35-42-3.5-1.1.

Promotion of child sexual trafficking under IC 35-42-3.5-1.2(a).

Promotion of sexual trafficking of a younger child (IC 35-42-3.5-1.2(c)).

Child sexual trafficking (IC 35-42-3.5-1.3).

Human trafficking under IC 35-42-3.5-1.4 if the victim is less than eighteen (18) years of age.

Murder (IC 35-42-1-1).

Voluntary manslaughter (IC 35-42-1-3).

Sexual misconduct by a service provider with a detained or supervised child (IC 35-44.1-3-10(c)).

Individuals who are required to register as a sex or violent offender in any jurisdiction.

Juveniles who are over 14 and meet certain statutory requirements.

(3) A person convicted of a felony that resulted in serious bodily injury to another person.

This section does not apply to a felony conviction that resulted in serious bodily injury to another. Under IC 35-31.5-2-292, “Serious Bodily Injury” means bodily injury that creates a substantial risk of death; or that causes serious permanent disfigurement, unconsciousness, extreme pain, permanent or protracted loss or impairment of the function of a bodily member or organ, or loss of a fetus.

(4) A person convicted of a felony that resulted in death to another person.

This section does not apply to convictions that resulted in a death.

(5) A person convicted of official misconduct (IC 35-44.1-1-1).

This section does not apply to convictions for official misconduct.

(6) A person convicted of an offense described in:

(A) IC 35-42-1;

This section does not apply to convictions for killing another person.

(B) IC 35-42-3.5; or

This section does not apply to convictions for human trafficking or sexual trafficking.

(C) IC 35-42-4.

This section does not apply to someone who has a conviction for rape, child molesting, child exploitation, possession of child pornography, vicarious sexual gratification, sexual conduct in presence of a minor, child solicitation, child seduction, sexual battery, sexual misconduct with a minor, unlawful employment by a sexual predator, sex offender residency restrictions, sex offender internet offense, sex offender unmanned aerial vehicle offense, inappropriate communication with a child, or unlawful entry of school property by a serious sex offender.

(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.

This section does not apply to people who have two separate felony convictions that involved the unlawful use of a deadly weapon.

(c) Not earlier than the later of eight (8) years from the date of conviction, or three (3) years from the completion of the person’s sentence, unless the prosecuting attorney consents in writing to an earlier period, the person convicted of the felony may petition a court to expunge all conviction records, including 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 felony conviction, including records of a collateral action.

A petition to expunge a Class D felony or Level 6 felony conviction under this section can be filed 8 years after the date of the conviction or 3 years after completion of the sentence (or earlier if the prosecutor consents in writing).

(d) A person who files a petition to expunge conviction records, including any records relating to the conviction and any records concerning a collateral action, shall file the petition in a circuit or superior court in the county of conviction.

A petition for expungement must be filed in the county of conviction.

(e) If the court finds by a preponderance of the evidence that:

(1) the period required by this section has elapsed;

(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 felony or misdemeanor within the previous eight (8) years (or within a shorter period agreed to by the prosecuting attorney if the prosecuting attorney has consented to a shorter period under subsection (c));

the court may order the conviction records described in subsection (c), including any records relating to the conviction and any records concerning a collateral action, marked as expunged in accordance with section 7 of this chapter. A person whose records have been ordered marked as expunged under this section is considered to have had the person’s records expunged for all purposes other than the disposition of the records.

For a Class D felony or Level 6 felony conviction under this section, the Court may grant the petition if all requirements are met, but the Court is not required to grant the petition.

The records will be expunged but are not sealed. The public will still be able to view the records.

As added by P.L.159-2013, SEC.4. Amended by P.L.181-2014, SEC.10; P.L.142-2015, SEC.4; P.L.219-2019, SEC.10; P.L.52-2021, SEC.4.

IC 35-38-9-5 Expunging Certain Serious Felony Convictions; Consent of Prosecutor Required

Sec. 5. (a) Except as provided in subsection (b) and section 8.5 of this chapter, this section applies to a person convicted of a felony, including:

This section applies to convictions that are not eligible for expungement under the other parts of the expungement law, such as public officials and convictions that involve serious bodily injury.

(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.

(b) This section does not apply to the following:

(1) A sex or violent offender (as defined in IC 11-8-8-5).

This section does not apply to people who have convictions for:

Rape (IC 35-42-4-1).

Criminal deviate conduct (IC 35-42-4-2).

Child molesting (IC 35-42-4-3).

