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Commonly Asked Questions on Expungement - Criminal Justice News

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Criminal Justice News


Posted on: Mar 1, 2021

Is Expungement a civil proceeding or a criminal proceeding?

  • Expungement is a civil proceeding and is governed by the Indiana Rules of Civil Procedure. The Petitioner initiates the process. The Prosecutor responds to the petition as required by statute.

Why do some Petitions not reach the Prosecutor even though I followed the electronic filing protocols and served the Prosecutor’s office at the e-mail address listed?

  • Since this is a civil matter, the Prosecutor is not automatically considered a party to the case until he is served. 
  • There have been incidents where the Prosecutor does not receive service. This often happens when a Petition or a part of a Petition is marked as confidential.

What can be done to ensure that the Prosecutor receives service?

  • When you file an Expungement Petition in Marion County, please remember to also serve or send a courtesy copy of the Petition and Proposed order to MCPOExpungement@indy.gov.

Why should I file a copy of the Proposed Order before the Expungement Petition is granted?

  • In Marion County, the Courts require that the Petitioner file the Proposed Order when the Petition is filed so that the Court and the Prosecutor can review the Proposed Order to ensure that it follows the statutory requirements.

What are the duties of the Prosecutor?

  • Statute requires that the Prosecutor respond to the Expungement Petition within 30 days after receipt of the petition. However, under the civil rules and local rules, the state is entitled to an additional 30 days to respond upon petitioning the court.
  • The State must contact victims of any conviction, if the decision to grant or deny expungement for a conviction is discretionary with the court.
  • The State can object for cause for any conviction where the court has the discretion to grant or deny expungement.
  • Statute gives the state the sole authority to consent to the filing of a petition earlier than permitted by statute or consent to a filing for expungement of a conviction defined in IC35-38-9-5.
  • In Marion County, the state does inform the court and the Petitioner if there are any technical problems in the Petition or Proposed order. 

What is a technical problem and will that technical problem be waived if the Prosecutor does not respond to it within the time required by statute?

  • A technical problem occurs when the Petition or Proposed Order is not in compliance with the requirements of statute.  
  • The Prosecutor does not object to technical problems, he only brings to the attention of the Petitioner that the Expungement statute will not permit the court to find by a preponderance of the evidence that expungement can be granted because of the technical problem. 
  • Even if the Prosecutor does not mention in his response a technical problem, that does not waive or cure the technical problem.

Why doesn’t the Prosecutor negotiate or agree to settle issues involving unpaid fines, costs, fees and/or restitution in the expungement case? 

  • The court under the Expungement cause does not take jurisdiction of the criminal cases Unpaid fines, costs, fees and/or restitution in the criminal case which are the subject of expungement can only be reviewed under the criminal cause number where these Court ordered the obligations. The Prosecutor has no authority to negotiate this matter in the civil Expungement filing.

Why can’t Petitions for Expungement under IC 35-38-9-1 (dismissals) be filed in the Expungement Petition for convictions? 

  • The requirements for a Petition and for the Proposed Order under IC 35-38-9-1 (dismissals) are restricted to IC 35-38-9-1. 
  • All the other sections of statute beginning with IC 35-38-9-2 specifically apply only to Expungement Petitions for convictions. This includes what must be in a Petition for Expungement for convictions, what is and is not eligible for expungement, and what must be in an order for expungement.

Requesting consent to file for expungement earlier than permitted by statute in Marion County

Requests for Consent to File for Expungement of Convictions Early Than Permitted by Statute
To request consent to file for expungement of convictions in Marion County earlier than permitted by statute, you must provide the following information: 

  • List of all your convictions in Marion County, in other Indiana counties outside of Marion County and/or in other states.
  • Proof that all court ordered fines, costs, fees and/or restitution for each conviction listed are no longer owed.
  • A copy of the proposed expungement petition that you would file if you get consent to file early. 
  • Letter from you that answers the following questions
    • If you entered a guilty plea, do you admit responsibility for your crime and do regret your behavior? 
    • If you were convicted at a trial, do you regret getting involved in the activities that led to your arrest?
    • How have you have turned your life around since your last conviction?
    • How would an early expungement benefit you?
  • (Optional) Any additional information such as letters of support may be included in your request for consent

This information should be sent electronically to MCPOExpungement@indy.gov or mailed to: Marion County Prosecutor, Attn: Expungement
251 E. Ohio Street, Indianapolis, IN 46204.

To Request Consent to File for Expungement of Dismissed Cases and/or a Case where All Counts were Not Guilty

To request consent to file for expungement earlier than permitted by statute of dismissed cases or where all counts were Not Guilty in Marion County email MCOPExpungement@indy.gov after the dismissal of the entire case or a finding on not guilty on all counts. Provide the cause number of your case and the date the case was dismissed. 

You will receive a written response from this office.

MCPO will not consent to early filing for expungement of dismissed cases for Domestic Violence, Battery or Gun charges.

*If consent to file for expungement earlier than permitted by statute is granted, consent is only for cases in Marion County. It does NOT provide consent for cases in other jurisdictions.

This information was submitted by Andy Fogle, Marion County Prosecutor's Office. If you would like to submit content or write an article for the Criminal Justice Section, please email Kara Sikorski at ksikorski@indybar.org.

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