[RLT2471]

My question involves criminal law for the state of: indiana

Today I was flagged from jioning the army due to a domestic violence cas in 1998. my wife now of 8 years and my girlfriend then called the police and said i hit her i did not the public defender told me to plead guilty and i got probation and anger management classes. I filled for a gun permit a short time later and was told I had to wait 6 years from this conviction which I did in 2004 I obtained my permit does this mean I should not be in this catagory.
or will I need to get this expunged.

[divemedic]

Permit or not, Federal Law states that anyone convicted of a misdemeanor crime of domestic violence cannot be in possession of a firearm or ammunition. If you are caught with either, you can be convicted of a felony. There are no exceptions to this law for police or military. None. (Even if you have a permit from your state, you are still in violation of Federal Law):

[COLOR="Navy"]18 USC 922

(g) It shall be unlawful for any person—

(snip irrelevant parts)

(9) who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

(h) It shall be unlawful for any individual, who to that individual’s knowledge and while being employed for any person described in any paragraph of subsection (g) of this section, in the course of such employment—
(1) to receive, possess, or transport any firearm or ammunition in or affecting interstate or foreign commerce; or
(2) to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.[/COLOR]

There is no way to get this expunged, as congress defunded the program to get firearm rights restored. That is it, you cannot ever own a firearm or ammunition again. Period.

[AllisonDanby]

Divemedic,

what if the conviction was sealed and expunged?

[cyjeff]

Most jurisdictions will not allow the expungement of DV charges.

For just this reason... the state doesn't want to put a gun back in the hands of a person that might return to hurt his/her family.

[divemedic]

There are NO exceptions, and there is no way around it. I personally think this is a travesty, because people who pled to misdemeanor assault charges before this law went into effect are retroactively having their rights removed from them.

[AllisonDanby]

in some states domestic violence can be expunged. Expungement clears all records of arrest/conviction, so how can the army find out?

[aardvarc]

Expungement doesn't clear ALL records, only what is available to the public via regular channels within the system (ie won't show up on a routine criminal history printout). It does NOT, however, unprint newspapers, or unbroadcast news stories, or wipe out jail intake records, or impact the police department's CAD or other internal systems (all of which are public record and are routinely checked as part of any background investigation). Expungement only REALLY means that someone has to take a very few additional steps to uncover the arrest (although uncovering the court's disposition is much more difficult post expungement).

[cyjeff]

in some states domestic violence can be expunged. Expungement clears all records of arrest/conviction, so how can the army find out?

Not in Indiana...

Quoting Indiana Expungement Law
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.

If there was a conviction, there cannot be expungement.