Child exploitation (IC 35-42-4-4(b) or IC 35-42-4-4(c)).

Vicarious sexual gratification (including performing sexual conduct in the presence of a minor) (IC 35-42-4-5).

Child solicitation (IC 35-38-9-5).

Child seduction (IC 35-42-4-7).

Sexual misconduct with a minor (IC 35-42-4-9) as a Class A, Class B, or Class C felony (for a crime committed before July 1, 2014) or a Level 1, Level 2, Level 4, or Level 5 felony (for a crime committed after June 30, 2014), unless certain statutory exceptions apply.

Incest (IC 35-46-1-3).

Sexual battery (IC 35-42-4-8).

Kidnapping (IC 35-42-3-2), if the victim is less than eighteen (18) years of age, and the person who kidnapped the victim is not the victim’s parent or guardian.

Criminal confinement (IC 35-42-3-3), if the victim is less than eighteen (18) years of age, and the person who confined or removed the victim is not the victim’s parent or guardian.

Possession of child pornography (IC 35-42-4-4(d) or IC 35-42-4-4(e)).

Promoting prostitution (IC 35-45-4-4) as a Class B felony (for a crime committed before July 1, 2014) or a Level 4 felony (for a crime committed after June 30, 2014).

Promotion of human sexual trafficking under IC 35-42-3.5-1.1.

Promotion of child sexual trafficking under IC 35-42-3.5-1.2(a).

Promotion of sexual trafficking of a younger child (IC 35-42-3.5-1.2(c)).

Child sexual trafficking (IC 35-42-3.5-1.3).

Human trafficking under IC 35-42-3.5-1.4 if the victim is less than eighteen (18) years of age.

Murder (IC 35-42-1-1).

Voluntary manslaughter (IC 35-42-1-3).

Sexual misconduct by a service provider with a detained or supervised child (IC 35-44.1-3-10(c)).

Individuals who are required to register as a sex or violent offender in any jurisdiction.

Juveniles who are over 14 and meet certain statutory requirements.

(2) A person convicted of official misconduct (IC 35-44.1-1-1).

This section does not apply to a person who has a conviction for official misconduct.

(3) A person convicted of an offense described in:

(A) IC 35-42-1;

This section does not apply to convictions for killing another person.

(B) IC 35-42-3.5; or

This section does not apply to convictions for human trafficking or sexual trafficking.

(C) IC 35-42-4.

This section does not apply to someone who has a conviction for rape, child molesting, child exploitation, possession of child pornography, vicarious sexual gratification, sexual conduct in presence of a minor, child solicitation, child seduction, sexual battery, sexual misconduct with a minor, unlawful employment by a sexual predator, sex offender residency restrictions, sex offender internet offense, sex offender unmanned aerial vehicle offense, inappropriate communication with a child, or unlawful entry of school property by a serious sex offender.

(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.

This section does not apply to people who have two separate felony convictions that involved the unlawful use of a deadly weapon.

(5) A person convicted of a felony that resulted in death to another person.

This section does not apply to convictions that resulted in the death of another person.

(c) Not earlier than the later of ten (10) years from the date of conviction, or five (5) years from the completion of the person’s sentence, unless the prosecuting attorney consents in writing to an earlier period, the person convicted of the felony may petition a court to expunge all conviction records, including 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 felony conviction, including records of a collateral action.

A petition to expunge a serious felony conviction can be filed 10 years after the date of conviction or 5 years after completion of the sentence (or earlier if the prosecutor consents in writing).

(d) A person who files a petition to expunge conviction records, including any records relating to the conviction and any records concerning a collateral action, shall file the petition in a circuit or superior court in the county of conviction.

A petition for expungement must be filed in the county of conviction.

(e) If the court finds by a preponderance of the evidence that:

(1) the period required by this section has elapsed;

(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 felony or misdemeanor within the previous ten (10) years (or within a shorter period agreed to by the prosecuting attorney if the prosecuting attorney has consented to a shorter period under subsection (c)); and

(5) the prosecuting attorney has consented in writing to the expungement of the person’s criminal records;

A petition for expungement under this section requires the prosecutor to agree in writing that the person can seek expungement. Under this section, if the prosecutor does not give written consent, the petition cannot be filed.

the court may order the conviction records described in subsection (c), including any records relating to the conviction and any records concerning a collateral action, marked as expunged in accordance with section 7 of this chapter. A person whose records have been ordered marked as expunged under this section is considered to have had the person’s records expunged for all purposes other than the disposition of the records.

