Can Expunged Records Be Admitted at Trial in Indiana?

August 08, 2022

By Keffer Hirschauer LLP

Can Expunged Records Be Admitted at Trial in Indiana?  

In Indiana, your criminal record doesn’t have to follow you for the rest of your life. Through a process called expungement, your criminal records can be sealed, allowing you to move forward with your life and gain easier access to employment, housing, loans, and more. However, it’s important to note that even though your records have been sealed, the action can be reversed. If you are charged with a new criminal offense, and your previous criminal records are found to be relevant to the prosecution’s case against you, your expunged record can be admitted at trial in Indiana. 

If you’re facing criminal charges in Indiana, and are worried that your sealed criminal records may negatively impact your defense, you’ll need to retain the counsel of an experienced, aggressive criminal defense attorney in Indiana. At Keffer Hirschauer LLP, our founders, Bradley Keffer and Tom Hirschauer III, are former prosecutors who know both sides of the criminal justice system. They have a deep understanding of the local courts across the state of Indiana and extensive experience inside the courtroom. To protect your rights and minimize your potential penalties, call our criminal defense law firm at (317) 648-9560 or schedule a free consultation. 

Expungement in Indiana 

Given that Indiana law does not require you to work with an attorney when filing your expungement, some people decide to go the DIY route. However, once they begin the process of filing the expungement petition, they quickly realize that they’re in over their head. The requirements contained within the Indiana expungement statutes are strict, and determining your eligibility can be complicated. Therefore, many people who have started down the DIY path eventually call an attorney with a list of Indiana expungement questions. The questions are often broad, ranging from “can an expunged record be admitted at trial in Indiana,” to “How many records can I get expunged?” However, some of the more common expungement questions include:  

What is an Expungement?  

Expungement is a legal process that allows for the sealing of qualified criminal records. Given court approval, records of your criminal history can be sealed. This prevents them from being viewed by non-criminal justice agents or persons. In addition, individuals whose criminal records have been expunged are no longer obligated to disclose their criminal history to potential landlords, licensing organizations, or employers. The only time that your criminal history could be unsealed is if you are charged with a criminal offense and the prosecution is granted permission to have your expunged record admitted at trial in Indiana. 

How Do I Get an Expungement? 

For most criminal records, to get an expungement in Indiana, you’ll need to file either a petition or a formal written request in the court that entered the judgment of conviction, or in the county of the arrest/charge. Indiana expungement law details all the elements that must be included in the petition, which differ depending on the type of record you’re seeking to expunge. For example, you’ll include different elements in a petition to expunge an arrest that didn’t result in criminal changes than you would in a petition to expunge a felony conviction. In addition, the petition for expungement must be filed promptly, in compliance with the Indiana Rules of Trial Procedure, and served on the county prosecutor. Once you file your petition for expungement, the court will review it, and may elect to hold a hearing. If the court approves your petition, then it will issue an order to seal the criminal records that you have identified in your petition. 

Which Records Could be Expunged?  

Under Indiana Code chapter 35-38-9, criminal records eligible for expungement include arrests, criminal charges, criminal convictions, Protective orders (civil and criminal, depending on the circumstances of the case), delinquency adjudications, trial court records, and appellate court records, and Civil forfeiturerecords. Files of the Department of Correction, the Bureau of Motor Vehicles, and the files of any other person who provided treatment or services to the petitioning person under a court order can also be sealed through expungement. In addition, reports and information related to child abuse and neglect are eligible for expungement under certain circumstances, as outlined in Indiana Code 31-33-27 

What Convictions are Eligible for Expungement? 

Whether a criminal record is eligible for expungement depends on several factors: 

  • The nature of the record (whether the record pertains to an arrest, charge, or conviction) 
  • The level of the offense involved 
  • The amount of time that has passed since the arrest, charge, or conviction 
  • The nature or characteristics of the petitioner 

According to Indiana Code chapter 35-38-9, arrest records, misdemeanor convictions, and Class D or Level 6 felonies are eligible for expungement. Some higher-level felonies may be eligible for expungement too, but the court doesn’t always grant expungement requests for major felony conviction records, which include Class C or Level 5 felonies and higher. 

If you have been convicted of a “serious felony,” that resulted in serious bodily injury to another person or offenses committed while being a candidate for or serving an elected public office, and otherwise meet all of the eligibility criteria for expungement, your request will still require approval from the prosecutor.  

