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Is The County Prosecutor Required To Consent To Expungement Of Your Criminal Record? Contact Us
Indianapolis Criminal & OWI Lawyers > Blog > Expungement > Is The County Prosecutor Required To Consent To Expungement Of Your Criminal Record?

Is The County Prosecutor Required To Consent To Expungement Of Your Criminal Record?


Since 2013, Indiana law has made it possible for people convicted of certain crimes to expunge their records. Expungement is not automatic. In the case of felony convictions, a person must wait either 8 or 10 years before filing a petition with the court requesting an expungement. During that waiting period, the petitioner must have no further convictions and satisfy all monetary obligations to the state. If the conviction is a felony and one that resulted “in serious bodily injury to another person,” consent of the prosecutor is required.

Are there limits to the State’s Consent Requirement?

A recent decision from the Indiana Court of Appeals, Willford v. State, illustrates the limited scope of this prosecutorial consent requirement. In this case, the defendant hit another man with his car in 2006. Prosecutors charged the defendant with Class C felony battery and a Class A misdemeanor failing to stop at the scene of an accident. The case was tried in 2007 before a judge, sitting without a jury, who found the defendant guilty on both counts.

In 2021, the defendant–now the petitioner–filed a petition to expunge the battery conviction. A judge denied the petition, believing that the expungement required consent from the state. The petitioner appealed, arguing that his battery conviction did not include a finding that he caused “serious bodily injury” to another person, which would trigger the prosecutorial consent requirement.

The Court of Appeals agreed with the petitioner. The petitioner’s conviction was based on a charge for “battery by means of a deadly weapon”–his car–and not “battery causing serious bodily injury.” Indiana law at the time only required proof that the defendant either caused serious bodily injury or committed battery using a deadly weapon, not both. And the victim in this case only suffered “ordinary” injury, i.e., he did not require medical treatment.

After the Court of Appeals sought clarification, the judge who initially denied the expungement confirmed that there was “no indication” that the petitioner’s conviction included any finding of serious bodily injury. As such, the appellate court concluded that the exception requiring prosecutorial consent to the petitioner’s expungement petition did not apply. He was therefore entitled to proceed with his case before the trial court. (The Court of Appeals was not asked to rule on the merits of the expungement itself.)

Contact Rigney Law LLC Today

The rules governing expungement in Indiana are quite complicated. Some felonies cannot be expunged at all, while others may be subject to the prosecutorial consent requirement discussed above. It is also possible to expunge the record of an arrest where someone was charged with a crime but never convicted.

If you have a criminal record that you would like “cleaned up,” an Indianapolis expungement lawyer can review your case and advise you of your options. Contact Rigney Law LLC today to schedule a free initial consultation with a member of our criminal defense legal team.



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