The records will be expunged but are not sealed. The public will still be able to view the records.

As added by P.L.159-2013, SEC.4. Amended by P.L.181-2014, SEC.11; P.L.142-2015, SEC.5; P.L.219-2019, SEC.11; P.L.52-2021, SEC.5.

IC 35-38-9-6 Effect of Expunging Misdemeanor and Minor Class D and Level 6 Felony Convictions

Sec. 6. (a) If the court orders conviction records, including any records relating to the conviction and any records concerning a collateral action, expunged under sections 2 through 3 of this chapter, the court shall do the following with respect to the specific records expunged by the court:

(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, prosecuted, 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, other than a law enforcement officer acting in the course of the officer’s official duty.

(2) Order the central repository for criminal history information maintained by the state police department to seal the person’s expunged conviction records, including information related to:

(A) an arrest or offense:

(i) in which no conviction was entered; and

(ii) that was committed as part of the same episode of criminal conduct as the case ordered expunged; and

(B) any other references to any matters related to the case ordered expunged, including in a collateral action.

This subdivision does not require the state police department to seal any record the state police department does not have legal authority to seal.

(3) Records sealed under subdivision (2) may be disclosed only to:

(A) a prosecuting attorney, if:

(i) authorized by a court order; and

(ii) needed to carry out the official duties of the prosecuting attorney;

(B) a defense attorney, if:

(i) authorized by a court order; and

(ii) needed to carry out the professional duties of the defense attorney;

(C) a probation department, if:

(i) authorized by a court order; and

(ii) necessary to prepare a presentence report;

(D) the Federal Bureau of Investigation and the Department of Homeland Security, if disclosure is required to comply with an agreement relating to the sharing of criminal history information;

(E) the:

(i) supreme court;

(ii) members of the state board of law examiners;

(iii) executive director of the state board of law examiners; and

(iv) employees of the state board of law examiners, in accordance with rules adopted by the state board of law examiners;

for the purpose of determining whether an applicant possesses the necessary good moral character for admission to the bar;

(F) a person required to access expunged records to comply with the Secure and Fair Enforcement for Mortgage Licensing Act (12 U.S.C. 5101 et seq.) or regulations adopted under the Secure and Fair Enforcement for Mortgage Licensing Act;

(G) the bureau of motor vehicles, the Federal Motor Carrier Administration, and the Commercial Drivers License Information System (CDLIS), if disclosure is required to comply with federal law relating to reporting a conviction for a violation of a traffic control law; and

(H) a school (as defined in IC 22-4-2-37), for the purpose of determining whether to:

(i) employ a person seeking employment, including volunteer employment, with the school;

(ii) continue a person’s employment, including volunteer employment at the school; or

(iii) grant access or admission to the school to an applicant contractor or a contractor;

if the person, contractor, or applicant contractor is likely to have contact with a student enrolled in the school, regardless of the age of the student.

(4) Notify the clerk of the supreme court to seal any records in the clerk’s possession that relate to the conviction, including any records concerning a collateral action.

A probation department may provide an unredacted version of a presentence report disclosed under subdivision (3)(C) to any person authorized by law to receive a presentence report.

(b) Except as provided in subsection (c), if a petition to expunge conviction records, including any records relating to the conviction and any records concerning a collateral action, is granted under sections 2 through 3 of this chapter, the records of:

(1) the sentencing court;

(2) a court that conducted a collateral action;

(3) a juvenile court;

(4) a court of appeals; and

(5) the supreme court;

concerning the person shall be permanently sealed. However, a petition for expungement granted under sections 2 through 3 of this chapter does not affect an existing or pending driver’s license suspension.

(c) If a petition to expunge conviction records, including any records relating to the conviction and any records concerning a collateral action, is granted under sections 2 through 3 of this chapter with respect to the records of a person who is named as an appellant or an appellee in an opinion or memorandum decision by the supreme court or the court of appeals, or who is identified in a collateral action, the court shall:

(1) redact the opinion or memorandum decision as it appears on the computer gateway administered by the office of technology so that it does not include the petitioner’s name (in the same manner that opinions involving juveniles are redacted); and

(2) provide a redacted copy of the opinion to any publisher or organization to whom the opinion or memorandum decision is provided after the date of the order of expungement.

The supreme court and court of appeals are not required to destroy or otherwise dispose of any existing copy of an opinion or memorandum decision that includes the petitioner’s name.

