Expungement / Record Sealing Petition and Eligibility Memo — Indiana

Indiana Expungement and Record-Sealing Eligibility Memo

Applicant: [________________________________]

Prepared by: [________________________________]

Date: [__/__/____]

Question presented

Which Indiana records qualify under Indiana Code chapter 35-38-9, which procedure applies, and will the records be sealed from public access or remain public with an expungement notation?

Short answer

Indiana uses five categories. Section 1 covers automatic and petition-based relief for arrests, nonconvictions, and vacated convictions. Sections 2 and 3 cover misdemeanors and qualifying Class D/Level 6 felonies; granted records are permanently sealed from public access. Sections 4 and 5 cover eligible remaining felonies; those records remain public but must be clearly marked expunged. Sections 2 and 3 are mandatory when every requirement is proved. Sections 4 and 5 are discretionary, and Section 5 also requires written prosecutorial consent.

The existing record is not destroyed. Indiana's statute restricts use and disclosure, and § 35-38-9-0.6 leaves specified nonpublic internal, diversion, disciplinary, and commercial-driver records unaltered.

1. Current five-category map

The prosecuting attorney may agree in writing to a shorter statutory wait. For a felony converted to a misdemeanor, the Section 2 wait runs from the original felony conviction date, not the later conversion date.

2. Section 1: automatic and petition-based nonconviction relief

Automatic orders

Under the current § 35-38-9-1(b), the court automatically orders expungement when all filed charges are dismissed, the defendant is acquitted of all charges, or a conviction is vacated, and in the statute's juvenile nonprosecution circumstances. An order based on dismissal or acquittal ordinarily may not take effect before 60 days after disposition. On the prosecutor's motion and specified findings, implementation may be delayed for up to one year. The separate nonprosecution order takes effect immediately.

Petitions

A person arrested without charges may petition after one year from arrest if no charge is pending. The traditional petition route for a nonconviction uses one year from the later of arrest or charge; a vacated conviction uses one year from the date the vacating opinion becomes final. The prosecutor may agree in writing to an earlier filing.

A person currently in pretrial diversion or deferral needs prosecutorial authorization to petition. A Section 1 petition is filed where the charge was filed or, if no charge was filed, in a court exercising criminal jurisdiction in the arrest county. No filing fee applies. The court serves the prosecutor.

Section 1 petitions are not subject to the one-lifetime-petition limit.

3. Conviction eligibility

Common proof

For a petition under §§ 35-38-9-2 through -5, the applicant generally must prove by a preponderance of the evidence that:

• the applicable wait has elapsed;
• no criminal investigation or charge is pending;
• all fines, fees, and court costs are paid and restitution is satisfied; and
• no new crime was committed during the applicable statutory period.

The current Indiana Office of Court Services guidance notes that successful completion of the sentence and supervised release is no longer a separate eligibility element for Sections 2 through 5, although the Section 4 and 5 filing dates still expressly use sentence completion.

Mandatory and discretionary categories

If all conditions are met, the court must grant a Section 2 or Section 3 petition. The court retains discretion under Sections 4 and 5 even after the applicant proves the listed conditions. Section 5 cannot be granted without the prosecutor's written consent.

Whether bodily injury, serious bodily injury, or death matters turns on the elements of the offense of conviction. The facts surrounding the offense may still inform the court's discretion for Sections 4 and 5.

4. Exclusions

The exclusions are category-specific.

For a misdemeanor or converted-felony petition under Section 2, the principal person-based bars are:

• sex-or-violent-offender status under Ind. Code § 11-8-8-5; and
• two or more felony offenses involving unlawful use of a deadly weapon that were not part of the same episode of criminal conduct.

Felony petitions have additional exclusions, including:

• a felony resulting in another person's death;
• homicide offenses or attempts;
• human or sexual trafficking offenses or attempts;
• sex-crime offenses or attempts;
• official misconduct, subject to the statute's narrow Section 5 treatment for a person who was not an elected official or elected or appointed judicial officer;
• unlawful possession of a firearm by a serious violent felon, subject to the Section 3 distinction stated in the statute; and
• the same sex-or-violent-offender and multiple-deadly-weapon-felony bars.

