Be it enacted by the General Assembly of the State of Indiana:
disclose or permit disclosure of information related to the
infraction to a noncriminal justice organization or an individual.
(b) If a court fails to order the court to restrict information
related to the infraction under subsection (a), the person may
petition the court to restrict disclosure of the records related to the
infraction to a noncriminal justice organization or an individual.
(c) A petition under subsection (b) must be verified and filed in:
(1) the court in which the action was filed, for a person
described in subsection (a)(1); or
(2) the court in which the trial was held, for a person
described in subsection (a)(2) or (a)(3).
(d) A petition under subsection (b) must be filed not earlier
than:
(1) if the person is adjudged to have not committed the
infraction, thirty (30) days after the date of judgment;
(2) if the person's adjudication is vacated, three hundred
sixty-five (365) days after:
(A) the order vacating the adjudication is final, if there is
no appeal or the appeal is terminated before entry of an
opinion or memorandum decision; or
(B) the opinion or memorandum decision vacating the
adjudication is certified; or
(3) if the person is not prosecuted or the action is dismissed,
thirty (30) days after the action is dismissed, if a new action is
not filed.
(e) A petition under subsection (b) must set forth:
(1) the date of the alleged violation;
(2) the violation;
(3) the date the action was dismissed, if applicable;
(4) the date of judgment, if applicable;
(5) the date the adjudication was vacated, if applicable;
(6) the basis on which the adjudication was vacated, if
applicable;
(7) the law enforcement agency employing the officer who
issued the complaint, if applicable;
(8) any other known identifying information, such as the name
of the officer, case number, or court cause number;
(9) the date of the petitioner's birth; and
(10) the petitioner's Social Security number.
(f) A copy of a petition under subsection (b) shall be served on
the prosecuting attorney.
(g) If the prosecuting attorney wishes to oppose a petition under
subsection (b), the prosecuting attorney shall, not later than thirty
(30) days after the petition is filed, file a notice of opposition with
the court setting forth reasons for opposing the petition. The
prosecuting attorney shall attach to the notice of opposition a
certified copy of any documentary evidence showing that the
petitioner is not entitled to relief. A copy of the notice of opposition
and copies of any documentary evidence shall be served on the
petitioner in accordance with the Indiana Rules of Trial Procedure.
The court may:
(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 documentary evidence submitted by the
prosecuting attorney, the petitioner is not entitled to have
access to the petitioner's records restricted.
(h) If a notice of opposition is filed under subsection (g) and the
court does not summarily grant or summarily deny the petition,
the court shall set the matter for a hearing.
(i) After a hearing is held under subsection (h), the court shall
grant the petition filed under subsection (b) if the person is entitled
to relief under subsection (a).
(j) If the court grants a petition filed under subsection (b), the
court shall order the clerk not to disclose or permit disclosure of
information related to the infraction to a noncriminal justice
organization or an individual.
SECTION 3. IC 34-28-5-16 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2012]: Sec. 16. (a) This chapter applies only to a person found to
have committed an infraction.
(b) Five (5) years after the date a person satisfies a judgment
imposed on a person for the violation of an infraction, the clerk of
the court shall prohibit the disclosure of information related to the
infraction to a noncriminal justice organization or an individual.
(c) If a person whose records are restricted under this section
brings a civil action that might be defended with the contents of the
records, the defendant is presumed to have a complete defense to
the action.
(d) For the plaintiff to recover in an action described in
subsection (c), the plaintiff must show that the contents of the
restricted records would not exonerate the defendant.
(e) In an action described in subsection (c), the plaintiff may be
required to state under oath whether the disclosure of records
relating to an infraction has been restricted.
(f) In an action described in subsection (c), if the plaintiff denies
the existence of the records, the defendant may prove the existence
of the records in any manner compatible with the law of evidence.
(g) A person whose records have been restricted under this
section may legally state on an application for employment or any
other document that the person has not been adjudicated to have
committed the infraction recorded in the restricted records.
SECTION 4. IC 35-38-8-7, AS ADDED BY P.L.194-2011,
SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Sec. 7. (a) If a court orders a person's records to be
restricted under this chapter, the person may legally state on an
application for employment or any other document that the person has
not been arrested for or convicted of the felony or misdemeanor
recorded in the restricted records.
(b) An employer may not ask an employee, contract employee,
or applicant whether the person's criminal records have been
sealed or restricted. An employer who violates this subsection
commits a Class B infraction.
