Indiana’s expungement laws offer a great opportunity for Hoosiers who are tired of being haunted by past convictions. But what does the timeline look like? Attorney Marc Lopez turned to Attorney Zac Bailey for answers. What follows is a lightly edited transcript of their conversation.
Marc Lopez
People want to get their record cleaned up as fast as possible, so I have Zac with me, and he’s the law firm guru on expungement. Zac, you’ve been doing these for about two years now. Walk us through how long an expungement takes.
Zac Bailey
From the time we’re hired to the time we file it—we’re usually looking at a little bit under a month. It takes us a few weeks to gather all the information, and then we send it to the client for review. If everything is correct, then we file. So about a month to get the paperwork filed.
Marc Lopez
That may sound like a long time, but it’s super important that we get everything right. If you mess up the details of an expungement, it can lead to some devastating consequences.
Let’s get more specific. A single conviction—that’s not going to be the hardest thing in the world to expunge. In your experience, what are some of the factors that can slow down the expungement process?
Zac Bailey
If we’re talking about a typical misdemeanor or low-level felony expungement, we expect the non-discretionary ones to be granted, but the process can still get bogged down if you have multiple cases in multiple counties. That means we’ll have to file petitions in different courts, and some counties require a hearing, even for non-discretionary expungements. That can take a bit longer too.
Different counties are on different timelines. Hamilton County, for example, responds to expungement filings very quickly. Marion County does the best they can, but it takes a little bit longer in Marion than it does in other counties.
Marc Lopez
Indiana is one state with 92 counties, and every county has its own way of doing things. Each judge is truly in charge of their own court.
What are some of the issues we run into with older cases? I’m talking about people who are trying to expunge convictions from the ’80s or ’90s. What are some of the obstacles?
Zac Bailey
Basically, we can’t find the information as easily. Records started going digital pretty recently, and the MyCase system is great, but I believe it only goes back to the early 2000s. That means there are a lot of cases with no electronic trail. So we have to go to an old records sort of place, track down the paper records, and make sure we’re getting anything and everything that’s in this person’s criminal history.
Marc Lopez
One of the rules is that you have to file all of your expungement petitions within 365 days, so we never want to rush a client into the process before everything is in order. If you screw up the expungement, that’s that.
Zac Bailey
That’s so important. If we get an expungement granted, and then a couple of years down the line, we realize that we missed a conviction—it’s too late. You’re eligible for one expungement in your lifetime, so we have to make sure we file a timely petition in every relevant county.
Marc Lopez
Once we file the expungement petition, what’s the typical response from the State?
Zac Bailey
The State has 30 days to respond. If they ask for an extension, that’ll get granted—that’s just how it goes. We see that in Marion County more than anywhere else. This gives them one-to-two months to respond to our expungement petition and make sure they have no grounds to object to it.
Marc Lopez
I know for clients it can be frustrating waiting on the State to respond, particularly when it’s a non-discretionary expungement. But I can think of a couple instances where a client told us about their convictions, and the State ended up finding an extra one. That’s not sabotage—it’s due diligence.
Zac, we’ve been talking about non-discretionary expungements, but what about the discretionary kind? Do those require a hearing?
Zac Bailey
Yes, the more serious the crime, the more likely it is to require a hearing.
Marc Lopez
Give us a rundown on the timeline.
Zac Bailey
A non-discretionary expungement petition will get set for a hearing where both sides make an argument as to what they think is appropriate. Obviously we think an expungement is appropriate and the prosecutor may agree, but it’s ultimately going to be up to the judge. Some cases even provide for the victim to have some say in the process.
Just like with criminal cases these hearings aren’t set immediately. They’re set out a month or two, or however it fits into the court’s calendar. So it takes longer for the more serious offenses.
Marc Lopez
And we’re not just walking into the hearing and saying, We’re here for the expungement. Typically we’re preparing memorandums of support—why the person qualifies, why the judge should give them an expungement—so this can be pretty frustrating for the client who’s trying to get expunged as fast as possible.
Realistically, though, we don’t want a situation where a judge schedules a five-minute hearing for a major felony expungement, because we’re not going to be able to present all of our evidence in that amount of time. So we know it’s frustrating, but it takes patience to do this right.
Zac—any parting thoughts?
Zac Bailey
A lot of times we’ll have somebody call and say, hey I’m going to a job interview next week and I need a clean record for this job. And as much as we’d love to make that happen that’s not enough time.
Give us a call as soon as you think you might be eligible so that we can have this prepared and ready to go. That way, when opportunity comes knocking, you’ll be all set with a clear record. The more time we have, the better.
Marc Lopez
If you have any questions, give us a call 317-632-3642, and remember—always plead the 5th!