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.

Case Update: Criminal Liability for Protected Persons and No-Contact Orders

The Indiana Court of Appeals addressed whether a protected person can be held criminally liable for aiding, inducing, or causing another person to violate the no-contact order today in Melissa Patterson v. State of Indiana. Patterson obtained a no-contact order against her fiance after an incident where she was the victim of domestic battery. She was subsequently found to be living with him, and she was later charged with aiding a violation of the no-contact order.

In a case of first impression in Indiana, Judge Friedlander wrote for a 2-1 majority that “the General Assembly did not intend that the prohibitions in I.C. § 35-46-1-15.1 should be applied to a protected person under a no-contact order.” Citing the Ohio Supreme Court case of State v. Lucas, 795 N.E.2d 642 (Ohio 2003), the majority recognized a compelling public policy interest in insulating the protected person from prosecution, because otherwise “a violator of a protection order could create a real chill on the reporting of the violation by simply threatening to claim that an illegal visit was the result of an illegal invitation.”

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