HB 1033-1_ Filed 03/09/2012, 13:51
CONFERENCE COMMITTEE REPORT
DIGEST FOR EHB 1033
Citations Affected: IC 24-4-18; IC 34-28-5; IC 35-38-8-7; IC 35-50-2.
Synopsis: Criminal history and sentencing. Conference committee report for EHB 1033.
Defines "criminal history provider." Requires a criminal history provider to: (1) update its
records annually to remove inaccurate information and information that has been expunged,
restricted, or limited; and (2) only disclose certain information relating to a conviction; as of July
1, 2013. Allows the attorney general and a person harmed by a criminal history provider to bring
an action against the criminal history provider if the criminal history provider fails to update its
records or discloses non-conviction information. Requires a court to restrict disclosure of
information relating to an infraction to a noncriminal justice organization or individual if: (1) the
person alleged to have committed the infraction is not prosecuted; (2) the infraction is dismissed;
(3) the person is found not to have committed the infraction; or (4) the judgment is reversed on
appeal. Establishes a procedure for the person to restrict disclosure of the information relating
to the infraction if the court fails to act on its own. Requires records relating to an infraction to
be sealed five years after the judgment for the infraction is satisfied. Makes it a Class B
infraction for an employer to ask if a person's criminal records have been sealed or restricted.
Allows a court to convert a Class D felony conviction to Class A misdemeanor conviction if: (1)
the person is not a sex or violent offender; (2) the offense was a non-violent offense; (3) the
person has not been convicted of perjury or official misconduct; (4) at least three years have
passed since the person completed the sentence; (5) the person has not been convicted of a new
felony; and (6) no criminal charges are pending against the person. Provides that if a person
whose Class D felony conviction has been converted to a Class A misdemeanor conviction is
convicted of a felony within five years after the conversion, a prosecuting attorney may petition
a court to convert the person's Class A misdemeanor conviction back to a Class D felony
conviction. Specifies that a conviction for a Class A misdemeanor that was originally entered as
a Class D felony and converted to a Class A misdemeanor under an express sentencing provision
is treated as a Class A misdemeanor. (This conference committee report: (1) changes the
effective date of the law concerning criminal history providers to July 1, 2013; (2) makes
changes to the definitions of "criminal history information"and "criminal history
provider"; and (3) removes provisions concerning petitions for restricted access to
conviction records.)
Effective: July 1, 2012; July 1, 2013.
Text Box
Adopted Rejected
[
]
CONFERENCE COMMITTEE REPORT
MR. SPEAKER:
Your Conference Committee appointed to confer with a like committee from the Senate
upon Engrossed Senate Amendments to Engrossed House Bill No. 1033 respectfully reports
that said two committees have conferred and agreed as follows to wit:
that the House recede from its dissent from all Senate amendments and that
the House now concur in all Senate amendments to the bill and that the bill
be further amended as follows:
Delete everything after the enacting clause and insert the following:
SOURCE: IC 24-4-18; (12)CC103302.1. -->
SECTION 1. IC 24-4-18 IS ADDED TO THE INDIANA CODE AS
A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2013]:
Chapter 18. Criminal History Providers
Sec. 1. (a) As used in this chapter, "criminal history
information" means information:
(1) concerning a criminal conviction in Indiana; and
(2) available in records kept by a clerk of a court with
jurisdiction in Indiana.
(b) The term consists of the following:
(1) Identifiable descriptions and notations of arrests,
indictments, informations, or other formal criminal charges.
(2) Information, including a photograph, regarding a sex or
violent offender (as defined in IC 11-8-8-5) obtained through
sex or violent offender registration under IC 11-8-8.
(3) Any disposition, including sentencing, and correctional
system intake, transfer, and release.
(4) A photograph of the person who is the subject of the
information described in subdivisions (1) through (3).
(c) The term includes fingerprint information described in
IC 10-13-3- 24(f).
Sec. 2. (a) As used in this section, "criminal history provider"
means a person or an organization that assembles criminal history
reports and either uses the report or provides the report to a
person or an organization other than a criminal justice agency or
law enforcement agency.
(b) The term does not include the following:
(1) A criminal justice agency.
(2) A law enforcement agency.
