Analysis on Developments in Indiana Law and Practice

Expungement and Restricted Access to Criminal History Records

Some of the most frequently asked questions from our clients involve remedies available for removing an entry from adult criminal history record for Indiana state arrests and convictions. There are several such remedies.

 

Expungement, Ind. Code § 35-38-5

Expungement is the most complete remedy, but it is available in only a limited set of circumstances: when an individual is arrested but no criminal charges or filed, or when all criminal filed against a person are dropped because of mistaken identity, no offense was in fact committed, or there was an absence of probable cause. When an expungement petition is successful, no information concerning the arrest may be placed or retained in any state central repository for criminal history.

 

Restricted Access of Records Relating to Arrest, Ind. Code § 35-38-5

Beginning in 2011, a new “restricted access” remedy was created. It applies to a person who was charged with a crime that: was not prosecuted, resulted in dismissal, resulted in acquittal, or resulted in a conviction that was later vacated. The petition can be filed after 30 days after an acquittal or dismissal, or 365 days after a conviction is vacated. A successful petition results in a court order restricting the disclosure of the records related to the arrest to a noncriminal justice organization.

 

Restricted Access of Records Relating to Conviction, Ind. Code § 35-38-8

Also beginning in 2011, a person who is generally not a sex or violent offender and was convicted of a misdemeanor or Class D felony that did not result in injury to a person can petition the court to restrict disclosure of the records relating to the conviction. Unlike records relating to an arrest that results in a dismissal, a person petitioning for restricted access of records after a conviction must wait at least eight years after the completion of his or her sentence.

 

Limited Access to the Limited Criminal History of a Person Discharged from Probation, Imprisonment, or Parole, Ind. Code § 35-38-5

A final remedy applies 15 years after a person is discharged from probation, imprisonment, or parole for the last conviction for a crime. Under those circumstances, a person may petition the state police department to limit access to the person’s limited criminal history to criminal justice agencies.

The Dog Day Is Over

The United States Supreme Court held oral argument today in two cases involving the use of drug-sniffing dogs originating from Florida.

Florida v. Jardines, case no. 11-564, concerns the propriety of using a drug-sniffing dog to search private property. Florida v. Harris, case no. 11-817, concerns the amount of evidence of training required before a court can use a drug dog alert as a basis for a search. Lyle Denniston at SCOTUSblog has an excellent summary of the cases.

Professor Orin Kerr at Volokh Conspiracy speculates that the justices will conclude the use of the drug-sniffing dog on private property in Jardines was violative of the Fourth Amendment, and that the training of the dog in Harris was adequate and therefore not a violation of the Fourth Amendment.

 

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