An Indiana Expungement Lawyer Answers The Most Frequently Asked Questions About the Indiana Expungement Law in 2023.
** Updated for 2023 ***
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What is the Indiana Expungement Law?
A conviction for a crime can create many obstacles for an adult. The stigma of being labeled an “ex-con” or felon may follow them through life. Additionally, background checks conducted by most landlords and employers can make finding housing or employment very difficult. Even those convicted of simple misdemeanors in their youth, or in college, are suffering. Many are being denied employment and housing because of past convictions. The research does support the fact that background checks are becoming more frequent. In fact, according to one study, “96% of employers conduct at least one type of background screening.“
The Indiana Expungement Statue states that a person whose record is expunged shall be treated as if the person had never been convicted of the offense.
In 2013, the Indiana Legislature offered some relief to those convicted of certain misdemeanors and felonies. It passed the Indiana Expungement Law.
“One important part of the Indiana Expungement law is that it prohibits the unlawful discrimination by employers against those who have had their criminal records expunged.”
The Indiana Expungement Statue, IC-35-38-9-10(b). states:
(b) It is unlawful discrimination for any person to:
(1) suspend;
(2) expel;
(3) refuse to employ;
(4) refuse to admit;
(5) refuse to grant or renew a license, permit, or certificate necessary to engage in any activity, occupation, or profession; or
(6) otherwise discriminate against;
any person because of a conviction or arrest record expunged or sealed under this chapter.
The Indiana General Assembly wanted to give individuals who have been convicted of certain crimes a second chance by not experiencing many of the stigmas associated with a criminal conviction, especially where an individual has completed the requirements established by the trial court and has since been a law-abiding citizen.
In other words, the Indiana Expungement Law gives individuals that ability to clear their criminal slate and start over. No more having to worry about filling out background checks.
“The Indiana Expungement Statue states that a person whose record is expunged shall be treated as if the person had never been convicted of the offense.”
In fact, the Indiana Expungement Statute states that in any application for employment, a license, or other right or privilege, a person may be questioned about a previous criminal record ONLY as follows:
“Have you ever been arrested for or convicted of a crime that has NOT been expunged by a court? So a person who has had their record expunged can truthfully answer “No” to this question.
Want to know if you qualify for an expungement in Indiana? Click to begin a free no obligation Indiana Expungement Evaluation for a free eligibility determination by an Indiana Expungement Lawyer.
The Indiana Expungement Law can be found in Indiana Code 35-38-9, which is titled “Sealing and Expunging Conviction Records.” It is also known as the Second Chance Act.
Amendments to the Indiana Expungement Law
The Indiana Expungement law originally passed in 2011, and it was revised and condensed in 2013 into Indiana Code 35-38-9. It has been amended several times and the most recent revision took effect on July 1, 2022.
Some of the most recent amendments allowed for a “collateral action” to be expunged in addition to arrests and convictions. The statute defines a “collateral action” as an action or proceeding, including an administrative proceeding, that is factually or legally related to an arrest, a criminal charge, a juvenile delinquency allegation, a conviction, or a juvenile delinquency adjudication. The term includes a proceeding or action concerning a seizure, a civil forfeiture, and a petition for specialized driving privileges. This would also include probation transfer cases, where a defendant transferred their probation to another Indiana county after conviction.
The July 2022 amendment brings another significant change where the Court will automatically order expungement for arrests and/or charges filed against an individual after June 30, 2022 that do not result in a criminal conviction, More on this is included below.
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Can you have Arrest and/or Charging Records Expunged in Indiana?
Yes. An arrest can be a big problem on background checks too. Even if not convicted, just being charged with certain crimes, can scare off a potential employer or landlord, even though the arrest or charges never resulted in a conviction. Section 1 of the Indiana Expungement Law allows arrests and charges to be expunged if:
- The arrest and/or charges:
- Did not result in a conviction; or
- Resulted in a conviction that was vacated on Appeal; and
- The person is not currently participating in a pretrial diversion program.
The waiting period is one (1) year from the arrest (if no charges were filed) or one (1) year from the date charges were filed (as long as the above is applicable). So one year after you have been arrested and/or charged, if the case was dismissed, or you received a pre-trial diversion (and completed that diversion), or if you were found not guilty, you can have your arrest and/or charging record expunged.
However, for arrests after June 30, 2022 that do not result in charges being filed, or if charges are filed after June 30, 2022 but then subsequently dismissed (through diversion or otherwise), or where the defendant is acquitted of those charges, the person will no longer need to file a Petition for expungement as it should be completed by the Court automatically.
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Can you have Pretrial Diversion Records Expunged in Indiana?