(d) Notwithstanding subsection (b), 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 (b), 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 that results in the person’s conviction, or are used to enhance a sentence imposed on the person in a new prosecution, the court is not required to reseal the records.

(e) If a person whose conviction records, including any records relating to the conviction and any records concerning a collateral action, are expunged under sections 2 through 5 of this chapter is required to register as a sex offender based on the commission of a felony which has been expunged:

(1) the expungement does not affect the operation of the sex offender registry web site, any person’s ability to access the person’s records, records required to be maintained concerning sex or violent offenders, or any registration requirement imposed on the person; and

(2) the expunged conviction records must be clearly marked as expunged on the sex offender registry web site.

(f) Expungement of a crime of domestic violence under section 2 of this chapter does not restore a person’s right to possess a firearm. The right of a person convicted of a crime of domestic violence to possess a firearm may be restored only in accordance with IC 35-47-4-7.

(g) If a court issues an order granting a petition for expungement under sections 2 through 3 of this chapter, the court shall also order any related records described in section 1(h) of this chapter sealed or redacted in the manner described in section 1 of this chapter, unless the records described in section 1(h) of this chapter have been ordered sealed and redacted under this section.

(h) If the court issues an order granting a petition for expungement under sections 2 through 3 of this chapter, the court shall include in its order the information described in section 8(b) of this chapter.

(i) If the court issues an order granting a petition for expungement under sections 2 through 5 of this chapter, the court shall include in its order the information described in section 10(c) of this chapter.

Expungement for cases that resulted in conviction under sections 4 and 5 (such as major felony convictions and felony with injury convictions) will result in expungement but NOT sealing. If the individual has a CDL, driving cases will not be expunged from the driving record. If an individual has a domestic violence conviction, firearm rights are not restored unless a separate petition to restore firearm rights is granted. No records are destroyed and will be visible to the public. On a background check, the case will still appear but will have an asterisk next to the case explaining that the case has been expunged.

As added by P.L.159-2013, SEC.4. Amended by P.L.181-2014, SEC.12; P.L.142-2015, SEC.6; P.L.198-2016, SEC.671; P.L.219-2019, SEC.12; P.L.14-2022, SEC.2; P.L.185-2023, SEC.6.

IC 35-38-9-7 Effect of Expunging Serious and Less Serious Felony Convictions

Sec. 7. (a) This section applies only to a person who has filed a petition for expungement under section 4 or 5 of this chapter and whose records have been ordered marked as expunged.

(b) The court records and other public records relating to the arrest, conviction, or sentence of a person whose conviction records, including any records relating to the conviction and any records concerning a collateral action, have been marked as expunged remain public records. However, the court shall order that the records be clearly and visibly marked or identified as being expunged. A petition for expungement granted under sections 4 through 5 of this chapter does not affect an existing or pending driver’s license suspension.

(c) The state police department, the bureau of motor vehicles, and any other law enforcement agency in possession of records that relate to the conviction, including any records concerning a collateral action, ordered to be marked as expunged shall add an entry to the person’s record of arrest, conviction, or sentence in the criminal history data base stating that the record is marked as expunged. Nothing in this chapter prevents the bureau of motor vehicles from reporting information about a conviction for a violation of a traffic control law to the Commercial Drivers License Information System (CDLIS), in accordance with federal law, even if the conviction has been expunged under section 4 or 5 of this chapter.

(d) If the court issues an order granting a petition for expungement under section 4 or 5 of this chapter, the court shall include in its order the information described in section 8(b) of this chapter.

(e) If a court issues an order granting a petition for expungement under sections 4 through 5 of this chapter, the court shall also order any related records described in section 1(h) of this chapter marked as expunged, unless the records described in section 1(h) of this chapter have been ordered marked as expunged under this section.

Expungement for cases that resulted in acquittal, misdemeanor conviction under section 2, or Level 6 and Class D felony conviction under section 3 will result in expungement and sealing. However, if the individual has a CDL, driving cases will not be removed from the driving record. If an individual has a domestic violence conviction, firearm rights are not restored unless a separate petition to restore firearm rights is granted. Sealed records are generally not available to the public but such records are not destroyed.

As added by P.L.159-2013, SEC.4. Amended by P.L.181-2014, SEC.13; P.L.142-2015, SEC.7; P.L.198-2016, SEC.672; P.L.219-2019, SEC.13; P.L.14-2022, SEC.3.