(3) Any:
(A) person connected with or employed by:
(i) a newspaper or other periodical issued at regular
intervals and having a general circulation; or
(ii) a recognized press association or wire service;
as a bona fide owner, editorial or reportorial employee,
who receives income from legitimate gathering, writing,
editing, and interpretation of news;
(B) person connected with a licensed radio or television
station as an owner or official, or as an editorial or
reportorial employee who receives income from legitimate
gathering, writing, editing, interpreting, announcing, or
broadcasting of news; or
(C) other person who gathers, records, compiles, or
disseminates:
(i) criminal history information; or
(ii) criminal history reports;
solely for journalistic purposes.
Sec. 3. As used in this section, "criminal history report" means
criminal history information that has been compiled for the
purposes of evaluating a particular person's:
(1) character; or
(2) eligibility for:
(A) employment;
(B) housing; or
(C) participation in any activity or transaction.
Sec. 4. As used in this section, "criminal justice agency" has the
meaning set forth in IC 10-13-3-6.
Sec. 5. As used in this section, "law enforcement agency" has the
meaning set forth in IC 10-13-3-10.
Sec. 6. (a) A criminal history provider may provide only
criminal history information that relates to a conviction.
(b) A criminal history provider may not provide information
relating to the following:
(1) An infraction, an arrest, or a charge that did not result in
a conviction.
(2) A record that has been expunged.
(3) A record that is restricted by a court or the rules of a
court.
(4) A record indicating a conviction of a Class D felony if the
Class D felony conviction:
(A) has been entered as a Class A misdemeanor conviction;
or
(B) has been converted to a Class A misdemeanor
conviction.
(5) A record that the criminal history provider knows is
inaccurate.
Sec. 7. A criminal history provider may not include criminal
history data in a criminal history report if the criminal history
data has not been updated to reflect changes to the official record
occurring sixty (60) days or more before the date the criminal
history report is delivered.
Sec. 8. (a) The attorney general may bring an action to enforce
a violation of section 6 or 7 of this chapter. In addition to any
injunctive or other relief, the attorney general may recover a civil
penalty of:
(1) not more than one thousand dollars ($1,000) for a first
violation; and
(2) not more than five thousand dollars ($5,000) for a second
or subsequent violation.
(b) Any person injured by a violation of section 6 or 7 of this
chapter may bring an action to recover:
(1) the greater of:
(A) actual damages, including consequential damages; or
(B) liquidated damages of five hundred dollars ($500); and
(2) court costs and reasonable attorney's fees.
SOURCE: IC 34-28-5-15; (12)CC103302.2. -->
SECTION 2. IC 34-28-5-15 IS ADDED TO THE INDIANA CODE
AS A
NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2012]:
Sec. 15. (a) If a person alleged to have violated a statute
defining an infraction:
(1) is not prosecuted or if the action against the person is
dismissed;
(2) is adjudged not to have committed the infraction; or
(3) is adjudged to have committed the infraction and the
adjudication is subsequently vacated;
the court in which the action was filed shall order the clerk not to
disclose or permit disclosure of information related to the
infraction to a noncriminal justice organization or an individual.
(b) If a court fails to order the court to restrict information
related to the infraction under subsection (a), the person may
petition the court to restrict disclosure of the records related to the
infraction to a noncriminal justice organization or an individual.
(c) A petition under subsection (b) must be verified and filed in:
(1) the court in which the action was filed, for a person
described in subsection (a)(1); or
(2) the court in which the trial was held, for a person
described in subsection (a)(2) or (a)(3).
(d) A petition under subsection (b) must be filed not earlier
than:
(1) if the person is adjudged to have not committed the
infraction, thirty (30) days after the date of judgment;
(2) if the person's adjudication is vacated, three hundred
sixty-five (365) days after:
(A) the order vacating the adjudication is final, if there is
no appeal or the appeal is terminated before entry of an
opinion or memorandum decision; or
(B) the opinion or memorandum decision vacating the
adjudication is certified; or
(3) if the person is not prosecuted or the action is dismissed,
thirty (30) days after the action is dismissed, if a new action is
not filed.
