The Primary Difference Between Expungement And Sealing Of Criminal Records

The Primary Difference Between Expungement And Sealing Of Criminal Records

January 15, 2015

What is the primary difference between an expungement and getting something sealed?

The law is not a true expungement, meaning that the conviction records are not destroyed. The records will still exist; they are only sealed. This means that no information concerning the conviction can be made accessible to the public.

There is a difference in how records are handled under Sections 4 and 5. If a petition for expungement under these sections is granted the court records and other public records relating to the arrest, conviction, or sentence will be marked or identified as expunged; however, these records will remain public records and will remain on public access. Therefore, the Indiana State Police, BMV, and any other law enforcement agency in possession of records that relate to the conviction that are ordered expunged shall add an entry to the person’s record of arrest, conviction, or sentence in the criminal history data base stating that the record is marked as expunged.

All the Records Pertaining to a Person’s Arrest or Conviction are Sealed in an Expungement

If the petitioner of the expungement is successful, the court must order the Department of Correction, the Bureau of Motor Vehicles, law enforcement agencies, or any other persons dealing with an arrest or providing services to the person under a court order from releasing any records relating to the person’s conviction. It also orders the Indiana State Police to seal the person’s conviction records and the records that are contained in their central repository for criminal history information. The order will notify the Clerk of the Indiana Supreme Court to seal the records that are in the Court’s possession that relate to the conviction. Further, it must order the records sealed for the sentencing courts or even the Indiana Court of Appeals if the conviction went up for appeal.

Restoration of Civil Rights

If the person’s conviction resulted in the loss of their right to vote, to hold public office, or serve as a juror, these rights must be restored.

An Expungement Can Help a Person to be Gainfully Employed in Indiana

Can you provide an example of how someone was trying to get a particular job and they got something expunged with that? Would an expungement help them from getting a job they previously couldn’t get because of something that showed up on their record?

Yes, it becomes unlawful discrimination for anyone to suspend, expel, refuse to employ, refuse to admit, refuse to grant or renew a license or permit needed to engage in any activity, occupation, or profession, or otherwise discriminate against anyone because of a conviction or arrest record that has been expunged or sealed. In applications for employment, a license, or any other right or privilege protected by this law, a person may lawfully ask the applicant, “Have you ever been arrested for or convicted of a crime that has not been expunged by a court?”

The Proper Manner to Disclose an Expunged Conviction to a Potential Employer

In a lot of different states, you can’t even expunge convictions, you can only expunge something that’s just a charge or an arrest and now in Indiana you can actually expunge convictions. How would someone phrase it to an employer to disclose it?

The person could simply say that they haven’t been arrested or convicted of a felony or misdemeanor. If the person is asked the question posed above, then they should answer truthfully.

Sometimes Expunged Records can be Accessed

Who has access to expunged records?

It depends on the type of record that has been expunged or sealed and who is requesting access to them. There are two records categories. Records category 1 are those in possession of the Indiana Department of Correction, the BMV, and any law enforcement agency or any other person or entity who incarcerated, provided treatment or other services for the person whose records were expunged. These records may be released only to a law enforcement officer acting in the course of their official duty. Otherwise, anyone attempting to access the records in this category must get a court order to do so.

Records category 2 are records collected in the Indiana State Police central repository. These records may be accessed by a prosecuting attorney, a defense attorney, or a probation department if needed to carry out their professional duties. These records can only be accessed pursuant to a court order.

Records category 3 are records possessed by the sentencing court, juvenile court, the Indiana Court of Appeals and the Indiana Supreme Court. These records are considered permanently sealed.

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