IC 35-38-9-8 Petition to Expunge Conviction Records

Sec. 8. (a) This section applies only to a petition to expunge conviction records, including any records relating to the conviction and any records concerning a collateral action, under sections 2 through 5 of this chapter. This section does not apply to a petition to expunge records related to the arrest, criminal charge, or juvenile delinquency allegation under section 1 of this chapter.

The following applies to petitions to expunge convictions (not acquittals).

(b) Any person may seek an expungement under sections 2 through 5 of this chapter by filing a verified petition for expungement. The petition must include the following:

Expungement petitions must be verified in compliance with the Indiana Rules of Trial Procedure.

(1) The petitioner’s full name and all other legal names or aliases by which the petitioner is or has been known.

Expungement petitions must contain all names that an individual has used (even if the names were misspellings in the court or jail records).

(2) The petitioner’s date of birth.

Expungement petitions must contain the date of birth (but not on the redacted version of the petition).

(3) The petitioner’s addresses from the date of the offense to the date of the petition.

Expungement petitions must contain addresses from the date of the offense to the present.

(4) The case number or court cause number, if available.

Expungement petitions must contain the case number.

(5) The petitioner shall affirm that no criminal investigation or charges are pending against the petitioner.

Expungement petitions must contain an affirmation by the petitioner that there are no pending criminal cases or criminal investigations (this does not apply to civil matters).

(6) The petitioner shall affirm that the petitioner has not committed another felony or misdemeanor within the period required for expungement.

Expungement petitions must contain an affirmation by the petitioner that they meet the requisite timelines.

(7) The petitioner shall list all convictions, all collateral actions, the cause number of each conviction, if known, the date of the conviction, and any appeals from the conviction and the date any appellate opinion was handed down, if applicable.

Expungement petitions must contain all convictions and related actions, as well as the case number, the date of conviction, and relevant appellate information.

(8) The petitioner shall include:

(A) the petitioner’s Social Security number;

Expungement petitions must contain the Social Security number (but only on the confidential version of the petition).

(B) the petitioner’s driver’s license number;

Expungement petitions must contain the driver’s license number (but only on the confidential version of the petition).

(C) the date of the petitioner’s arrest, if applicable; and

Expungement petitions must contain the date of arrest (use the date listed on mycase.in.gov if there was a summons).

(D) the date on which the petitioner was convicted.

Expungement petitions must contain the date of conviction.

(9) The petitioner shall affirm that the required period has elapsed or attach a copy of the prosecuting attorney’s written consent to a shorter period.

Expungement petitions must contain an affirmation statement by the petitioner that they meet the time requirements or must contain a written copy of the prosecutor’s consent to file early.

(10) The petitioner shall describe any other petitions that the petitioner has filed under this chapter.

Expungement petitions must contain a description of all other expungement petitions that have been filed.

(11) For a petition filed under section 5 of this chapter, the petitioner shall attach a copy of the prosecuting attorney’s written consent.

Expungements that require prosecutor’s written consent must include the prosecutor’s written consent.

(c) The petitioner may include any other information that the petitioner believes may assist the court.

Expungement petitions may contain any additional information that the petitioner wishes to provide to the court, such as letters of recommendation, school transcripts, proof of employment, etc.

(d) A person who files a petition under this section is required to pay the filing fee required in civil cases. The court may reduce or waive this fee if the person is indigent.

Expungement petitions require payment of the filing fee.

(e) The petitioner shall serve a copy of the petition upon the prosecuting attorney in accordance with the Indiana Rules of Trial Procedure.

The petitioner is responsible for serving the petition upon the state through the prosecutor.

(f) The prosecuting attorney shall inform the victim of the victim’s rights under IC 35-40-6 by contacting the victim at the victim’s last known address. However, if a court has no discretion in granting an expungement petition under this chapter, the prosecuting attorney is not required to inform the victim of the victim’s rights under this subsection.

The prosecutor is responsible for attempting to contact the victim if the court has discretion to deny the petition.

(g) The prosecuting attorney shall reply to the petition not later than thirty (30) days after receipt. If the prosecuting attorney fails to timely reply to the petition:

The prosecutor has 30 days to file a reply (but can request a 30-day extension under the Indiana Rules of Trial Procedure).

(1) the prosecuting attorney has waived any objection to the petition; and

If the prosecutor fails to reply, the prosecutor has waived any objection.

(2) the court shall proceed to consider the petition under section 9 of this chapter.

If the prosecutor fails to reply, the court shall move forward with the petition.

As added by P.L.159-2013, SEC.4. Amended by P.L.181-2014, SEC.14; P.L.142-2015, SEC.8; P.L.219-2019, SEC.14; P.L.52-2021, SEC.6.

