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Attorneys Marc Lopez and Zac Bailey recently broke down the Indiana Supreme Court’s brand new decision on expungement petitions, including what it means and why it matters. What follows is a lightly edited transcript of their conversation.
Marc Lopez
Hey, Zac, this past week, there was a huge case on expungement decided by the Indiana Supreme Court. As you and I both know, expungement law is still kind of new, and to see an opinion by the Indiana Supreme Court is huge.
To my knowledge, there are only two or three expungement cases that have been decided by the Indiana Supreme Court, so this definitely got our attention.
Zac, walk us through the case.
Zac Bailey
The Supreme Court was trying to figure out whether certain cases are eligible for expungement. Serious cases that involve sexual or violent offenses may not be eligible for expungement.
So the person in this case, he was charged with a series of crimes, and some of them involved serious bodily injury, but the charge that he was ultimately convicted of was burglary, which does not involve serious bodily injury at all. The lower court held—and the reason they denied the expungement was—that the conviction was ineligible because serious bodily injury was involved. It was in the facts of the case.
So the question that the Supreme Court had to decide then was whether or not a case that involves serious bodily injury could be expunged, even if the person wasn’t convicted of a crime involving serious bodily injury. Does that make sense?
Marc Lopez
It does. You and I have both been prosecutors, and we’ve seen cases where there’s like 10, 20 charges. Boone County—we love them up there, but even on DUIs, they charge ten different things.
Just because someone’s charged with something doesn’t mean they’re convicted. If you go to trial and you win, you walk away. But with a plea agreement, you can say, There are 10 charges here and we’ll plead guilty to one.
And just like you said, even though the underlying case involved serious bodily injury, what he pled guilty to did not. When I read the case, I got the idea that the trial judge and the prosecutor both thought, Even if he deserves the expungement, the case involved serious bodily injury, so we can’t do it.
The reason you and I are confused about this is because the Supreme Court was confused. Am I right? Tell us more about that.
Zac Bailey
They read the statute, and they went word-by-word to try and figure out how restrictive the law was. But what they eventually decided is the person wasn’t convicted of a felony that resulted in serious bodily injury to another person.
They really hung on the word that and used it to show that even though this person was convicted of a major felony in this case—a very serious crime—the crime that he was actually convicted of did not include serious bodily injury. For that reason, he wasn’t automatically disqualified from getting an expungement.
Now it’s still what they call a permissive expungement. The court doesn’t have to grant it, but he’s not automatically disqualified.
Marc Lopez
I don’t want everybody watching this thinking that every expungement is this complicated—it’s not. Most expungements for misdemeanors and lower-level felonies that didn’t involve violence—those are going to get expunged. What we’re talking about now is permissive expungements. Give us an idea of what a permissive expungement is.
Zac Bailey
A permissive expungement is for higher-level felonies that don’t allow for automatic expungements. It’s a higher-level crime, so the court has the opportunity to give you an expungement on it, but they don’t have to.
The burden falls on the petitioner to show that they’re deserving of the expungement, that they’re turning their life around, that they’ve stayed out of trouble—and it’s tough to get to that point. You have to go a long time without getting in any trouble before you’re eligible to expunge one of these higher level crimes.
Marc Lopez
One of the things that I like about this opinion is the Supreme Court kind of gave us an idea of the things that they want to see when someone’s filing for these permissive expungements. So what are the things that we want to include when our clients are filing permissive expungements?
Zac Bailey
We want to show that you’re involved with your family and—if you’re a parent—what you’re doing with your kids. The kind of stuff that shows responsibility. We want to show that you’re working hard and that you’re a productive member of society and that getting this expunged is only going to help.
Marc Lopez
In this case, the guy had letters from friends, employers—I think the victim even suggested he should be getting a second chance. Expungement’s amazing because once it’s expunged, it’s as if you’ve never been convicted.
That opens up a lot of opportunities, and you can say that you’ve never been convicted on job applications, licensing applications—it truly opens up a lot of opportunities for anybody.
This is a giant ray of sunshine for anybody who’s been convicted of a crime that wants to move on to the next part of their life.
Zac, any final words on this amazing decision from the Indiana Supreme Court?
Zac Bailey
We appreciate the Supreme Court for coming out the way they did. They went into a lot of detail about how expungements are created for people to help get their lives together and to help create a second chance, and for that reason, the law should be interpreted in a way that gives them more opportunities.
They came down in a way that I think supports that idea, and I think it’s pretty cool.
Marc Lopez
Do you guys have any questions about expungements? Give us a call 317-632-3642. We love helping people put the past behind them. You have a great day.