An elected official or elected or appointed judicial officer convicted of a qualifying offense while serving or campaigning, and a felony with a serious-bodily-injury element, are routed—if otherwise eligible—through Section 5 rather than Section 4. Compare the precise conviction and the applicant's full history with §§ 35-38-9-3(b), -4(b), and -5(b).

5. One lifetime conviction opportunity

Under § 35-38-9-9(i):

• all convictions in one county are consolidated in one petition;
• a separate consolidated petition is filed in each other county of conviction;
• multiple county petitions count as one petition only if filed within a single 365-day period; and
• outside statutory exceptions, the applicant receives one lifetime conviction-expungement opportunity.

If a petition is denied in whole or in part, the applicant may refile for a conviction included in the original petition. A court may allow a later supplement for an omitted conviction only after finding good-faith intent, excusable neglect or circumstances beyond the applicant's control, and the best interests of justice. See § 35-38-9-9(j)-(k).

This lifetime limit does not apply to Section 1 arrest/nonconviction petitions.

6. Petition contents and confidential information

Section 35-38-9-8(b) requires a conviction petition to include:

• full name and every other legal name or alias;
• birth date;
• addresses from the offense date through the petition date;
• case number, arrest date, conviction date, and available appeal information;
• a list of all past convictions and collateral actions;
• Social Security and driver's license numbers;
• affirmations regarding pending investigations or charges, later crimes, and the waiting period; and
• a description of other chapter 35-38-9 petitions.

Because the petition requires a Social Security number, follow Access to Court Records Rule 5 by filing protected information confidentially, filing a public redacted version, and submitting Form ACR. Expungement matters use the XP case type under Administrative Rule 8(B)(3). The XP case remains public unless and until relief is granted; then § 35-38-9-10(i) makes it confidential.

7. Fees, service, response, and hearing

The court may grant without a hearing if the prosecutor does not object. For Sections 4 and 5, the prosecutor must notify a victim of statutory rights; a victim may submit an oral or written statement, and the petitioner has no right to cross-examine the victim. Section 5 requires written prosecutorial consent, but the court may still hold a hearing.

8. Effect of relief

Sections 1 through 3

The records are sealed or redacted from public access, not destroyed. Sections 2 and 3 use the permanent-sealing rules in § 35-38-9-6, with statutory access for specified criminal-justice, federal, licensing, school, commercial-driver, and other purposes.

Sections 4 and 5

The underlying criminal case remains a public record but is clearly and visibly marked expunged under § 35-38-9-7. The separate XP petition case becomes confidential when granted.

Rights and later use

Section 35-38-9-10 restores specified civil rights and prohibits many forms of discrimination based on an expunged record. The statute also preserves specified uses in a later criminal case. Expungement does not itself restore firearm rights lost through a domestic-violence conviction, does not affect an existing or pending driver's-license suspension, and does not erase underlying facts or preexisting disciplinary records.

9. Collateral actions

A “collateral action” includes a factually or legally related administrative or judicial action, such as seizure, civil forfeiture, or specialized-driving-privilege proceedings. After the underlying expungement order, § 35-38-9-9.5 permits a separate request in the county where the collateral action occurred. No filing fee applies. The court may grant without a hearing if the record conclusively establishes entitlement; otherwise it notifies the prosecutor and sets a hearing.

10. Applicant analysis

11. Filing checklist

☐ Obtain a complete statewide criminal-history record before the first conviction petition.

☐ Identify every conviction and collateral action in every county.

☐ Confirm the offense elements and the correct Section 2, 3, 4, or 5 route.

☐ Calculate both conviction-date and sentence-completion waits where applicable.

☐ Confirm fines, fees, costs, and restitution status.

☐ Confirm no pending investigation or charge and no disqualifying later crime.

☐ Coordinate all county petitions inside the same 365-day period.

☐ Prepare confidential and redacted versions with Form ACR.

☐ Serve the prosecutor for conviction petitions and calendar the 30-day response period.

☐ Prepare an order with all identifiers and distribution recipients required by the selected category.

Sources and References

• Indiana Office of Court Services — Detailed Information on Criminal Case Expungement (updated July 1, 2026)
• Indiana Office of Court Services — The “Expungement” Statutes (updated July 1, 2026)
• Indiana Office of Court Services — Digest on Orders (updated July 1, 2026)