IC 35-38-9-8.5 Expungement of Certain Offenses Punishable by an Indeterminate Sentence

Sec. 8.5. (a) This section applies only to a person seeking to expunge an Indiana offense punishable by an indeterminate sentence under a law other than IC 35-50.

(b) If the offense for which the person was convicted is a misdemeanor at the time the person files the petition for expungement, the person may file the petition for expungement under section 2 of this chapter.

(c) If the offense for which the person was convicted:

(1) is a Level 6 felony at the time the person files the petition for expungement; and

(2) is not substantially similar to an offense described in section 3(b) of this chapter;

the person may file the petition under section 3 of this chapter.

(d) If:

(1) the person to whom this chapter applies may not seek expungement under section 3 of this chapter; and

(2) the offense the person seeks to expunge is not substantially similar to an offense described in section 4(b) of this chapter;

the person may file the petition under section 4 of this chapter.

(e) If the offense for which the person was convicted:

(1) is a felony at the time of filing the petition, including a felony described in section 5(a) of this chapter; and

(2) is not substantially similar to an offense described in section 5(b) of this chapter;

the person may file the petition under section 5 of this chapter.

As added by P.L.142-2015, SEC.9.

It is very unlikely that this section will apply to most people. This section applies to very old criminal convictions prior to the adoption of modern criminal law (where sentencing ranges are predefined). If there is such a conviction, it is treated as what it would be substantially similar to today. If there is nothing that it would be substantially similar to today, then it is expunged under section 5.

IC 35-38-9-9 Duties of Court in Ruling on Expungement Petitions

Sec. 9. (a) If the prosecuting attorney does not object, or has waived objection to the petition under section 8 of this chapter, the court may grant the petition for expungement without a hearing.The court can grant an expungement petition without a hearing when the prosecutor does not object or when the prosecutor fails to file a timely response. The court is not required to waive the hearing.

(b) The court may summarily deny a petition, if the petition does not meet the requirements of section 8 of this chapter, or if the statements contained in the petition demonstrate that the petitioner is not entitled to relief.

The court can deny an expungement petition without a hearing if there are procedural defects or if the petitioner is not entitled to relief. (Be mindful that there is one expungement per lifetime.)

(c) If the prosecuting attorney objects to the petition, the prosecuting attorney shall file the reasons for objecting to the petition with the court and serve a copy of the objections on the petitioner at the time the prosecuting attorney objects to the petition. The court shall set the matter for hearing not sooner than sixty (60) days after service of the petition on the prosecuting attorney.

If the prosecutor objects to the expungement petition, the prosecutor must state the reasons for the objection and the case shall be set for a hearing in 60 days or more.

(d) A victim of the offense for which expungement is sought may submit an oral or written statement in support of or in opposition to the petition at the time of the hearing. The petitioner must prove by a preponderance of the evidence that the facts alleged in the verified petition are true.

The victim can submit a statement.

(e) The grant or denial of a petition is an appealable final order.

If an expungement is granted or denied, this is treated as a final order for the purposes of the deadlines set out in the Indiana Rules of Appellate Procedure.

(f) If the court grants the petition for expungement, the court shall issue an order of expungement as described in sections 6 and 7 of this chapter.

If the court grants the order, the order must comply with Indiana Expungement Law. (Keep in mind that the court can require the petitioner to submit a proposed order.)

(g) The order granting the petition for expungement described in sections 6 and 7 of this chapter must include the information described in section 8(b) of this chapter.

If the court grants the order, the order must contain the same identifying information that was contained in the petition.

(h) This subsection applies only to a petition to expunge conviction records filed under sections 2 through 5 of this chapter. This subsection does not apply to a petition to expunge records related to the arrest, criminal charge, or juvenile delinquency allegation under section 1 of this chapter. A petitioner may seek to expunge more than one (1) conviction at the same time. The petitioner shall consolidate all convictions that the petitioner wishes to expunge from the same county in one (1) petition. A petitioner who wishes to expunge convictions from separate counties must file a petition in each county in which a conviction was entered.

For convictions, each county requires a separate petition. However, multiple convictions in the same county can be filed in a single petition.

