Can a DUI be expunged in Indiana?

Whether a DUI can be cleared at all

Indiana Code § 35-38-9-2 applies to a person convicted of a misdemeanor, and a misdemeanor conviction for operating a vehicle while intoxicated is not among the two exclusions in subsection (b), which cover a person convicted of two or more felony offences involving the unlawful use of a deadly weapon committed in separate episodes, and a sex or violent offender as defined in Indiana Code § 11-8-8-5. The petition may be filed no earlier than five years after the date of conviction unless the prosecuting attorney consents in writing to an earlier period.

“(b) This section does not apply to the following: (1) A person convicted of two (2) or more felony offenses that: (A) involved the unlawful use of a deadly weapon; and (B) were not committed as part of the same episode of criminal conduct. (2) A sex or violent offender (as defined in IC 11-8-8-5 ).”

The driving record is a separate record

This is the part most summaries leave out. A court can seal or expunge the criminal case and the licensing agency can still keep the DUI on the driver record, where it reaches insurers and counts as a prior offence if there is a second one.

Partly cleared. Indiana is unusual in reaching the driving record. Indiana Code § 35-38-9-2(c) lists the files of the bureau of motor vehicles among the conviction records a court may expunge, and § 35-38-9-6(a)(1) directs the court to order the bureau to prohibit the release of the records to anyone without a court order, other than a law enforcement officer acting in the course of official duty. Three limits remain. Section 35-38-9-6(b) states that an expungement granted under sections 2 through 3 does not affect an existing or pending driver's licence suspension. Section 35-38-9-6(a)(3)(G) still allows disclosure to the bureau, the Federal Motor Carrier Administration and the Commercial Drivers License Information System where federal law requires reporting a traffic-law conviction. And Indiana Code § 35-38-9-0.6(d) bars a court from ordering the bureau to seal, restrict access to or expunge a conviction for a person who held a commercial driver's licence or learner's permit at the time of the offence where the conviction is for a violation described in 49 CFR 384.226.

“However, a petition for expungement granted under sections 2 through 3 of this chapter does not affect an existing or pending driver's license suspension.”

What else sits on that record: suspensions and points in Indiana.

How long the wait is, and from when

The five years run from the date of conviction. The court must also find that no charges are pending, that all fines, fees and court costs are paid and any restitution satisfied, and that the person has not been convicted of a crime within the previous five years — or within a shorter period the prosecuting attorney has agreed to. For an arrest or charge that did not lead to a conviction, Indiana Code § 35-38-9-1 requires the court to order expungement immediately on dismissal, acquittal or vacatur, with the order taking effect no earlier than 60 days later.

“(4) the person has not been convicted of a crime within the previous five (5) years (or within a shorter period agreed to by the prosecuting attorney if the prosecuting attorney has consented to a shorter period under subsection (c));”

Automatic or by petition

A conviction is expunged only on petition under Indiana Code § 35-38-9-2. Non-conviction records are cleared without a petition in the cases in Indiana Code § 35-38-9-1(b), which applies to charges filed after June 30, 2022: where a court dismisses all charges, or a defendant is acquitted or the conviction is vacated, the court shall immediately order all related records expunged, though the order may not take effect earlier than sixty days from the dismissal, acquittal or no true finding, and the prosecuting attorney may ask for a delay of up to one year.

“the court shall immediately order all records related to the criminal charges or juvenile delinquency allegations expunged.”

Where it is filed, and what it costs

Indiana Code § 35-38-9-2(d) requires the petition to be filed in a circuit or superior court in the county of conviction. Indiana Code § 35-38-9-8 states the petitioner pays the filing fee required in civil cases and allows the court to reduce or waive it. If the court makes the findings in § 35-38-9-2(e), it shall order the conviction records expunged in accordance with § 35-38-9-6. Under § 35-38-9-11 a waiver of the right to expungement in a plea agreement is invalid.

“pay the filing fee required in civil cases. The court may reduce or waive”

Whether a cleared DUI still counts as a prior

An Indiana expungement does not put the conviction beyond reach in a later case. Indiana Code § 35-38-9-6(d) allows a prosecuting attorney to apply in writing to the court that granted the expungement for access to the permanently sealed records where they are relevant in a new prosecution, and the court shall then order them unsealed. Section 35-38-9-6(a)(1) also preserves access for a law enforcement officer acting in the course of official duty.

“a prosecuting attorney may submit a written application to a court that granted an expungement petition under this chapter to gain access to any records that were permanently sealed under subsection (b), if the records are relevant in a new prosecution of the person.”

The statute: Ind. Code § 35-38-9-2

“Not earlier than five (5) years after the date of conviction (unless the prosecuting attorney consents in writing to an earlier period) for the misdemeanor or the felony reduced to a misdemeanor ... the person convicted of the misdemeanor ... may petition a court to expunge all conviction records”