Absolutely.
A Pretrial diversion is a program that was allows someone charged with a crime to avoid a criminal conviction on their record. It is usually only available to people charged with a first-time misdemeanor but it may depend on the type of misdemeanor and the person’s criminal background.
To participate in the pretrial diversion program, a person must admit to the crime to which they are being charged. But, if a person completes all the requirements of the pretrial diversion program, the State will then dismiss the charges against them. All that’s left then is an arrest and charging record, which as we discussed above, can be expunged.
Since the charges against you are dismissed after successfully completing a pretrial diversion program, it is just like an arrest and or charge which did not result in a conviction. So to expunge record of a pretrial diversion, the requirements are the same as for an arrest/charge. But first, you must complete your pretrial diversion program. If you have questions about whether you are eligible for an Indiana expungement of your arrest record, you should speak to an Indiana Expungement Lawyer.
Indiana Expungement Law Allows For the Expungement of All Misdemeanors and Certain Felonies.
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Can you have Misdemeanor Convictions Expunged in Indiana?
Absolutely. All misdemeanor convictions can be expunged under Indiana’s Expungement law. This includes Class D felonies and Level 6 felonies that were reduced to a misdemeanor by the Court via Alternative Misdemeanor Sentencing (“AMS”).
Your misdemeanor conviction(s) WILL be expunged if the court finds:
- It’s been five (5) years from the date of the conviction;
- You have no criminal charges pending;
- You have paid all your fines, fees, court costs, and restitution obligations; and
- You have not been convicted of any crime anywhere in the U.S. within the previous five (5) years.
If it has not been five years from the date of your conviction, then the Indiana Expungement Law states your misdemeanor can only be expunged if the prosecutor agrees in writing to a shorter period of time. But even if it has been five years from the date of your conviction, you also cannot have any other convictions anywhere in the five years prior to filing for expungement. So if you have a misdemeanor from December of 2015, you will become eligible to expunge it in December of 2020. But, lets say you obtained another criminal conviction in June of 2020. You will now need to wait until June of 2025 to become eligible since you cannot have any other convictions in the five years prior to filing for expungement.
If you have met these requirements, the expungement is mandatory. That means the Court has no choice but to grant your misdemeanor expungement. There is no discretion left to the judge like with higher level felonies. Talk to an Indiana Expungement Lawyer to find out if you qualify.
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Can you Get a Felony Expunged in Indiana?
Yes, but it depends on the type of class or level of felony conviction. Some convictions are not eligible for expungement. Also, there is a difference between a Class D Felony or a Level 6 Felony Conviction and all other Felony Convictions (Class A, B, or C Felonies and/or Level 1-5 Felonies). We will examine the differences and exclusions below:
CLASS D FELONIES OR LEVEL 6 FELONIES
Your Class D Felony or Level 6 Felony (which was NOT reduced to misdemeanor with a plea or at sentencing) WILL be expunged if the court finds:
- It’s been eight (8) years from the date of the conviction;
- You have no criminal charges pending;
- You have paid all your fines, fees, court costs, and restitution obligations; and
- You have not been convicted of a crime within the previous eight (8) years.
If it hasn’t been eight (8) years from the date of your conviction, then pursuant to the Indiana Expungement Law, your felony can only be expunged if the prosecutor agrees in writing to a shorter period of time.
This rule does not apply to certain people as stated in Indiana Code 35-38-9-3(b), including sex offenders and violent offenders.
If you have met these requirements, the expungement is mandatory. That means the Court has no choice but to grant your Level 6 Felony or Class D Felony expungement. There is no discretion left to the judge like with higher level felonies. Talk to an Indiana Expungement Lawyer to find out if you qualify.
NON-VIOLENT FELONIES
All other Felony conviction(s), Class A, B or C Felonies and Level 1-5 Felonies MAY be expunged if the court finds:
- It’s been eight (8) years from the date of the conviction;
- You have no criminal charges pending;
- You have paid all your fines, fees, court costs, and restitution obligations; and
- You have not been convicted of a crime within the previous eight (8) years.
If it has not been eight years from the date of your conviction, then your felony can only be expunged if the prosecutor agrees in writing to a shorter period of time.
This rule does not apply to certain people as stated in Indiana Code 35-38-9-4(b), including public officials, sex offenders and violent offenders.
Section 4 of the Indiana Expungement Law deals with more serious crimes. Therefore, even if you meet all the requirements, the court MAY grant your expungement, but it is not mandatory. The court may use its discretion. So for a Level 1-5 Felony, or a Class A, B, or C Felony, your expungement is not mandatory. Your lawyer may have to attend a hearing to argue why the Court should grant your expungement. Evidence regarding how you have turned your life around can help persuade the judge to grant your expungement.
