Want to Expunge a Felony in Indiana?
Whether it’s an arrest, charge, or conviction, living with a felony on your criminal record is no easy task. The sheer existence of a felony record can make it hard to find solid employment or obtain the professional licensure required to pursue the career of your choice. It can also make finding a place to live difficult or interfere with certain rights, such as the right to own and carry a firearm. Thankfully, however, you may be able to expunge your felony in Indiana and truly move forward with your life.
While expungement is often seen as a rather straightforward process, it’s important that the Indiana felony expungement law is both detailed and complex, requiring the petitioner to meet strict deadlines and stringent filing requirements. Therefore, it’s always recommended that you seek the assistance of an experienced felony expungement attorney. This will help ensure that your expungement petition covers as much of your eligible criminal history as possible, meets the requirements set forth in the Indiana Rules of Trial Procedure, and is filed in an appropriate and timely manner.
If you’d like to expunge a felony in Indiana and want to speak with an expungement lawyer today, contact Keffer Hirschauer LLP at 317-857-0160 or complete our online contact form to schedule a free consultation.
Felony Expungement Eligibility
The first step in Indiana felony expungement is determining your eligibility. Generally speaking, most individuals with a felony record in Indiana may petition for expungement. However, under the Indiana expungement laws located in Indiana Code 35-38-9, some past offenders cannot petition to have their records expunged and sealed. This includes individuals deemed a sex or violent offender under Indiana Code 11-8-8-5 or those convicted of official misconduct under Indiana Code 35-44.1-1-1. In addition, individuals who have been convicted of homicide; voluntary or involuntary manslaughter; or two or more offenses involving the use of a deadly weapon (not committed as part of the same episode of criminal conduct) cannot petition for expungement.
Beyond those offenses, most individuals with a criminal record may petition for expungement. However, only eligible petitioners seeking to expunge Class D / Level 6 felony convictions are guaranteed to have their request(s) granted. Those requesting the expungement of a more serious felony in Indiana are not guaranteed to have their petition granted and may even be subject to Prosecutor approval.
Eligibility Requirements to Expunge a Level 6 Felony
Under Indiana Code 35-38-9-3, individuals who would like to expunge a felony in Indiana that is classified as a Class D / Level 6 must have their request granted if 8+ years have passed since their conviction. Furthermore, the petitioner not have any new convictions on their record and be free of any pending criminal charges. Finally, in order to have their petition for expungement granted, they must have paid their expungement filing fee, and completed payment of all fines, fees, court costs, and restitution orders.
Eligibility Requirements to Expunge a Major Felony
Under Indiana Code 35-38-9-4, a person who hopes to expunge a felony in Indiana that is classified as a Class C / Level 5 or higher will need to meet additional conditions in order to be eligible to petition for expungement. On top of that, there is no guarantee that their request will be granted. At this level, the decision to grant or deny a petitioner’s expungement request is completely up to the court. However, someone convicted of a Class C / Level 5 felony may petition for expungement once 8+ years have passed since their conviction or 3 years have passed since they completed their sentence, whichever occurs later. The petitioner must also not have any new criminal convictions on their record or any pending criminal charges made against them. Finally, in order to be eligible to petition for expungement, the petitioner must have paid their expungement filing fee, and completed payment of all fines, fees, court costs, and restitution orders.
Eligibility Requirements to Expunge a Serious Felony
Indiana Code 35-38-9-5 allows for individuals convicted of some serious felonies to petition for expungement, as well. However, these expungement requests do require prosecutor approval and are far less likely to be granted than less serious felony expungement requests. That being said, if a person’s serious felony offense is eligible and their petition is Prosecutor-approved, they may file the request for expungement once 10+ years have passed since their conviction or 5+ years have passed since they completed their sentence, whichever occurs later. The petitioner must also be free of any new criminal convictions or any pending criminal charges; and must have paid their expungement filing fee, and completed payment of all fines, fees, court costs, and restitution orders.
As you can probably tell by now, determining your Indiana expungement eligibility can be confusing. So, if you’re having trouble understanding whether or not you’re currently able to expunge a felony in Indiana, do not hesitate to contact Keffer Hirschauer LLP. Our Indianapolis law firm employs a handful of attorneys that do expungements all throughout the state of Indiana. We also have an entire team of experienced and knowledgeable legal professionals dedicated solely to servicing our expungement clients. They can help you determine your eligibility and assist you in the process of gathering all the necessary materials required for your petition.
Petitioning to Expunge a Felony in Indiana
In order to expunge a felony in Indiana, eligible petitioners will need to draft and file an expungement petition in the court that entered the judgment of conviction. Per Indiana Code 35-38-98, a petition requesting the expungement of a felony conviction must include the following information:
- Petitioner’s full name, and all other legal names or alias the petitioner is or has been known
- Petitioner’s date of birth
- Petitioner’s addresses from the date of the offense to the date of the petition
- Petitioner’s social security and driver’s license number
- Case number or court cause number, if available
- Date of the petitioner’s arrest
- Date of the petitioner’s conviction
- List of all convictions, collateral actions, cause number of each conviction, date of each conviction, and any appeals from the conviction and date any appellate opinion was handed down (if applicable)
- Affirmation by the petitioner that no criminal investigation or charges are currently pending against them
- Affirmation by the petitioner that the required period has elapsed or an attached copy of the prosecuting attorney’s written consent to a shorter period
- Petitioner’s description of any other expungement petitions they’ve filed
- Prosecuting Attorney’s written consent to petition (if seeking to expunge a serious felony)
Once the petition has been drafted and filed in compliance with the Indiana Rules of Trial Procedure, and the filing fee has been paid, the petitioner must serve a copy of the petition on the prosecuting attorney. If the court has discretion in granting the request to expunge a felony in Indiana, the prosecuting attorney must then inform the victim of their rights under Section 9 of the Indiana expungement laws, by contacting them at their last known address. This includes the victim’s right to submit an oral or written statement in support or opposition to the petition at the time of the petitioner’s hearing.
