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Expunging and sealing records

By Jeff Terrill

Fort Wayne Reader

2012-01-19

Mark is 28 now. When Mark was a senior in high school, he was stopped on his way home from school by a police officer because he was speeding on a country road. The officer found a very small amount of marijuana in the glove box of the car. Mark was arrested and later pled guilty (without a lawyer!) to Reckless Driving, a Class B misdemeanor, and Possession of Marijuana, a Class A misdemeanor. Mark spent four days in jail and successfully completed one year of probation, which included drug and alcohol counseling, community service and a defensive driving course. Mark’s football coach had to kick him off the team because of the incident.

Mark graduated from high school with decent grades. He completed one year in college and then left so he could work full-time with a local painting company. Two years later, Mark and his new girlfriend had a child. The relationship didn’t last, but Mark continued to be an active father. His daughter spent every weekend with him and he paid his child support regularly. Determined to find a more fulfilling career and to better provide for his daughter, Mark re-enrolled in college to obtain a nursing degree.

Mark excelled in college and was near the top of his class when he learned that his convictions for Reckless Driving and Possession of Marijuana would prevent him from participating in an externship at the hospital. Mark was told by the director of his program that he should probably look for a different career. Even though Mark was now 27 years old, he was still being haunted by a crime he committed nine years earlier. A friend mentioned to Mark that he heard about a new law in Indiana that allowed a person to petition a court to seal or limit access to his criminal history.

Jenna is 23 years old. When she was home over the summer before her junior year in college, Jenna was stopped by a theft prevention officer as she left a department store and accused of leaving without paying for some items found in the bottom of her shopping bag. Jenna denied the allegation. Police were called and Jenna was arrested. She was taken to jail, processed and released several hours later and told to appear in court the following week. Jenna appeared in court and was relieved to learn that her case had been dismissed. But months later she learned that the arrest for criminal conversion, a Class A misdemeanor, was preventing her from getting part time employment while she was in college. Jenna was confused. Even though her case was dismissed, she was starting to realize that her arrest record would continue to cause her problems in the future.

Mark’s and Jenna’s cases are not unique. Thousands of people throughout the state struggle to obtain employment and/or professional licensing due to their arrest or criminal records. Criminal convictions don’t just disappear after a few years. They stay there forever. Unless a person obtains a pardon or post conviction relief, a conviction is permanent. In July of 2011, new statutes were enacted to better enable a person to petition to restrict access or seal criminal history. So, both Mark and Jenna have been able to successfully petition the court to restrict access to their criminal records.
Prior to the new law, a person could obtain an expungement of an arrest record only under very limited circumstances, such as a showing that his arrest was due to a mistaken identity or a lack of probable cause. Before the law changed, a person could restrict access to a conviction (felony or misdemeanor) only after 15 years had elapsed since that person finished his sentence. Under the new statute (Indiana Code 25-38-5-5.5), a person who (1) is arrested but not prosecuted; (2) has a case dismissed (like Jenna); (3) is found not guilty at the conclusion of a trial or (4) has a conviction vacated can successfully petition to restrict access to that person’s arrest record. Law enforcement agencies, however, would still have access.

In the case of a dismissal, a person is required to wait 30 days from the date of the dismissal before she can petition. A person will need to wait two years after the date of an acquittal before he can petition to restrict access to his arrest record. A successful petition results with the court ordering the state police department not to disclose any information about the person’s case to a noncriminal justice organization or person.

Let’s talk about Mark’s situation. Remember, Mark was convicted of two misdemeanors 10 years earlier. Indiana Code 35-38-8 provided Mark a way to petition to restrict everyone except law enforcement agencies from accessing that information. That new law allows a person who was convicted of a misdemeanor or Class D felony that did not result in injury to a person to petition to restrict access to such records. A person must wait eight years after the person completed his sentence before he is eligible to petition. The person must also show that he has not been convicted of a felony since the time of the previous conviction. The new law further states upon the court granting the person’s petition that the “person may legally state on an application for employment or any other document that the person has not been arrested for or convicted” of that crime.

Good news for Mark. Mark successfully petitioned to have his criminal conviction accessible only by law enforcement agencies. Mark can now legally answer “NO” when asked on his applications whether he has ever been convicted of a crime. Mark is participating in his externship and is set to graduate in a few months. He is expecting to receive several excellent job offers.

Jenna successfully petitioned the court to limit access to her arrest record. She is in graduate school now and found a great part time job. Her arrest record never came up during the hiring process. She was relieved, but she is still trying to figure out what she wants to do for the rest of her life.