If your expungement is denied you can reapply for expungement every three years afterwards. Remember this only applies to Levels 1-5 Felonies and Class A-C Felonies. Level 6 felonies and Class D felonies are mandatory expungements.
PUBLIC OFFICIALS AND VIOLENT OFFENDERS
Your Felony conviction, MAY be expunged if the court finds:
- It’s been ten (10) years from the date of the conviction;
- You have no criminal charges pending;
- You have paid all your fines, fees, court costs, and restitution obligations;
- You have not been convicted of a crime within the previous ten (10) years; and
- The prosecutor consents in writing to the expungement.
If it hasn’t been ten years from the date of your conviction, then your felony can only be expunged if the prosecutor agrees in writing to a shorter period of time.
This rule does not apply to certain people as stated in Indiana Code 35-38-9-5(b), including crimes that resulted in death, sex offenders and persons convicted or two or more felonies involving the unlawful use of a deadly weapon.
As Section 5 of the Indiana Expungement Law deals with violent offenders, it requires the consent of the prosecutor (even if it has been ten years). Furthermore, even if the prosecutor consented, and you meet all the other requirements, the court MAY grant your expungement, but it is not mandatory.
EXPUNGEMENT EXCLUSIONS
Not all convictions are eligible to be expunged under the Indiana Expungement Statute. Certain convictions are altogether excluded from expungement. Other convictions are not eligible under certain sections. You should speak to an experienced Indiana Expungement Lawyer to determine if your conviction(s) is eligible under Indiana law. Below is a list of convictions that cannot be expunged under the current Indiana Expungement Law:
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Murder
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Voluntary Manslaughter
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Human Trafficking
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Rape
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Child Molesting
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Child Exploitation
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Child Solicitation (IC 35-42-4-6).
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Sexual misconduct with a minor (IC 35-42-4-9), with an exception for certain circumstances
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Criminal deviate conduct (IC 35-42-4-2) (before its repeal).
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Child seduction (IC 35-42-4-7).
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Sexual battery (IC 35-42-4-8).
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Possession of child pornography (IC 35-42-4-4(d) or IC 35-42-4-4(e)).
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Vicarious sexual gratification (including performing sexual conduct in the presence of a minor) (IC 35-42-4-5).
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Sexual misconduct by a service provider with a detained or supervised child (IC 35-44.1-3-10(c)).
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Criminal confinement (IC 35-42-3-3), if the victim is less than eighteen (18) years of age, and the person who confined or removed the victim is not the victim’s parent or guardian.
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Incest
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Promotion of human sexual trafficking under IC 35-42-3.5-1.1.
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Promotion of child sexual trafficking under IC 35-42-3.5-1.2(a).
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Promotion of sexual trafficking of a younger child (IC 35-42-3.5-1.2(c)).
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Child sexual trafficking (IC 35-42-3.5-1.3).
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Promoting prostitution (IC 35-45-4-4) as a Class B felony (for a crime committed before July 1, 2014) or a Level 4 felony (for a crime committed after June 30, 2014).
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Kidnapping (IC 35-42-3-2), if the victim is less than eighteen (18) years of age, and the person who kidnapped the victim is not the victim’s parent or guardian.
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How Long Does It Take For My Record to Be Expunged?
Once a petition for expungement is filed, it generally takes anywhere from 30-180 days till the court approves the petition. More commonly, we are seeing these approved between 30-60 days after filing, but it depends on the County.
Want to know if you qualify for an expungement in Indiana? Click to begin a Free Indiana Expungement Evaluation and Avnet Law will e-mail you within 24 hours to let you know if you are eligible.
If the prosecutor doesn’t object to the petition, the court may grant the petition without a hearing. The Indiana Expungement Statute requires the prosecutor to object to the petition within 30 days of receipt. The prosecutor must also specify why the prosecutor is objecting. This gives your Indiana Expungement Lawyer time to gather additional evidence needed to prove that you are indeed eligible or to help convince the court to grant the expungement.
If the prosecutor objects to the expungement, the Indiana Expungement law requires the court to set the matter for hearing. The hearing should be set for sooner than 60 days from the date the Expungement petition was filed.
But even if the prosecutor does not object, the court may still require a hearing. Its may be a good idea to have an attorney with you at the hearing to advocate on your behalf.
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How Many Times Can I Expunge My Record?
“Indiana’s Expungement law only allows a person to expunge their criminal record ONE (1) time in their lifetime. So, it is important you get it done properly. We recommend you hire a knowledgeable Indiana Expungement Lawyer to ensure the expungement is completed properly.”