After the petition has been filed and the prosecuting attorney has been served, they have 30 days to issue a reply to the petition. If they fail to do so, they waive any objection to the petition and the Court shall proceed to consider the petition. However, if they do object to the petition, they must file the reasons for their objection with the Court and serve a copy of those reasons on the petitioner. The Court must then set the matter for hearing, no sooner than 60 days following the service of the petition on the prosecuting attorney.
Per Indiana Code 38-38-9-9, if the prosecuting attorney does not object, or has waived objection to the petition, the Court may choose to grant the request to expunge the felony in Indiana without holding a hearing. The Court may also elect to summarily deny the petition if it does not meet the requirements listed above or if the statements contained in the petition demonstrate that the petitioner is not entitled to expungement relief. If the petition is denied, the petitioner retains the right the appeal the final order; and, in contrast, if the request is granted by the Court, the prosecuting attorney has the right to appeal as well.
The Effects of an Expunged Record
If the petitioner’s request to expunge a felony in Indiana is granted, Indiana Code 35-38-9-6 requires the Court to issue an order of expungement on the Department of Correction; Bureau of Motor Vehicles; and each law enforcement agency, prosecutor, or any other person/entity who provided services for the petitioner under an order of the court. This order officially and explicitly prohibits each recipient from releasing the petitioner’s records or any information in the person’s records to anyone lacking a court order, beyond a law enforcement officer acting in the course of official duty.
Under Section 6 of the expungement law, the court is also required to issue an order requiring the State police to seal the petitioner’s expunged records stored in the central repository for criminal history information, provided that the State police has legal authority to do so. For example, under Indiana Code 35-38-9-7, a Court can only order that expunged records for a major felony or serious felony be “clearly and visibly marked or identified as being expunged.”
It’s important to note that if the petitioner is required to register as a sex offender in Indiana based on the commission of a felony that has since been expunged, the expungement will have no effect on the operation of the Indiana sex offender registry website. This means the public will still have access to that information, despite the website clearly stating the conviction has been expunged, and the petitioner will still need to abide by any Indiana sex offender restrictions and registration requirements imposed upon them.
Parties with Access to Sealed Records
Records related to a Class D / Level 6 felony expungement in Indiana can only be disclosed to or accessed by a prosecuting attorney, defense attorney, or probation department under a court order, if needed to carry out the official duties of the attorney or if necessary to prepare a resentence report. Records may also be disclosed to the Federal Bureau of Investigation and Department of Homeland Security, provided their disclosure is required to comply with an agreement related to the sharing of criminal history information.
In addition, sealed records related to a Class D / Level 6 felony in Indiana may be disclosed to the Supreme Court and select individuals at 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. Finally, the records may also be disclosed to a person required to access such records in compliance with the Secure and Fair Enforcement for Mortgage Licensing Act; or the BMV, the Federal Motor Carrier Administration, and the Commercial Drivers License Information System, if such disclosure is required to comply with federal law.
Notably, however, if the expunged records become relevant in a new prosecution of the petitioner, at any date in the future, the prosecuting attorney can seek to gain access to the records by submitting an application to the Court that granted the expungement. If the Court then deems the Prosecutor’s request to be valid, the Court may order the records unsealed and allow the Prosecutor access. If the records are admitted as evidence against the person in a new prosecution that results in their conviction or used to enhance their sentence in a new prosecution, the Court is not required to reseal them. If the records are not used in this manner, the Court must then order them to be permanently resealed at the earlier possible time after the reasons for unsealing the records cease to exist.
Discriminating Against a Person with an Expunged Record in Indiana
Under Indiana Code 35-38-9-10, a person who has successfully been able to expunge their felony in Indiana shall be treated as if they have never been convicted of the offense. In fact, with exception given to law enforcement, it is illegal for any person to suspend; expel; refuse to employ, admit, grant or renew a license, permit, or certificate necessary to engage in any activity, occupation, or profession; or otherwise discriminate against a person due to an expunged or sealed record. If found to be in violation of this law, a person may be charged with a Class C infraction and risk being held in contempt of court.
Furthermore, as provided in Indiana Code 35-38-9-12, a criminal history provider may be subject to penalty under Indiana Code 25-5-0.5-4 if they knowingly provide a criminal history report containing an expunged conviction. However, the report must fail to reflect changes to the official record that occurred 60 days or more prior to the date the report was provided.
Ready to Expunge a Felony in Indiana?
If you’re ready to begin working to expunge a felony in Indiana, it’s highly recommended that you seek out the services of a skilled and experienced Indiana expungement lawyer, like those at Keffer Hirschauer LLP. As one of the leading expungement law firms in the state of Indiana, we have assisted countless Hoosiers petitioning for expungement, helping seal thousands of criminal records in the process.
Our dedicated expungement team has a deep understanding of the expungement process, and a strong handle on all the nuances of expungement law. They can assist you in confirming your eligibility, gathering case records and court documents, researching your criminal history, and preparing your petition. Our attorneys are also prepared to represent you in court, and if successful, distribute notice of your expungement to all relevant state agencies.