CHAPTER 5. EXPUNGEMENT OF ARREST RECORDS
IC 35-38-5
Chapter 5. Expungement of Arrest Records
IC 35-38-5-1
Petition; grounds; verification; filing; contents; service; notice ofopposition; hearing
Sec. 1. (a) Whenever:
(1) an individual is arrested but no criminal charges are filedagainst the individual; or
(2) all criminal charges filed against an individual are droppedbecause:
(A) of a mistaken identity;
(B) no offense was in fact committed; or
(C) there was an absence of probable cause;
the individual may petition the court for expungement of the recordsrelated to the arrest.
(b) A petition for expungement of records must be verified andfiled in the court in which the charges were filed, or if no criminalcharges were filed, in a court with criminal jurisdiction in the countywhere 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 nameof 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) A copy of the petition shall be served on the law enforcementagency and the state central repository for records.
(d) Upon receipt of a petition for expungement, the lawenforcement agency shall notify the court of the name and address ofeach agency to which any records related to the arrest wereforwarded. The clerk shall immediately send a copy of the petitionto each of those agencies. Any agency desiring to oppose theexpungement shall file a notice of opposition with the court settingforth reasons for resisting the expungement along with any swornstatements from individuals who represent the agency that explainthe reasons for resisting the expungement within thirty (30) daysafter the petition is filed. A copy of the notice of opposition andcopies of any sworn statements shall be served on the petitioner inaccordance 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 statementssubmitted by individuals who represent an agency, thepetitioner is not entitled to an expungement of records.
(e) If a notice of opposition is filed and the court does notsummarily grant or summarily deny the petition, the court shall set
the matter for a hearing.
(f) After a hearing is held under this section, the petition shall begranted unless the court finds:
(1) the conditions in subsection (a) have not been met;
(2) the individual has a record of arrests other than minor trafficoffenses; or
(3) additional criminal charges are pending against theindividual.
As added by P.L.311-1983, SEC.3. Amended by P.L.295-1989,SEC.1; P.L.159-1994, SEC.1.
IC 35-38-5-2
Delivery of records to individual or destruction
Sec. 2. If the petition for expungement is granted, the lawenforcement agency shall within thirty (30) days of receipt of thecourt order, deliver to the individual or destroy all fingerprints,photographs, or arrest records in their possession.
As added by P.L.311-1983, SEC.3.
IC 35-38-5-3
Effect of grant of petition
Sec. 3. Whenever the petition of an individual under section 1 ofthis chapter is granted, no information concerning the arrest may beplaced or retained in any state central repository for criminal historyinformation or in any other alphabetically arranged criminal historyinformation system maintained by a local, regional, or statewide lawenforcement agency. However, this chapter does not require anychange 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 whichthe criminal charges were filed.
As added by P.L.311-1983, SEC.3.
IC 35-38-5-4
Action by person whose records are expunged that might bedefended with contents of such records
Sec. 4. If a person whose records are expunged brings an actionthat might be defended with the contents of such records, thedefendant is presumed to have a complete defense to such an action.In order for the plaintiff to recover, he must show that the contentsof the expunged records would not exonerate the defendant. Theplaintiff may be required to state under oath whether he had recordsin the criminal justice system and whether those records wereexpunged. If the plaintiff denies the existence of the records, thedefendant may prove their existence in any manner compatible withthe law of evidence.
As added by P.L.311-1983, SEC.3.
IC 35-38-5-5
Petition to limit access to limited criminal history of persondischarged from probation, imprisonment, or parole Sec. 5. (a) This section does not apply to a request to a lawenforcement agency for the release or inspection of a limitedcriminal history to a noncriminal justice organization or individualwhenever the subject of the request is described inIC 10-13-3-27(a)(8) or IC 10-13-3-27(a)(12).
(b) A person may petition the state police department to limitaccess to the person's limited criminal history to criminal justiceagencies if more than fifteen (15) years have elapsed since the datethe 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 policedepartment shall not release limited criminal history to noncriminaljustice agencies under IC 10-13-3-27.
As added by P.L.311-1983, SEC.3. Amended by P.L.56-1998,SEC.18; P.L.10-1999, SEC.3; P.L.2-2003, SEC.92; P.L.2-2005,SEC.124.
IC 35-38-5-6
Violation of chapter
Sec. 6. A law enforcement officer who violates this chaptercommits a Class B misdemeanor.
As added by P.L.311-1983, SEC.3.