(e) A petition under subsection (b) must set forth:
(1) the date of the alleged violation;
(2) the violation;
(3) the date the action was dismissed, if applicable;
(4) the date of judgment, if applicable;
(5) the date the adjudication was vacated, if applicable;
(6) the basis on which the adjudication was vacated, if
applicable;
(7) the law enforcement agency employing the officer who
issued the complaint, if applicable;
(8) any other known identifying information, such as the name
of the officer, case number, or court cause number;
(9) the date of the petitioner's birth; and
(10) the petitioner's Social Security number.
(f) A copy of a petition under subsection (b) shall be served on
the prosecuting attorney.
(g) If the prosecuting attorney wishes to oppose a petition under
subsection (b), the prosecuting attorney shall, not later than thirty
(30) days after the petition is filed, file a notice of opposition with
the court setting forth reasons for opposing the petition. The
prosecuting attorney shall attach to the notice of opposition a
certified copy of any documentary evidence showing that the
petitioner is not entitled to relief. A copy of the notice of opposition
and copies of any documentary evidence shall be served on the
petitioner in accordance with the Indiana Rules of Trial Procedure.
The court may:
(1) summarily grant the petition;
(2) set the matter for hearing; or
(3) summarily deny the petition, if the court determines that:
(A) the petition is insufficient; or
(B) based on documentary evidence submitted by the
prosecuting attorney, the petitioner is not entitled to have
access to the petitioner's records restricted.
(h) If a notice of opposition is filed under subsection (g) and the
court does not summarily grant or summarily deny the petition,
the court shall set the matter for a hearing.
(i) After a hearing is held under subsection (h), the court shall
grant the petition filed under subsection (b) if the person is entitled
to relief under subsection (a).
(j) If the court grants a petition filed under subsection (b), the
court shall order the clerk not to disclose or permit disclosure of
information related to the infraction to a noncriminal justice
organization or an individual.
SOURCE: IC 34-28-5-16; (12)CC103302.3. -->
SECTION 3. IC 34-28-5-16 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2012]: Sec. 16. (a) This chapter applies only to a person found to
have committed an infraction.
(b) Five (5) years after the date a person satisfies a judgment
imposed on a person for the violation of an infraction, the clerk of
the court shall prohibit the disclosure of information related to the
infraction to a noncriminal justice organization or an individual.
(c) If a person whose records are restricted under this section
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.
(d) For the plaintiff to recover in an action described in
subsection (c), the plaintiff must show that the contents of the
restricted records would not exonerate the defendant.
(e) In an action described in subsection (c), the plaintiff may be
required to state under oath whether the disclosure of records
relating to an infraction has been restricted.
(f) In an action described in subsection (c), 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.
(g) A person whose records have been restricted under this
section may legally state on an application for employment or any
other document that the person has not been adjudicated to have
committed the infraction recorded in the restricted records.
SOURCE: IC 35-38-8-7; (12)CC103302.4. -->
SECTION 4. IC 35-38-8-7, AS ADDED BY P.L.194-2011,
SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Sec. 7. (a) If a court orders a person's records to be
restricted under this chapter, 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 the felony or misdemeanor
recorded in the restricted records.
(b) An employer may not ask an employee, contract employee,
or applicant whether the person's criminal records have been
sealed or restricted. An employer who violates this subsection
commits a Class B infraction.
SOURCE: IC 35-50-2-1; (12)CC103302.5. -->
SECTION 5. IC 35-50-2-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2012]: Sec. 1. (a) As used in this
chapter, "Class D felony conviction" means a conviction of a Class D
felony in Indiana and a conviction, in any other jurisdiction at any time,
with respect to which the convicted person might have been imprisoned
for more than one (1) year. However, it does not include a conviction
with respect to which the person has been pardoned, or a conviction of
a Class A misdemeanor entered under IC 35-38-1-1.5 or section 7(b)
or 7(c) of this chapter.
(b) As used in this chapter, "felony conviction" means a conviction,
in any jurisdiction at any time, with respect to which the convicted
person might have been imprisoned for more than one (1) year.
However, it does not include a conviction with respect to which the
person has been pardoned, or a conviction of a Class A misdemeanor
under section 7(b) of this chapter.
(c) As used in this chapter, "minimum sentence" means:
(1) for murder, forty-five (45) years;
(2) for a Class A felony, twenty (20) years;
(3) for a Class B felony, six (6) years;
(4) for a Class C felony, two (2) years; and
(5) for a Class D felony, one-half (1/2) year.