But, even though you can only expunge records of your criminal convictions once in your life, you can file petitions for all your different Indiana convictions in all counties in Indiana. Also, there is no limit to the number of expungement petitions you may file regarding arrests and/or charges that did NOT result in a conviction.
The Indiana Expungement Statute states that if you have multiple convictions in one county, you must consolidate all the convictions you wish to expunge into one petition for expungement. If you have convictions in different Indiana counties, you will need to file separate petitions in each county.
However, all petitions for expungement filed in separate counties for offenses committed in those counties count as one petition if all the expungement petitions are filed in a 365-day period. Again, its a good idea to speak to an Indiana Expungement Lawyer to make sure your expungement is done correctly.
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Does an Indiana Expungement Restore Gun Rights?
Yes. A conviction that is expunged restores your rights to own a firearm, with ONE exception. Indiana Code 35-38-9-6(f) states that if you were convicted of a misdemeanor or felony involving domestic violence, your right to possess a firearm is not automatically restored. The right of a person convicted of a crime of domestic violence to possess a firearm may be restored only in accordance with IC 35-47-4-7, another statute that requires a separate petition to be filed with the court.
Firearm rights are governed by both federal law and Indiana law. However, federal law holds that a conviction that has been expunged cannot be considered a conviction for purposes of denying firearm rights under federal law. The federal government has also held that Indiana’s Expungement law is sufficient in removing the federal firearms prohibition in the Gun Control Act.
We have written more extensively about Indiana’s Gun Laws here.
In addition to firearm rights, Indiana Code 35-38-9-10(c) states that after being granted an expungement, the civil rights of a person whose conviction has been expunged shall be fully restored, including the right to vote, to hold public office, to be a proper person under IC 35-47-1-7(2), and to serve as a juror.
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What is the Cost for an Indiana Expungement?
There are a few costs that are associated with an Indiana Expungement. There are filing fees for each petition for expungement you file into every county as well as attorneys’ fees if you hire an Indiana Expungement lawyer.
If you are filing a petition to expunge an arrest or pre-trial diversion ONLY in a particular county, then there is NO filing fee. For all other expungement cases involving convictions, the filing fees are generally around $162.10 for each petition. So, if you have two convictions in Marion county, the filing fee would be around $162.10 total for both convictions. But if you have three convictions, one in Marion County, one in Wayne County, and one in Hamilton County, then the filing fees would be around $162.10 each or about $486.30 total.
An Indiana Expungement Lawyer’s fees vary from firm to firm, and usually depend on the number of counties where the petition(s) will be filed and the type of convictions involved. Some counties require hearings for expungement petitions while other counties may grant the petition without a hearing. Also, Class A, B and C Felonies as well as Level 1-5 Felonies are not mandatory expungements and usually require a hearing to convince the Court to grant the expungement. Thus, they involve more preparation and work.
At Avnet Law, we charge a flat fee for filing expungement petitions. That way, the client will not be billed by the hour. The fee will cover all the work from the beginning until the petition is granted, including any required hearings. And you will have the peace of mind knowing that the expungement is being completed by an Indiana Expungement lawyer who will complete the job properly the first time.
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Which Convictions Cannot Be Expunged in Indiana?
If your petition for expungement is denied, Indiana’s Expungement law allows a person to file a subsequent petition ONLY regarding one of the convictions that were included in the original petition that was not expunged. A subsequent petition for expungement cannot include any conviction that was not included on the original petition for expungement. So make sure your Indiana Expungement Lawyer includes all of your convictions in the original petition(s).
If the Court denies the petition due to its discretion for a high class or level felony, a subsequent petition can only be filed after three (3) years from the date of the last petition was denied.
Because you only get one shot at an expungement in Indiana, its important you speak to an Indiana Expungement Lawyer.
Contact an Indiana Expungement Lawyer to Expunge Your Criminal Record
Schedule a Free Consultation with an Indiana Expungement Lawyer
Indiana’s expungement law offers those who may have made mistakes in the past one (1) chance only to wipe the slate clean of convictions. Since you only have once chance to expunge your criminal record, it is important you get it done right.
Want to know if you qualify for an expungement in Indiana? Click to begin a free no obligation Indiana Expungement Evaluation to determine eligibility.
Avnet Law understands the issues, has the experience, and can advise and represent you in obtaining your expungement. We also can advise you regarding other criminal law legal issues.
Call 1-877-77-AVNET to Schedule a Free Consultation with an Indiana Expungement Lawyer Today or contact us below with any additional questions you may have expungements in Indiana.