Changes to Indiana expungement laws for 2020

On March 18, 2020, Senate Bill 47 was signed into law as P.L. 55. In its final form S.B. 47 contains the following provisions.

Criminal expungement statute

• IC 35-38-9-2 is amended to provide that if a court reduces a Class D or Level 6 felony to a misdemeanor, the five-year waiting period for expungement begins on the date of the felony
conviction and not on the date the felony was converted to a misdemeanor. The amendment is effective upon passage. The issue had been the subject of some confusion and is the subject of a case now pending in the Indiana Supreme Court, N.G. v. State of Indiana, 19S-XP-00673, which had oral argument on February 20, 2020.

• A new section, IC 35-38-9-9.5, is added to the criminal expungement statute, and sets out the procedure for expunging records of a “collateral action” that occurred in a different county than the county that issued the expungement order. A collateral action is a proceeding that is related to an arrest, criminal charge, or conviction, and includes such things as proceedings for specialized driving privileges and civil forfeitures.

• IC 35-38-9-10 is amended to allow a law enforcement agency or a probation or community corrections department to inquire about a job applicant’s expunged records and refuse to employ the person. (This change was the subject of S.B. 22, reported on in a previous post. Its author, Sen. Philip Boots, was added as an author to S.B. 47.)

Protection order cases

• IC 34-26-7.5-2 is amended to add “protection order records” as a defined term. Records to be expunged under Chapter 7.5 now include all records that relate to the protection order, including the petition for the protection order. The expungement law now also covers an ex parte petition for a protection order that was not granted by the court.

• A proposal that would have added a new section to the Civil Protection Order Act, IC 34-26-5, providing for automatic expungement of a petition for an order of protection that is denied, was removed and is not part of P.L. 55.

• Companies that provide background checks (criminal history providers) are prohibited from including expunged protection order records in criminal history reports. This was achieved by amending IC 24-4-18-1 to add civil protection orders and protection order records to the definition of “criminal history information.” Criminal history providers must periodically review their records and remove records relating to expunged protection orders.

Except for the amendment to IC 35-38-9-2, the provisions of P.L. 55 discussed here are effective July 1, 2020.

Dan McNamara is a litigation attorney in Fort Wayne, Indiana. His practice includes work with clients in all Indiana counties in having their criminal records sealed. He can be reached at 260 425-9777 mcnamara@fvglaw.com