Introduced Version




SENATE BILL No. 392

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DIGEST OF INTRODUCED BILL



Citations Affected: IC 35-38-5.

Synopsis: Expungement. Provides additional situations in which a court may expunge arrest records, and establishes certain procedures concerning expungement. Provides that law enforcement agencies may not release a limited criminal history to noncriminal justice agencies if certain petitions are filed. Provides that it is a Class B misdemeanor if an employee of a law enforcement agency violates the expungement of arrest records laws.

Effective: July 1, 2011.



Taylor


    January 11, 2011, read first time and referred to Committee on Corrections, Criminal, and Civil Matters.




Introduced

First Regular Session 117th General Assembly (2011)


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SENATE BILL No. 392


    A BILL FOR AN ACT to amend the Indiana Code concerning criminal law and procedure.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 35-38-5-1; (11)IN0392.1.1. -->     SECTION 1. IC 35-38-5-1 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 1. (a) Whenever:
        (1) a criminal charge filed against an individual is dismissed; or
        (2) an individual is arrested and charged with committing an offense but:
            (A) is subsequently found not guilty of committing the offense; or
            (B) following the person's conviction, the person's conviction for one (1) or more offenses is reversed or vacated on appeal;
the court having jurisdiction over the case shall, upon its own motion, not later than thirty (30) days from the date the court learns of the event described in subdivision (1) or (2), order the state police department and every law enforcement agency having records related to the arrest of the individual in relation to the charge described in subdivision (1) or reversed or vacated

conviction described in subdivision (2) to expunge these records.
    (a) (b) Whenever:
        (1) an individual is arrested but no criminal charges are filed against the individual; or
        (2) all a criminal charges charge 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;
         is dismissed;
         (3) an individual is arrested and charged with committing an offense but:
            (A) is subsequently found not guilty of committing the offense; or
            (B) following the person's conviction, the person's conviction for one (1) or more offenses is reversed or vacated on appeal; or
        (4) a charge, arrest, or conviction appears on an individual's criminal history because of identity theft, deception, or mistake;
the individual may petition the court for expungement of the records related to the arrest
    (b) (c) This subsection does not apply if an individual has filed a petition under subsection (b). If the court having jurisdiction over the case learns that a charge, arrest, or conviction appearing on a person's record may be the result of identity theft, deception, or mistake, the court may set the matter for hearing not later than thirty (30) days later. If the court finds that the charge, arrest, or conviction is the result of identity theft, deception, or mistake, the court shall order the state police department and every law enforcement agency having records related to the arrest to expunge these records.
     (d) A petition for expungement of records under subsection (b) 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) (e) A copy of the petition described in subsection (b) shall be served on the law enforcement agency and the state central repository for records.
    (d) (f) Upon receipt of a petition for expungement under subsection (b), 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) (g) 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) (h) After a hearing is held under this section, the petition shall be granted unless the court finds:
        (1) the conditions in subsection (a) (b) have not been met; or
        (2) the individual has a record of arrests other than minor traffic offenses; or
        (3) (2) additional criminal charges are pending against the individual.
SOURCE: IC 35-38-5-5; (11)IN0392.1.2. -->     SECTION 2. IC 35-38-5-5, AS AMENDED BY P.L.2-2005, SECTION 124, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: 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 a law enforcement agency shall not release limited criminal history to noncriminal justice agencies under IC 10-13-3-27.

SOURCE: IC 35-38-5-6; (11)IN0392.1.3. -->     SECTION 3. IC 35-38-5-6 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 6. A law enforcement officer or an employee of a law enforcement agency who recklessly, knowingly, or intentionally violates this chapter commits a Class B misdemeanor.