(i) This subsection applies only to a petition to expunge conviction records filed under sections 2 through 5 of this chapter. This subsection does not apply to a petition to expunge records related to the arrest, criminal charge, or juvenile delinquency allegation under section 1 of this chapter. Except as provided in subsections (j) and (k), a petitioner may file a petition for expungement only one (1) time during the petitioner’s lifetime. For purposes of this subsection, all petitions for expungement filed in separate counties for offenses committed in those counties count as one (1) petition if they are filed in one (1) three hundred sixty-five (365) day period.

For convictions, an individual can file for expungement only once per lifetime.

(j) A petitioner whose petition for expungement has been denied, in whole or in part, may refile that petition for expungement, in whole or in part, with respect to one (1) or more convictions included in the initial expungement petition that were not expunged. However, if the petition was denied due to the court’s exercise of its discretion under section 4 or 5 of this chapter, a petition for expungement may be refiled only after the elapse of three (3) years from the date on which the previous expungement petition was denied. Except as provided in subsection (k), a refiled petition for expungement may not include any conviction that was not included in the initial expungement petition.

If a petition for expungement is denied due to the court’s discretion, the petitioner can refile after 3 years but cannot add any convictions that were not included in the original petition.

(k) A court may permit a petitioner to file an amended petition for expungement with respect to one (1) or more convictions that were not included in the initial expungement petition only if the court finds that:

(1) the petitioner intended in good faith to comply with subsections (h) and (i);

(2) the petitioner’s failure to comply with subsections (h) and (i) was due to:

(A) excusable neglect; or

(B) circumstances beyond the petitioner’s control; and

(3) permitting the petitioner to file a subsequent petition for expungement is in the best interests of justice.

The court may allow an amendment to the petition to add additional convictions, but only if it is in the best interests of justice and the petitioner acted in good faith, and the failure to include the conviction was due to excusable neglect or circumstances beyond the petitioner’s control.

(l) If:

(1) the information required to be expunged, marked as expunged, or otherwise sealed or restricted under this chapter changes as the result of an amendment to this chapter; and

(2) a person whose petition for expungement was granted before the effective date of the amendment wishes to obtain the benefits of that amendment;

the person may file a petition for a supplemental order of expungement with the court that granted the petition for expungement. A petition for a supplemental order of expungement must include a copy of the expungement order, succinctly set forth the relief the petitioner seeks, and include any other information required by the court. If the court finds that the person was granted an order for expungement before the effective date of the amendment and is otherwise entitled to relief, the court shall issue a supplemental order for expungement consistent with the amendment.

If a person wants an updated expungement order due to changes in Indiana law, they are entitled to an updated order.

As added by P.L.159-2013, SEC.4. Amended by P.L.181-2014, SEC.15; P.L.142-2015, SEC.10; P.L.219-2019, SEC.15.

IC 35-38-9-9.5 Collateral Action in a Different County

Sec. 9.5. (a) This section applies to a collateral action adjudicated or conducted in a county other than the county in which a court granted an expungement.

(b) Upon receipt of a request to expunge records related to a collateral action and a properly certified expungement order, a circuit or superior court in the county in which the collateral action occurred shall:

(1) notify the prosecuting attorney of the county in which the court is located of the request to expunge records related to a collateral action and set the matter for hearing; or

(2) if it conclusively appears from the court’s records that the person is entitled to expungement as described in subsection (c), order the records expunged without a hearing.

(c) The circuit or superior court in the county in which the collateral action was adjudicated or conducted shall order records of the collateral action expunged (for an expungement granted under sections 1 through 3 of this chapter) or marked as expunged (for an expungement granted under sections 4 through 5 of this chapter), unless the court finds that the collateral action does not relate to the expunged arrest or conviction.

(d) A request to expunge records of a collateral action may be made at any time after the original expungement order is issued.

(e) A request to expunge records shall be filed under the cause number of the collateral action, if applicable. A person who requests expungement of records of a collateral action under this section is not required to pay a filing fee, even if the request is filed under a new cause of action.

If there are collateral cases relating to an underlying case, upon receipt of a petition to expunge the collateral action, the court can grant the petition without a hearing, or the court can serve the state and set the matter for a hearing. There is no filing fee.

As added by P.L.55-2020, SEC.10.

IC 35-38-9-10 Unlawful Discrimination Against a Person Whose Record Has Been Expunged; Exceptions

Sec. 10. (a) This section does not apply to a person to whom sealed records may be disclosed under section 6(a)(3) of this chapter. With respect to a person seeking employment with a law enforcement agency or a probation or community corrections department, including volunteer employment, subsections (b), (d), (e), and (f) do not apply to the law enforcement agency or the probation or community corrections department.

