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Sec. 1 . (a) This section applies only to a person who has been arrested, charged with an offense, or alleged to be a delinquent child, if:
(1) the arrest, criminal charge, or juvenile delinquency allegation:
(A) did not result in a conviction or juvenile adjudication; or
(B) resulted in a conviction or juvenile adjudication and the conviction or adjudication was expunged under sections 2 through 5 of this chapter, or was later vacated; and
(2) the person is not currently participating in a pretrial diversion program.
(b) Not earlier than one (1) year after the date of arrest, criminal charge, or juvenile delinquency allegation (whichever is later), if the person was not convicted or adjudicated a delinquent child, or the opinion vacating the conviction or adjudication becomes final, the person may petition the court for expungement of the records related to the arrest, criminal charge, or juvenile delinquency allegation. However, a person may petition the court for expungement at an earlier time if the prosecuting attorney agrees in writing to an earlier time.
(c) A petition for expungement of records must be verified and filed in a circuit or superior court in the county where the criminal charges or juvenile delinquency allegation was filed, or if no criminal charges or juvenile delinquency allegation was filed, in the county where the arrest occurred. The petition must set forth:
(1) the date of the arrest, criminal charges, or juvenile delinquency allegation, and conviction (if applicable);
(2) the county in which the arrest occurred, the county in which the information or indictment was filed, and the county in which the juvenile delinquency allegation was filed, if applicable;
(3) the law enforcement agency employing the arresting officer, if known;
(4) the court in which the criminal charges or juvenile delinquency allegation was filed, if applicable;
(5) any other known identifying information, such as:
(A) the name of the arresting officer;
(B) case number or court cause number;
(C) any aliases or other names used by the petitioner;
(D) the petitioner's driver's license number; and
(E) a list of each criminal charge and its disposition, if applicable;
(6) the date of the petitioner's birth; and
(7) the petitioner's Social Security number.
A person who files a petition under this section is not required to pay a filing fee.
(d) The court shall serve a copy of the petition on the prosecuting attorney.
(e) Upon receipt of a petition for expungement, the court:
(1) may summarily deny the petition if the petition does not meet the requirements of this section, or if the statements contained in the petition indicate that the petitioner is not entitled to relief; and
(2) shall grant the petition unless:
(A) the conditions described in subsection (a) have not been met; or
(B) criminal charges are pending against the person.
(f) Whenever the petition of a person under this section is granted:
(1) no information concerning the arrest, criminal charges, juvenile delinquency allegation, vacated conviction, or vacated juvenile delinquency adjudication (including information from a collateral action that identifies the petitioner), 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;
(2) the clerk of the supreme court shall seal or redact any records in the clerk's possession that relate to the arrest, criminal charges, juvenile delinquency allegation, vacated conviction, or vacated juvenile delinquency adjudication;
(3) the records of:
(A) the sentencing court;
(B) a court that conducted a collateral action;
(C) a juvenile court;
(D) a court of appeals; and
(E) the supreme court;
concerning the person shall be redacted or permanently sealed; and
(4) with respect to the records of a person who is named as an appellant or an appellee in an opinion or memorandum decision by the supreme court or the court of appeals, or who is identified in a collateral action, the court shall:
(A) redact the opinion or memorandum decision as it appears on the computer gateway administered by the office of technology so that it does not include the petitioner's name (in the same manner that opinions involving juveniles are redacted); and
(B) provide a redacted copy of the opinion to any publisher or organization to whom the opinion or memorandum decision is provided after the date of the order of expungement.
The supreme court and the court of appeals are not required to redact, destroy, or otherwise dispose of any existing copy of an opinion or memorandum decision that includes the petitioner's name.
(g) If the court issues an order granting a petition for expungement under this section, the order must include the information described in subsection (c).
(h) If a person whose records are expunged brings an action that might be defended with the contents of the expunged records, the defendant is presumed to have a complete defense to the action. In order for the plaintiff to recover, the plaintiff must show that the contents of the expunged records would not exonerate the defendant. The plaintiff may be required to state under oath whether the plaintiff 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.
Cite this article: FindLaw.com - Indiana Code Title 35. Criminal Law and Procedure § 35-38-9-1 - last updated June 08, 2021 | https://codes.findlaw.com/in/title-35-criminal-law-and-procedure/in-code-sect-35-38-9-1.html
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