Indiana Expungement Law

[JRob17]

When I was in college I took my computer to get fixed at Best Buy and through email they discoved child pornography images. I was in some stupid chat room and received images just from being in a chat room. I was arrested and charged with poss. of child porn, but the case never went to trial. I got it dismissed through a diversion. I'm out of college now, but i have this awful charge on my record, and i don't even have the confidence to start looking for a job. Can this be expunged since the case was dismissed.

[aaron]

Indiana's laws governing expungement appear to permit expungement only where:

* The wrong person was arrested for the alleged offense;
* There was no probable cause for the arrest; or
* Charges were never filed or were dropped because a judge decided that no offense occurred.

IC 35-38-5-1 - Petition; grounds; verification; filing; contents; service; notice of opposition; hearing

Sec. 1. (a) Whenever:

(1) an individual is arrested but no criminal charges are filed against the individual; or

(2) all criminal charges filed against an individual are dropped because:
(A) of a mistaken identity;
(B) no offense was in fact committed; or
(C) there was an absence of probable cause;
the individual may petition the court for expungement of the records related to the arrest.

(b) A petition for expungement of records must be verified and filed in the court in which the charges were filed, or if no criminal charges were filed, in a court with criminal jurisdiction in the county where the arrest occurred. The petition must set forth:

(1) the date of the arrest;

(2) the charge;

(3) the law enforcement agency employing the arresting officer;

(4) any other known identifying information, such as the name of the arresting officer, case number, or court cause number;

(5) the date of the petitioner's birth; and

(6) the petitioner's Social Security number.

(c) A copy of the petition shall be served on the law enforcement agency and the state central repository for records.

(d) Upon receipt of a petition for expungement, the law enforcement agency shall notify the court of the name and address of each agency to which any records related to the arrest were forwarded. The clerk shall immediately send a copy of the petition to each of those agencies. Any agency desiring to oppose the expungement shall file a notice of opposition with the court setting forth reasons for resisting the expungement along with any sworn statements from individuals who represent the agency that explain the reasons for resisting the expungement within thirty (30) days after the petition is filed. A copy of the notice of opposition and copies of any sworn statements shall be served on the petitioner in accordance with the Rules of Trial Procedure. The court shall:

(1) summarily grant the petition;

(2) set the matter for hearing; or

(3) summarily deny the petition, if the court determines that:
(A) the petition is insufficient; or
(B) based on information contained in sworn statements submitted by individuals who represent an agency, the petitioner is not entitled to an expungement of records.

(e) If a notice of opposition is filed and the court does not summarily grant or summarily deny the petition, the court shall set the matter for a hearing.

(f) After a hearing is held under this section, the petition shall be granted unless the court finds:
(1) the conditions in subsection (a) have not been met;
(2) the individual has a record of arrests other than minor traffic offenses; or
(3) additional criminal charges are pending against the individual.


IC 35-38-5-2 - Delivery of records to individual or destruction
Sec. 2. If the petition for expungement is granted, the law enforcement agency shall within thirty (30) days of receipt of the court order, deliver to the individual or destroy all fingerprints, photographs, or arrest records in their possession.


IC 35-38-5-3 - Effect of grant of petition

Sec. 3. Whenever the petition of an individual under section 1 of this chapter is granted, no information concerning the arrest may be placed or retained in any state central repository for criminal history information or in any other alphabetically arranged criminal history information system maintained by a local, regional, or statewide law enforcement agency. However, this chapter does not require any change or alteration in any record (such as a police blotter entry) made at the time of the arrest or in the record of any court in which the criminal charges were filed.


IC 35-38-5-4 - Action by person whose records are expunged that might be defended with contents of such records

Sec. 4. If a person whose records are expunged brings an action that might be defended with the contents of such records, the defendant is presumed to have a complete defense to such an action. In order for the plaintiff to recover, he must show that the contents of the expunged records would not exonerate the defendant. The plaintiff may be required to state under oath whether he had records in the criminal justice system and whether those records were expunged. If the plaintiff denies the existence of the records, the defendant may prove their existence in any manner compatible with the law of evidence.


IC 35-38-5-5 - Petition to limit access to limited criminal history of person discharged from probation, imprisonment, or parole

Sec. 5. (a) This section does not apply to a request to a law enforcement agency for the release or inspection of a limited criminal history to a noncriminal justice organization or individual whenever the subject of the request is described in IC 10-13-3-27(a)(8) or IC 10-13-3-27(a)(12).

(b) A person may petition the state police department to limit access to the person's limited criminal history to criminal justice agencies if more than fifteen (15) years have elapsed since the date the person was discharged from probation, imprisonment, or parole (whichever is later) for the last conviction for a crime.

(c) When a petition is filed under subsection (b), the state police department shall not release limited criminal history to noncriminal justice agencies under IC 10-13-3-27.

[JRob17]

So will this charge show up on everything. I mean when I fill out an application it asks if I have ever been convicted of a misdemeanor or a felony. I say no, since it was dismissed, so will it show up. Do i have any options here, in getting this thing off of my record. Or am i worrying for no reason since the charge was dismissed?

[aaron]

The statute speaks for itself; if you feel you qualify, petition for expungment. If not, you should consider consulting an Indiana lawyer to see if you have other avenues of relief.

It is possible that an arrest would appear in a background check.

Indiana apparently also permits people to petition the state police, fifteen or more years after an arrest or completion of their sentence, to seal their arrest record.