Majority: Expungement Applies To Civil Forfeiture Action

Jennifer Nelson for www.theindianalawyer.com

The Indiana Court of Appeals was divided Thursday over whether a man’s civil forfeiture action that stemmed from a drug bust should have been expunged in addition to his criminal record in the matter.

D.A. was convicted of dealing and possession offenses in 2003 after a controlled drug buy in Madison County in 2002. The state also filed a civil forfeiture action against the $720 seized from D.A. during his arrest for the criminal offenses. The trial court ordered that money forfeited.

In August 2014, D.A. filed an expungement petition related to the criminal matter, which the court granted. Thirteen days later, he asked the court to amend the order to include the civil forfeiture action, which it denied.

The issue of whether Indiana’s expungement statutes apply to the records of civil forfeiture proceedings is one of first impression, Judge Edward Najam noted in D.A. v. State of Indiana, 48A02-1504-MI-215.

“The purpose of our expungement statutes is to ‘give individuals who have been convicted of certain crimes a second chance by not experiencing many of the stigmas associated with a criminal conviction … ,’” Najam wrote for the majority joined by Judge James Kirsch. “That purpose would be frustrated by providing only incomplete or partial relief. Accordingly, we hold that, where, as here, a civil forfeiture is ancillary to a criminal conviction and the nexus between the civil forfeiture and the criminal conviction is established, a defendant may petition the trial court to expunge the records of that civil forfeiture along with the records of the related criminal conviction.

“In other words, where the factual basis for a criminal conviction and a civil forfeiture are the same, the records of the civil forfeiture proceeding relate to the person’s conviction for purposes of our expungement statutes.”

Judge Michael Barnes dissented, noting that one can have a civil forfeiture proceeding initiated even if one has not been convicted or charged with a crime.

“The expungement statutes were first enacted in 2013 and represented a sea change in Indiana criminal law. They have been amended twice since then. I presume the legislature carefully considered these statutes. At no time did it see fit to include forfeiture proceedings within the enumerated list of records subject to expungement, which expressly includes Department of Correction, Bureau of Motor Vehicles, and treatment records. I believe we should not add civil forfeitures to the list of records to be expunged by judicial action. If the legislature chooses to act on civil forfeitures, so be it,” he wrote.