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Expunge law causes court headaches

Officials raise concerns over confusing statute

– Since July 1, Hoosiers with certain felony convictions can petition the court to have the records of those convictions and the initial arrests expunged – but such petitions are available only to some by a court order.

And Allen County is starting to see a few requests trickle in.

But Superior Court Judge Fran Gull urges those who want to see their convictions disappear to consult a lawyer before they try to engage in the process.

And she worries about the confusion written into the new state law.

Under the terms of the new law, most sex or violent offenders, as well as those convicted of a charge related to homicide, are not eligible to have their records cleared.

Other crimes, however, such as battery and operating a motor vehicle while intoxicated causing death, are eligible, as are crimes such as theft and forgery. While the law doesn’t erase convictions, it does make the information unavailable to potential employers.

Courts around the state had just gotten a handle on a 2011 law that allowed certain convictions to be shielded from public view.

That was a straightforward statute, Gull said.

That law granted those who committed misdemeanors or Class D felonies that did not result in injury to request restricted access to their records, as long as they had remained felony-free for eight years and finished their sentences.

The new law, though, is neither well-written nor user-friendly, Gull said.

And those who want to use it have only one chance in their lifetimes, so if a petition goes nowhere or is done improperly, that’s it, she said.

Allen County Chief Deputy Prosecutor Michael McAlexander agreed. “They get one shot at this,” he said.

If people are 21 or 22 years old, they may want to rethink filing such a petition in case they get in trouble in the future, he said.

The complicated statute has separate sections for felonies reduced to misdemeanors, Class D felonies, more serious felonies that did not result in injuries, and other areas, McAlexander said.

“For every person you have, you will have to take a good look,” he said.

When a court grants a request that a record be expunged, it is the court’s responsibility to contact every legal entity the case touched.

This includes court files, the Bureau of Motor Vehicles, any organization or agency that provided treatment or services in connection with the case and the state police.

The law does nothing, however, to deal with information available in the media or elsewhere in the public domain.

So far, there have been requests made in each Allen County criminal division judges’ office and in the misdemeanor and traffic divisions, Gull said.

The Allen County Prosecutor’s Office will check each request to satisfy that the defendant has met all the requirements under the law, McAlexander said.

“We anticipate it will take, potentially, a lot more work,” he said.

If people who have had their records sealed commit a crime in the future, the information about the expunged crime will be available for use in sentencing, McAlexander said.

Although the requests are filed as a civil matter, they will ultimately be sent back to the original sentencing judge for review.

According to McAlexander, that causes its own headache in Allen County, where there are separate criminal and civil divisions.

If the law needs reworking or some adjustments, McAlexander believes the legislature will be able to come back and do it in the next session.

When the law was passed, legislators said they wanted to give those who have fulfilled their sentences and reformed their lives an opportunity for redemption.

Gull acknowledges the intent behind the law is noble.

But the way it is written, she said, it is going to be a beast to enforce without a framework in place to process the requests.

“My goodness, it sure isn’t going to be easy,” she added.

rgreen@jg.net

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