Sunday, April 20, 2014

How to Handle Expungements

June 16, 2010 by James R. Walker

In regards to court records, what is expungement? When is it authorized? How is it accomplished?

Black’s Law Dictionary tells us to expunge is “to destroy or obliterate; blot out; efface designedly; strike out wholly.”

Express authority for courts to order expungement of records in Indiana is rather limited. Statutory authority for expungement of arrest records is found in I.C. 35-38-5-1 et seq.1 Expungement of records concerning delinquent children and children in need of services is authorized by I.C. 31-39-8-1 et seq.

Case law interpreting the Governor’s pardon power under Article V, Section 17 of the Indiana Constitution authorizes a trial court to expunge a defendant’s record of conviction.2

The arrest records expungement statute expressly provides that the granting of an expungement under I.C. 35-38-5 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.”3 At the same time, the statute does not specifically prohibit the court from ordering a change or alteration in a court record, but the court might wish to consider whether to order the court records  removed from public access under the procedures set forth in Administrative Rule 9(H) or sealed under I.C.5-14-3-5.5. Therefore, it is extremely important that the expungement order clearly state what records are to be expunged.

A petition under I.C. 35-38-5-1 is filed in the court in which the criminal charges were filed, or if no charges were filed, then in a court with criminal jurisdiction in the county where the arrest occurred. The Division of State Court Administration instructs that the petition should be filed under the case number of the original criminal case, but if a case number had not been assigned, then the petition should be assigned an MC case type case number.

All expungement orders entered in criminal or juvenile proceedings are confidential and excluded from public access under Administrative Rule 9(G)(1)(g). Regardless of what records are ordered to be expunged, the order of expungement should be placed in the Confidential Record of Judgments and Orders (RJO).

If court records pertaining to a case are to be expunged, then all the records pertaining to the case, including the Chronological Case Summary (CCS), will be destroyed under the terms of the expungement order. To replace the original CCS, a replacement CCS should be created containing only the case number, a statement that the case had been expunged, and the date the expungement order was entered.  To replace all the orders concerning the expunged case in the RJO, the original orders should be removed and replacement pages should be inserted containing only the same information as noted on the replacement CCS.

To give guidance to the clerk, the order should clearly state whether the records to be expunged are only records dealing with the arrest or whether court records are to be expunged too, and should be as specific as possible as to which records the court is ordering to be expunged.

Expungement of Arrest Records

When a person has been arrested but no criminal charges are filed, or if charges are filed, all criminal charges are dropped against the person because (1) of mistaken identity, (2) no offense was in fact committed, or (3) there was an absence of probable cause, the person may file a verified petition for expungement of records related to his arrest under I.C. 35-38-5-1.

The petition is filed in the court in which the criminal charges were filed, or if no charges were filed, then in a court with criminal jurisdiction in the county where the arrest occurred. The Division instructs that the petition should be filed under the case number of the original criminal case, but if a case number had not been assigned, then the petition should be assigned an MC case type case number. The petition must be served on the law enforcement agency that made the arrest and on the Indiana State Police central records repository.

When the law enforcement agency receives the petition, it must notify the court of any agency to which records related to the arrest were forwarded. The clerk is required to immediately send a copy of the petition to each of those agencies. Any agency wishing to oppose the expungement has 30 days from the date of filing of the petition to notify the court of its opposition and serve the petitioner with a copy. The court may either summarily grant or deny the petition or may set the matter for hearing.

If the court grants the petition, the law enforcement agency within 30 days of receiving the order, must either destroy or deliver to the person all fingerprints, photographs, or arrest records in its possession.4  Moreover, no information concerning the arrest may be 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.5

Expungement of Juvenile Records

Records created as a result of an allegation that a child is a delinquent child or a child in need of services may be expunged under I.C. 31-39-8-1. The juvenile court is authorized to remove from the court’s files, the files of any law enforcement agency, and the files of any other person who has provided services to a child under court order, those records pertaining to the person’s involvement in juvenile court proceedings. If the court grants the expungement, the statute directs that the court order each law enforcement agency and each person who provided treatment to the child to send that person’s record to the court.6  The records then may either be destroyed or given to the person to whom the record pertains.7

Expungement of Records As Result of Pardon

Although the Bergman case established that the record of a defendant’s conviction must be expunged following an unconditional pardon by the governor, there is no statute that sets out the requirements or procedure for expunging records following a pardon. Blake v. State, 860 N.E.2d 625, 628 (Ind. Ct. App. 2007)  In Blake, the defendant filed a petition to “expunge records of arrest, conviction, and incarceration following gubernatorial pardon.”  The Court of Appeals held that the trial court properly denied the request to expunge records related to the arrest because I.C. 35-38-5-1 is the only means by which arrest records may be expunged, and that statute does not apply when a defendant is convicted and pardoned.