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June 5, 2013

New law will clear records

State officials preparing for onslaught of interested parties.

INDIANAPOLIS — Indiana court personnel are preparing for what may be an onslaught of requests from people eager to use a new state law to clear their old criminal records that keep them from getting a good job.

The new law, which goes into effect July 1, creates a mechanism for thousands of Hoosiers who’ve been arrested or convicted of mostly non-violent crimes to wipe clean their criminal history if they meet certain conditions.

The law spells out in detail what crimes are — and aren’t — covered and how to go about getting them expunged.

But it may take awhile for everyone involved in the process — including prosecutors, petitioners, judges, record-keepers, and crime victims — to make it all work.

“The law is incredibly broad,” said Republican Rep. Jud McMillin, a former deputy prosecutor from Brookville who authored the bill. “One of the first things I tell people: If you have criminal record at all, you need to ask somebody if you’re eligible.”

That somebody doesn’t need to be an attorney. But since the law is so new and penalties for getting it wrong are so serious, McMillin and other bill supporters are advising would-be users of it to seek legal advice.

“It’s always suspect when a lawyer says to someone, ‘I wouldn’t try this on my own.’ But in this case, you really shouldn’t try this on your own,” said Republican Sen. Brent Steele, a Bedford attorney who carried the bill in the Senate.

The new law, House Enrolled Act 1482, creates the state’s first criminal-records expungement process that covers a wide array of crimes, from drunk driving to drug dealing, that can be erased by the courts. It replaces a current law that gives courts limited authority to shield some low-level crimes from public view.

Some crimes are off-limits: Most violent and sex crimes can’t be expunged, nor can most crimes involving misconduct or fraud by a public official. To be eligible, a person petitioning the court for a record expungement has to show they’ve redeemed themselves by staying out of trouble.

The bill was passed with bipartisan support from legislators concerned that someone’s long-ago criminal record could be a roadblock to employment and other opportunities.

“Everybody has done something stupid when they were young and didn’t get caught for it,” Steele said. “This is for people who did get caught and turned their lives around but have to keep paying for their crime again and again and again.” Conditions to be eligible are specific, based on both time and behavior since the criminal charge was filed or the sentence served.

For example, someone arrested on a misdemeanor charge but never convicted can start the process within a year; someone with a higher-level felony crime conviction, who can prove they’ve since stayed out of trouble, may have to wait up to 10 years after serving the sentence.

For most low-level crimes where the petitioner has met all the conditions in the law, a judge is required to expunge the record. For higher-level crimes, prosecutors can intervene, crime victims can weigh in and judges have more discretion.

To guard against fraud and abuse of the judicial system, the law carries some penalties for not following the rules.  

For example, a person can only file one petition for expungement during their lifetime and that petition has to include every arrest and conviction in their past. The petitions are checked for veracity by comparing them with criminal records kept by the state police and state courts.

Failure to fill out the petition properly can result in getting the petition tossed out of court. Depending on the circumstance, a petitioner may have to wait another three years before they can file again. Someone with multiple charges who fails to report an arrest or conviction in their petition can be forever denied an expungement of that crime.

“The law is written to ensure the public will be very honest with the court,” said Andrew Cullen, the legislative liaison for the Indiana Public Defender Council who helped craft the bill’s language.

Like McMillin and Steele, he’s also advising people who want to use the new law to clear their records to get some legal guidance.

“We’re not encouraging anyone to go it alone,” Cullen said.

Cullen, Steele and McMillin all said the cost shouldn’t be prohibitive, suggesting the legal fees may run into several hundred dollars but not several thousand dollars.

“If someone wants to charge you a price you don’t think is fair, you should seek other counsel,” Cullen said. “From a legal perspective, it doesn’t entail a lot of work. But from the petitioner’s perspective, it’s important to get it right.”

The new law can wipe clean the criminal records kept by the courts, law enforcement and state agencies like the Bureau of Motor Vehicles. But it can’t wipe clean records published in other venues, like electronic newspaper archives or on other Internet sites.

But the law does prohibit employers from discriminating against someone with a criminal record, and also changes how employers are allowed to ask about past criminal history. Under the new law, employees can only be asked: “Have you ever been arrested for or convicted of a crime that has not been expunged by a court?”

It also protects employers from being sued if they hire someone who’s had their record expunged but subsequently commits another crime.

Maureen Hayden covers the Statehouse for the CNHI newspapers in Indiana. She can be reached at maureen.hayden@indianamediagroup.com.

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