What Does An Expungement Do?

The expungement laws in Indiana went through a complete revitalization in July 2013 in what the state legislature deemed the “second chance law.” We have written several articles detailing the expungement process, timeline, and alternative DCS, CHINs, and protection order petitions. This article looks to specifically what happens once an expungement has been granted, timelines, and your rights when you moving forward post-expungement.

What Happens After an Expungement is Granted?

When a misdemeanor or low level felony expungement gets granted, the court shall order the department of corrections; the bureau of motor vehicles; and each law enforcement agency and other person who incarcerated, prosecuted, provided treatment for, or provided other services for the person under an order of the court to prohibit the release of the person’s records or information in the person’s records to anyone without a court order, other than a law enforcement officer acting in the course of the officer’s official duties (law enforcement includes prosecutors in this instance). For this type of expungement, the case records are to no longer be reported on public background checks. Additionally, successful petitioners will be able to state on most applications for jobs or schools that they have never been arrested, charged, or convicted of a crime before and can otherwise deny involvement in the conviction.

Once the expungement has been granted, it will be distributed to the agencies the attorney has designated. Common agencies to be distributed to include local law enforcement, the Indiana State Police Central Repository, Federal Bureau of Investigations, and other local agencies. These agencies typically take 60-90 days or so to process the expungement orders.

Who Can Still See Your Expunged Records?

However, even after expungement, there are certain state based agencies who can view expunged records. Sealed records may still be disclosed to a prosecuting attorney, a defense attorney (with court order), a probation department (with court order), the Federal Bureau of Investigations, the Department of Homeland Security, Indiana Supreme Court, members of the state board of law examiners, the bureau of motor vehicles, Federal Motor Carrier Administration, and the Commercial Driver’s License Information System if required to report a conviction for a violation of a traffic control law.

One of the more common expungement questions we get involve CDL drivers or other individuals questioning what happens to an OVWI conviction in their situation. Although it will come off a traditional criminal background check, for driver insurance purposes and due to federal regulations, it is likely to still be reported on those avenues. Additionally, an expungement does not have an effect on driver’s license suspensions, habitual traffic violator considerations, habitual offender designations, or the sex offender registry.

Indiana Code § 35-38-9-10 (b) states as follows:

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 §35-38-9.

The above statute makes it illegal for an employer to make a hiring decision based upon the expunged conviction. Also, law enforcement agencies are not exempt from this statute absent a legislative exception. In the event a potential employer or other group does discriminate, an individual who has had their records expunged may petition for contempt following a discrimination incident. Such petition may be filed in either the court that granted the petition for expungement or any court of general jurisdiction. Finally, any application for employment or other privilege may not have a question asking if the applicant has had their record expunged.

An attorney from Banks & Brower can communicate with the prosecuting attorneys on your behalf, petition for expungement according to state rules, and provide the courts with all necessary information and documentation surrounding your case. We can make sure your expungement request falls into the right hands at the right time, optimizing your odds of success. We’ll work with the courts to request early filing, if applicable, to expedite the expungement process. Our Indianapolis expungement attorneys will do everything we can to clear your record. To learn more, contact us at 317-870-0019 or email us at info@banksbrower.com to request a free consultation.