Expungement is the legal process in which an individual’s criminal record is erased; albeit, with certain exceptions. In Indiana, individuals who have committed certain crimes have the ability to seek an expungement of their criminal record. Obtaining an expungement is an extremely beneficial tool for individuals with past convictions or arrests as it provides a chance to move forward in life without the attached stigma that tends to follow criminal convictions. But, what happens if the court denies your request for expungement? Can you appeal? In this blog, we try to provide insight into the expungement process while looking at potential remedies in the event your expungement request was denied.
The process for obtaining an expungement is codified in statutory code sections 35-38-9 et. al. Precedent dictates that, because the expungement statutes are inherently remedial, such should be liberally construed to advance the purpose of the expungement statutes (i.e., granting individuals a fresh start). As our Indiana Courts have recognized, “[t]hrough the expungement statutes, the legislature intended to give individuals . . . a second chance.”1
However, while the expungement statutes are liberally construed in favor of granting relief to qualifying individuals, not every individual is entitled to an expungement. That is, certain crimes, such as murder and sex offenses, are crimes that do not qualify for expungement.2 Moreover, the expungement statutes are divided into what are referred to as discretionary expungements and non-discretionary expungements. In non-discretionary expungements, so long as the individual meets all statutory requirements, the trial court has no discretion to deny an individual’s request for expungement. On the other hand, in discretionary expungements, a trial court has the ability to deny a request for expungement, even if the individual meets all statutory requirements.3
Even while Courts tend to look favorably towards individuals who meet all necessary requirements for expungements, mistakes are still made, and individuals who should have received an expungement are nevertheless denied. However, if you are denied an expungement of your criminal records, there is relief available. That is, a denial of a petition for expungement is considered an appealable final order.4 Thus, there is still relief available for you in the appellate courts even if you get denied. For example, in a recent decision by the Indiana Supreme Court, the Court held that the trial court abused its discretion in denying an individual’s request for an expungement, even though it was considered a discretionary expungement.5
Expungement cases are often complex matters. They often times turn on extremely fact-sensitive scenarios, making a generalized remedy nearly impossible to provide. Having a skilled attorney who is experienced in expungements and appellate work is critical. This blog post was written by attorneys at Dixon & Moseley, P.C. who handle all types of expungements and appeals, be it civil or criminal, throughout Indiana. This blog is intended for general educational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.