SECTION 5. IC 35-50-2-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2012]: Sec. 1. (a) As used in this
chapter, "Class D felony conviction" means a conviction of a Class D
felony in Indiana and a conviction, in any other jurisdiction at any time,
with respect to which the convicted person might have been imprisoned
for more than one (1) year. However, it does not include a conviction
with respect to which the person has been pardoned, or a conviction of
a Class A misdemeanor entered under IC 35-38-1-1.5 or section 7(b)
or 7(c) of this chapter.
(b) As used in this chapter, "felony conviction" means a conviction,
in any jurisdiction at any time, with respect to which the convicted
person might have been imprisoned for more than one (1) year.
However, it does not include a conviction with respect to which the
person has been pardoned, or a conviction of a Class A misdemeanor
under section 7(b) of this chapter.
(c) As used in this chapter, "minimum sentence" means:
(1) for murder, forty-five (45) years;
(2) for a Class A felony, twenty (20) years;
(3) for a Class B felony, six (6) years;
(4) for a Class C felony, two (2) years; and
(5) for a Class D felony, one-half (1/2) year.
SECTION 6. IC 35-50-2-7, AS AMENDED BY P.L.71-2005,
SECTION 10, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Sec. 7. (a) A person who commits a Class D felony
shall be imprisoned for a fixed term of between six (6) months and
three (3) years, with the advisory sentence being one and one-half (1
1/2) years. In addition, the person may be fined not more than ten
thousand dollars ($10,000).
(b) Notwithstanding subsection (a), if a person has committed a
Class D felony, the court may enter judgment of conviction of a Class
A misdemeanor and sentence accordingly. However, the court shall
enter a judgment of conviction of a Class D felony if:
(1) the court finds that:
(A) the person has committed a prior, unrelated felony for
which judgment was entered as a conviction of a Class A
misdemeanor; and
(B) the prior felony was committed less than three (3) years
before the second felony was committed;
(2) the offense is domestic battery as a Class D felony under
IC 35-42-2-1.3; or
(3) the offense is possession of child pornography
(IC 35-42-4-4(c)).
The court shall enter in the record, in detail, the reason for its action
whenever it exercises the power to enter judgment of conviction of a
Class A misdemeanor granted in this subsection.
(c) Notwithstanding subsection (a), the sentencing court may
convert a Class D felony conviction to a Class A misdemeanor
conviction if, after receiving a verified petition as described in
subsection (d) and after conducting a hearing of which the
prosecuting attorney has been notified, the court makes the
following findings:
(1) The person is not a sex or violent offender (as defined in
IC 11-8-8-5).
(2) The person was not convicted of a Class D felony that
resulted in bodily injury to another person.
(3) The person has not been convicted of perjury under
IC 35-44-2-1 or official misconduct under IC 35-44-1-2.
(4) At least three (3) years have passed since the person:
(A) completed the person's sentence; and
(B) satisfied any other obligation imposed on the person as
part of the sentence;
for the Class D felony.
(5) The person has not been convicted of a felony since the
person:
(A) completed the person's sentence; and
(B) satisfied any other obligation imposed on the person as
part of the sentence;
for the Class D felony.
(6) No criminal charges are pending against the person.
(d) A petition filed under subsection (c) must be verified and set
forth:
(1) the crime the person has been convicted of;
(2) the date of the conviction;
(3) the date the person completed the person's sentence;
(4) any obligations imposed on the person as part of the
sentence;
(5) the date the obligations were satisfied; and
(6) a verified statement that there are no criminal charges
pending against the person.
(e) If a person whose Class D felony conviction has been
converted to a Class A misdemeanor conviction under subsection
(c) is convicted of a felony within five (5) years after the conversion
under subsection (c), a prosecuting attorney may petition a court
to convert the person's Class A misdemeanor conviction back to a
Class D felony conviction.
SECTION 7. [EFFECTIVE JULY 1, 2012] (a) As used in this
SECTION, "legislative council" refers to the legislative council
established by IC 2-5-1.1-1.
(b) As used in this SECTION, "study committee" means either
of the following:
(1) A statutory committee established under IC 2-5.
(2) An interim study committee.
(c) The legislative council is urged to assign the following topics
to a study committee during the 2012 legislative interim:
(1) The provisions of IC 24-4-18, as added by this act,
concerning criminal history providers.
(2) The need for any legislation to amend IC 24-4-18, as added
by this act, concerning criminal history providers before
IC 24-4-18 takes effect on July 1, 2013.
(d) If the topics described in subsection (c) are assigned to a
study committee, the study committee shall issue a final report to
the legislative council containing the study committee's findings
and recommendations, including any recommended legislation
concerning the topics, in an electronic format under IC 5-14-6 not
later than November 1, 2012.
(e) This SECTION expires December 31, 2012.