Many government entities and licensing boards are allowed to view expunged records and consider the expunged records.

(b) It is unlawful discrimination for any person to:

(1) suspend;

(2) expel;

(3) refuse to employ;

(4) refuse to admit;

(5) refuse to grant or renew a license, permit, or certificate necessary to engage in any activity, occupation, or profession; or

(6) otherwise discriminate against;

any person because of a conviction or arrest record expunged or sealed under this chapter.

It is generally unlawful to discriminate against someone based on an expunged case (although this does not apply to many government entities and licensing boards).

(c) Except as provided in section 6(f) of this chapter, the civil rights of a person whose conviction has been expunged shall be fully restored, including the right to vote, to hold public office, to be a proper person under IC 35-47-1-7(2), and to serve as a juror.

Once expungement is granted, an individual’s civil rights are generally restored. Remember that for a domestic violence conviction, a separate Petition to Restore Firearm Rights must be filed.

(d) In any application for employment, a license, or other right or privilege, a person may be questioned about a previous criminal record only in terms that exclude expunged convictions or arrests, such as: “Have you ever been arrested for or convicted of a crime that has not been expunged by a court?”.

In applications, they cannot ask whether you have had an expungement.

(e) A person whose record is expunged shall be treated as if the person had never been convicted of the offense. However, upon a subsequent arrest or conviction for an unrelated offense, the prior expunged conviction:

(1) may be considered by the court in determining the sentence imposed for the new offense;

(2) is a prior unrelated conviction for purposes of:

(A) a habitual offender enhancement; and

(B) enhancing the new offense based on a prior conviction; and

(3) may be admitted as evidence in the proceeding for a new offense as if the conviction had not been expunged.

Expunged records can be considered if the individual is arrested again in the future.

(f) Any person that discriminates against a person as described in subsection (b) commits a Class C infraction and may be held in contempt by the court issuing the order of expungement or by any other court of general jurisdiction. Any person may file a written motion of contempt to bring an alleged violation of this section to the attention of a court. In addition, the person is entitled to injunctive relief.

If there is a violation of the expungement statute, an individual may request relief from the court, including contempt and injunctive relief.

(g) In any judicial or administrative proceeding alleging negligence or other fault, an order of expungement may be introduced as evidence of the person’s exercise of due care in hiring, retaining, licensing, certifying, admitting to a school or program, or otherwise transacting business or engaging in activity with the person to whom the order of expungement was issued.

An employer may introduce the expungement order in their own defense if it is alleged that they were negligent in hiring the person.

(h) A conviction, including any records relating to the conviction and any records concerning a collateral action, that has been expunged under this chapter is not admissible as evidence in an action for negligent hiring, admission, or licensure against a person or entity who relied on the order.

An expungement order cannot be used against an employer in a suit for negligent hiring.

(i) An expungement case, and all documents filed in the case, becomes confidential when the court issues an expungement order. However, until the court issues an expungement order, documents filed in the case are not confidential, and any hearing held in the case shall be open.

An expungement case is confidential after the expungement is granted (but not before).

As added by P.L.159-2013, SEC.4. Amended by P.L.181-2014, SEC.16; P.L.142-2015, SEC.11; P.L.219-2019, SEC.16; P.L.55-2020, SEC.11; P.L.14-2022, SEC.4.

IC 35-38-9-11 Waiver of Expungement in a Plea Agreement Invalid

Sec. 11. (a) A person may not waive the right to expungement under this chapter as part of a plea agreement. Any purported waiver of the right to expungement in a plea agreement is invalid and unenforceable as against public policy.

(b) This section does not prohibit the finding of a waiver of the right to expungement based on a failure to comply with the provisions of this chapter.

This section is relatively straightforward. If a plea agreement contains a provision stating that the individual waives the right to expungement, this provision is not valid.

As added by P.L.181-2014, SEC.17.

IC 35-38-9-12 Penalties for Disclosing an Expunged Conviction

Sec. 12. A criminal history provider (as defined in IC 24-4-18-2) that provides a criminal history report containing an expunged conviction is subject to the penalties described in IC 24-4-18-8.

Entities that compile criminal history information (this does not include law enforcement agencies, the clerk, or media) cannot provide expunged convictions. Updates must be made within 60 days. A failure to update within 60 days constitutes a “deceptive act” and the court can order injunctive relief as well as monetary damages (or $500 if there are no damages). The court can also order attorney’s fees and treble damages for willful violations.

As added by P.L.52-2021, SEC.7.