SOURCE: IC 35-50-2-7; (12)CC103302.6. -->
SECTION 6. IC 35-50-2-7, AS AMENDED BY P.L.71-2005,
SECTION 10, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Sec. 7. (a) A person who commits a Class D felony
shall be imprisoned for a fixed term of between six (6) months and
three (3) years, with the advisory sentence being one and one-half (1
1/2) years. In addition, the person may be fined not more than ten
thousand dollars ($10,000).
(b) Notwithstanding subsection (a), if a person has committed a
Class D felony, the court may enter judgment of conviction of a Class
A misdemeanor and sentence accordingly. However, the court shall
enter a judgment of conviction of a Class D felony if:
(1) the court finds that:
(A) the person has committed a prior, unrelated felony for
which judgment was entered as a conviction of a Class A
misdemeanor; and
(B) the prior felony was committed less than three (3) years
before the second felony was committed;
(2) the offense is domestic battery as a Class D felony under
IC 35-42-2-1.3; or
(3) the offense is possession of child pornography (IC
35-42-4-4(c)).
The court shall enter in the record, in detail, the reason for its action
whenever it exercises the power to enter judgment of conviction of a
Class A misdemeanor granted in this subsection.
(c) Notwithstanding subsection (a), the sentencing court may
convert a Class D felony conviction to a Class A misdemeanor
conviction if, after receiving a verified petition as described in
subsection (d) and after conducting a hearing of which the
prosecuting attorney has been notified, the court makes the
following findings:
(1) The person is not a sex or violent offender (as defined in
IC 11-8-8-5).
(2) The person was not convicted of a Class D felony that
resulted in bodily injury to another person.
(3) The person has not been convicted of perjury under
IC 35-44-2-1 or official misconduct under IC 35-44-1-2.
(4) At least three (3) years have passed since the person:
(A) completed the person's sentence; and
(B) satisfied any other obligation imposed on the person as
part of the sentence;
for the Class D felony.
(5) The person has not been convicted of a felony since the
person:
(A) completed the person's sentence; and
(B) satisfied any other obligation imposed on the person as
part of the sentence;
for the Class D felony.
(6) No criminal charges are pending against the person.
(d) A petition filed under subsection (c) must be verified and set
forth:
(1) the crime the person has been convicted of;
(2) the date of the conviction;
(3) the date the person completed the person's sentence;
(4) any obligations imposed on the person as part of the
sentence;
(5) the date the obligations were satisfied; and
(6) a verified statement that there are no criminal charges
pending against the person.
(e) If a person whose Class D felony conviction has been
converted to a Class A misdemeanor conviction under subsection
(c) is convicted of a felony within five (5) years after the conversion
under subsection (c), a prosecuting attorney may petition a court
to convert the person's Class A misdemeanor conviction back to a
Class D felony conviction.
SOURCE: ; (12)CC103302.7. -->
SECTION 7. [EFFECTIVE JULY 1, 2012]
(a) As used in this
SECTION, "legislative council" refers to the legislative council
established by IC 2-5-1.1-1.
(b) As used in this SECTION, "study committee" means either
of the following:
(1) A statutory committee established under IC 2-5.
(2) An interim study committee.
(c) The legislative council is urged to assign the following topics
to a study committee during the 2012 legislative interim:
(1) The provisions of IC 24-4-18, as added by this act,
concerning criminal history providers.
(2) The need for any legislation to amend IC 24-4-18, as added
by this act, concerning criminal history providers before
IC 24-4-18 takes effect on July 1, 2013.
(d) If the topics described in subsection (c) are assigned to a
study committee, the study committee shall issue a final report to
the legislative council containing the study committee's findings
and recommendations, including any recommended legislation
concerning the topics, in an electronic format under IC 5-14-6 not
later than November 1, 2012.
(e) This SECTION expires December 31, 2012.
(Reference is to EHB 1033 as reprinted February 29, 2012.)
Conference Committee Report
on
Engrossed House Bill 1033
S
igned by:
____________________________ ____________________________
Representative McMillin Senator Steele
Chairperson
____________________________ ____________________________
Representative Pierce Senator Hume
House Conferees Senate Conferees