Introduced Version






SENATE BILL No. 393

_____


DIGEST OF INTRODUCED BILL



Citations Affected: IC 35-38-8.

Synopsis: Expungement petitions. Requires a sentencing court to expunge the records of felony and misdemeanor convictions (other than records required by the sex offender registry law) if five years have passed since: (1) the completion of the person's sentence; and (2) the satisfaction of any other obligations imposed on the person as a part of the sentence. Allows a law enforcement agency, prosecuting attorney, or court to gain access to permanently sealed records under certain circumstances. Provides that if a court orders a person's records to be expunged, 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.

Effective: July 1, 2011.





Taylor




    January 11, 2011, read first time and referred to Committee on Corrections, Criminal, and Civil Matters.







Introduced

First Regular Session 117th General Assembly (2011)


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SENATE BILL No. 393



    A BILL FOR AN ACT to amend the Indiana Code concerning courts and court officers.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 35-38-8; (11)IN0393.1.1. -->     SECTION 1. IC 35-38-8 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]:
     Chapter 8. Expungement of Conviction Records
    Sec. 1. (a) This chapter applies to:
        (1) all felonies and misdemeanors regardless of when an offense was committed; and
        (2) all records, including juvenile records, created as a result of an allegation that a person committed a felony or misdemeanor.
    (b) This chapter does not apply to records and information required by IC 11-8-8.
    Sec. 2. Five (5) years after the date a person completes the person's sentence and satisfies any other obligations imposed on the person as a part of the sentence, the person may petition a sentencing court to expunge from:
        (1) a court's files;
        (2) the files of the department of correction; and
        (3) 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.
    Sec. 3. If the court finds that five (5) years have 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, the court shall grant the expungement petition.
    Sec. 4. 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; and
            (B) 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 of this chapter on which a felony 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. 5. If an expungement petition of a person is granted under this chapter, information concerning the person's arrest or conviction may not be placed or retained in any state central repository for criminal history information.
    Sec. 6. (a) 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 law enforcement agency, prosecuting attorney, or court 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 a person who submits a written application under this subsection shows good cause for unsealing the records described in subsection (a), the court that granted the expungement petition shall:
        (1) order the records to be unsealed; and
        (2) allow the person 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.
    Sec. 7. (a) If a person whose records are expunged 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 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.
    (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. 8. 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.