Wiping Clean Your Criminal Record

Christmas season is the appropriate time to remind everyone that the Indiana Legislature was in a giving mood in 2013.  Specifically, Indiana citizens were finally given the ability to wipe clean their criminal arrests and convictions.  Indiana's new expungement law allows you to expunge any and all misdemeanor convictions as long as 5 years have elapsed since your most recent conviction, you have no charges or investigations pending, and you have a valid drivers' license.  The most common crimes we have had expunged during the six months the new expungment law has been in effect are operating while intoxicated and possession of marijuana convictions.  Importantly, with regard to these two crimes, is the fact that the convictions will be removed from your BMV record.

Misdemeanors aren't the only convictions you can wipe off of your record.  Most D-felonies (think theft, narcotic possession, multiple offense OWIs) can be expunged as long as 8 years have elapsed since your most recent conviction, and all other requirements mentioned above are met.  While there are some circumstances that will prohibit an expungment (discussed below), as long as you meet the requirements, the judge must expunge your misdemeanor and D-Felony convictions.  Furthermore, once the convictions are expunged, the law states that you must be treated as if you have never been convicted of the offense.  Additionally, there are some more serious felonies that can be expunged, but the judge will have discretion to deny the expungement in those cases.

So far, the biggest obstacle we have seen for people trying to clean up their criminal histories is their past failure to successfully complete their sentence.  In order for the judge to expunge your criminal conviction, we must be able to show that you successfully completed your sentence and all obligations placed on you at the time of sentencing.  On a number of occassions we have met with people who had been arrested for a second crime while serving probation for their first criminal conviction.  If this second arrest caused the first probation to be revoked, that first conviction cannot be expunged.  However, if the sentence was successfully completed for that second crime, then that second conviction can be expunged, as long as all other requirements are met.  This can still be quite useful, as it often happens that the second offense is a felony.

During the past few years, we have often heard troubling stories from clients who have been arrested for certain crimes, but avoided conviction by completing a diversion program.  Some of those people are still having difficulty with background checks revealing the arrest.  A lot of employers and background check companies simply don't understand the difference between arrests and convictions.  Fortunately, the new expungement law helps in this situation as well.  If you have been arrested, but the charges have been dismissed, you can have the judge order that the arrest record be sealed as long as one year has elapsed since that arrest.

An important matter to know is that you can only seek expungement once in your lifetime.  If you have multiple convictions, we must expunge all within one year to count as "once."  Additionally, should you commit a new crime after old ones have been expunged, the State may unseal your expungement in some cases.  As you can imagine, there are exceptions to all of the rules discussed in this blog that may affect whether your record can be cleared.  Please call or e-mail me to discuss whether your record can be sealed or expunged.

The breath test refusal myth---as it goes in Hamilton County, Indiana

I can't tell you how many times clients have told me "I thought I was supposed to refuse to take the test."  Nooooo!!  Living with a DUI arrest and all that comes with it is difficult enough.  Refusing to take the chemical test makes it so much more difficult.  The theory behind advice to refuse the chemical test is that you don't provide evidence of your alcohol level, so therefore it will be more difficult for the State to prove you guilty.  That may have been true years ago.  It is not now....at least in Hamilton County.

You're pulled over for suspicion of operating while intoxicated in Hamilton County.  What will happen?  After a battery of field sobriety tests the police officer will read an implied consent advisal that will go something like this: "I have probable cause to believe you have operated a vehicle while intoxicated.  I must now offer you the opportunity to take a chemical test.  If you refuse to take the test your license will be suspended for one year (or two years if you have a prior DUI conviction).  Will you take a chemical test."  What they don't tell you (if you're stopped in Hamilton County) is that if you refuse to take the test, then they will seek a search warrant to draw your blood.  In all likelihood the judge will issue the warrant, they'll take you to the hospital, and then a nurse will draw your blood, which is then tested for alcohol.  You will then go to jail, facing the same charges you would have had you taken and failed a breath test.

You may be wondering what's the big deal.  If it's your first arrest, and you submit to and fail the test, usually you would be eligible for a hardship/probationary license to drive to and from work after only 30 days of suspension.  But if you refused to take the test, you are ineligible for that hardship/probationary license, and our best case scenario will be to try and convince the judge that it is in the best interest of society to terminate the refusal suspension early.  And even if the early termination is successful, there must be another mandatory minimum 90 days of suspension after the termination of the refusal suspension.  More often than not, the total time of license suspension for a first offender who refuses the breath test is 5 - 6 months.  Likely to be a lot less if you submit to the chemical test.

Matters are even worse for the person who has a prior conviction(s) for DUI.  Refusing to take the breath test (or any chemical test) will result in a two year license suspension.  AND, if convicted, there is a minimum mandatory one year suspension tacked on to the refusal suspension.  So instead of being suspended one year for being convicted after taking and failing the test, the multiple offender who refuses the test likely ends up with a 3-year suspension.  We can always argue to the judge that it's in the best interest of society to terminate the refusal early, but your chances of a judge granting that are not good, considering this is your second or more offense.

Consider this horror story, which is not all that uncommon.  A person is stopped for suspicion of drunk driving.  He refuses all tests, and as explained above, is taken to the hospital to have his blood drawn.  Unfortunately, the results of the blood test are not immediately available.  Consequently, he is arrested, jailed and charged with a DUI.  Months later the results come back under .08, the presumed level of intoxication.  While the DUI charge may ultimately be dismissed, the accused has paid thousands of dollars in bond and attorney fees.  Simply taking the breath test would have saved him a night in jail, thousands of dollars and a ton of anxiety.

The easiest way to avoid all this is don't drink and drive.  But if you find yourself in this unfortunate position, take the breath test.  If you wish to discuss this or any criminal defense matter further, please contact me.