What Convictions are Not Eligible for Expungement? 

In Indiana, there are several conviction records that, under no circumstances, can be expunged. This includes the records of sex or violent offenders, under Indiana Code 11-8-8-5, as well as those convicted of official misconduct, under Indiana Code 35-44.1-1-1. Convictions of homicide, voluntary manslaughter, or involuntary manslaughter are not eligible for expungement either. Furthermore, if you have been convicted of two or more felony offenses involving the use of a deadly weapon, which were not committed as part of the same episode of criminal conduct, you are not eligible to expunge your conviction records.    

When Can I Petition for Expungement? 

Following an arrest, charge, or conviction, your eligibility for expungement will vary depending on both the nature and level of the offense. Each offense category that is eligible for expungement has its own waiting period and conditions. Based on the offense category, personal eligibility for expungement is as follows:  

Arrests, charges, or juvenile delinquency adjudications 

  • One year since the date of the arrest, charge, or juvenile delinquency adjudication 
  • Arrest or charge did not result in a conviction or juvenile delinquency adjudication 
    • OR conviction was overturned on appeal 
  • Not currently participating in a pretrial diversion program 
  • No convictions in the year prior to filing the expungement petition 
  • No current pending criminal charges 
  • Successful completion of all diversion program requirements 

Misdemeanors and lower-level felonies reduced tomisdemeanors 

  • Five years since the date of conviction  
  • No convictions in the five years prior to filing the expungement petition 
  • No current pending criminal charges 
  • Successful payment of all fines, fees, court costs, and restitution orders 
  • Successful payment of the expungement filing fee 

 Class D and Level 6 felonies 

  • Eight years since the date of conviction  
  • No convictions in the eight years prior to filing the expungement petition 
  • No current pending criminal charges 
  • Successful payment of all fines, fees, court costs, and restitution orders 
  • Successful payment of the expungement filing fee 

Major felonies, including Class C or Level 5 felonies and higher 

  • Eight years since the date of conviction 
  • Three years since completion of sentence 
  • No convictions in the eight years prior to filing the expungement petition 
  • No current pending criminal charges 
  • Successful payment of all fines, fees, court costs, and restitution orders 
  • Successful payment of the expungement filing fee 

Serious Felonies 

  • Prosecutor approval is required if the offense involved serious bodily injury to another person, or was committed by a person servicing in or running as a candidate for public office 
  • Ten years since the date of conviction 
    • OR, more than five years from the completion of the sentence, whichever is later 
  • No convictions in the ten years prior to filing the expungement petition 
  • No current pending criminal charges 
  • Successful payment of all fines, fees, court costs, and restitution orders 
  • Successful payment of the expungement filing fee 

Can Expunged Records Be Admitted at Trial in Indiana? 

Yes. Expunged records can be admitted at trial in Indiana. As outlined in Indiana Code 35-38-9-6(d), for a record to be unsealed, the prosecuting attorney must submit a written application to the court that granted the expungement. If granted, the expunged records will be unsealed. This allows the prosecuting attorney who submitted the application to access the records and submit them as evidence in a trial against you.  

If your expunged records are unsealed, the court must order the records to be permanently resealed as quickly as possible after the reasons for unsealing the records cease to exist. However, if the unsealed records are admitted to evidence in a case that leads to a new conviction or used to enhance a sentence imposed on you in a new conviction, the court is no longer required to reseal the previously expunged records.  

Facing a Criminal Trial in Indiana? Keffer Hirschauer LLP is Here to Defend You.  

If you are concerned that your expunged records could be admitted at trial in Indiana, you should immediately begin exploring all of your legal options. Indiana criminal charges could impact your life for years to come. If convicted again, you won’t be eligible for a second expungement and your criminal past will forever be accessible by anyone with a connection to the internet.  

In times like these, you need a team of skilled litigators who are invested in the work of securing you the most optimal outcome – whether that is a dismissal, a reduction of charges, or a not-guilty verdict. From our first consultation with you, all the way through trial and appeals, the criminal defense team at Keffer Hirschauer LLP can provide you with dedicated, expert criminal representation. To begin building your defense, contact us today at (317) 648-9560 or schedule a free consultation with one of our criminal defense attorneys.  

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