Introduced Version
HOUSE BILL No. 1289
_____
DIGEST OF INTRODUCED BILL
Citations Affected: IC 35-38-8.
Synopsis: Expungement of criminal offenses records. Allows a
sentencing court to expunge the records of certain felony convictions
committed before a person was 25 years of age 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.
Effective: July 1, 2011.
January 12, 2011, read first time and referred to Committee on Courts and Criminal Code.
Introduced
First Regular Session 117th General Assembly (2011)
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HOUSE BILL No. 1289
A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 35-38-8; (11)IN1289.1.1. -->
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. This chapter applies to all:
(1) felonies, regardless of when a felony was committed; and
(2) records, including juvenile records, created as a result of
an allegation that a person committed a felony before the
person became twenty-five (25) years of age.
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. In considering whether to grant an expungement petition
under this chapter, the court may review the following:
(1) Whether the person has been rehabilitated to the court's
satisfaction.
(2) Any other mitigating factors, including the following:
(A) Job performance.
(B) Job retention.
(C) Community service.
(D) Fulfillment of family and child support obligations.
(E) Completion of restitution to the victim.
Sec. 4. The court may not grant an expungement petition if the
person has been convicted of any felony, including murder that the
person committed on or after the day the person became
twenty-five (25) years of age.
Sec. 5. 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. 6. 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. 7. (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. 8. (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. 9. If a court orders a person's records to be expunged under
this chapter, the person shall be treated for all purposes as if the
person had not been arrested for or convicted of the felony
recorded in the expunged records.