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Article updated: 7/27/2013 1:09 PM

Law allowing expungement creating legal confusion

Associated Press

FORT WAYNE, Ind. -- A northeastern Indiana judge is cautioning those with criminal records to use caution before attempting to have their records expunged under a new state law, saying the measure as approved by lawmakers is complex and that offenders only have one chance at shielding their records from public view.

The goal of the measure that took effect July 1 is to improve nonviolent offenders' chances of getting a job by shielding felony convictions from a background check done by potential employers. Police would still be able to see the conviction.

Those interested must petition a court to have their records of the conviction and initial arrest expunged, The Journal Gazette.

But Allen Superior Court Judge Fran Gull says the new law has created confusion and that there isn't a framework to process the requests. She recommends offenders consult an attorney before petitioning the court.

Under the law, crimes such as battery, operating a motor vehicle while intoxicated causing death, theft and forgery are eligible. Most sex or violent offenders, as well as those convicted in a homicide case, aren't eligible to have their records cleared.

The measure replaces a 2011 law that allowed those who committed misdemeanors or Class D felonies that didn't result in injury to request restricted access to their records, so long as they met certain requirements.

Gull said the old law was easy to understand, but its replacement isn't user-friendly.

Gull and Allen County Deputy Prosecutor Michael McAlexander noted that offenders get just one chance to expunge their records. That means someone in their early 20s might not want to petition the court if there's a risk he or she will run afoul of the law again later in life.

"They get one shot at this," McAlexander said.

The statute creates separate sections for felonies reduced to misdemeanors, Class D felonies, more serious felonies that did not result in injuries and other areas, McAlexander said. That means court employees "will have to take a good look" at every person who seeks an expungement, he said.

The courts are responsible for examining legal files and contacting every entity connected to the case, whether it be the Bureau of Motor Vehicles or an agency that provided treatment.

The Allen County prosecutor's office will check each request to satisfy that the defendant has met all the requirements under the law, McAlexander said.

"We anticipate it will take, potentially, a lot more work," he said.

Gull said the intention behind the law was noble but that it is going to be difficult to enforce without a framework in place to process the requests.

"My goodness, it sure isn't going to be easy," she said.

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