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10/17/2013 7:54:00 PM
Morgan County prosecutor challenging state law on expungement of criminal records

Keith Rhoades, Reporter-Times

Morgan County Prosecutor Steve Sonnega will be asking Morgan County Circuit Court Judge Matthew Hanson to declare a law that allows the expungement of criminal records to be unconstitutional. A hearing is scheduled for 1:30 p.m. Friday in the case of Jason Combs. Combs is asking that his 2006 criminal conviction for reckless driving, unreasonable speed, be expunged.

In August of 2005, Combs, then 32, was charged with operating a vehicle while intoxicated as a class A misdemeanor, operating a vehicle with a blood alcohol content of .08 percent as a class C misdemeanor, public intoxication and reckless driving, both class B misdemeanors.

In 2006, Combs, who was represented by John Boren, accepted a plea deal to plead guilty to the reckless driving charge and be sentenced to 180 days in jail, which was suspended except for six days to serve and nine months probation. The other three charges were dismissed.

Sonnega contends the plea agreement is a contract between the accused and the state. In cases where there is a victim, that contract could involve the victim.

Sonnega said the Indiana Constitution bars the legislature from interfering with legal contracts between parties.

The prosecutor said the law, which went into effect July 1, allows all misdemeanors to be expunged regardless of circumstances. It allows some C and D felonies to be expunged.

Sonnega said he thinks the law is a violation of the separation of powers because it takes away the court’s ability to decide on a case-by-case basis to determine if a person should have their criminal history expunged.

In addition to the constitutionality of the law, Sonnega said there are other areas that need to be considered. He said currently, in some circumstances, the state will allow a person to plead guilty to a D felony with the chance that at some future date, that conviction could be reduced to a misdemeanor. His concern it that state and federal law forbid someone who has been convicted of a felony from purchasing a firearm. He questions what will keep someone who has a felony conviction that has been reduced to a misdemeanor, then expunged, from purchasing a firearm in violation of the law.

He said another area for concern is alcohol-related convictions. Sonnega said there are federal laws that can limit licensing of drivers convicted of alcohol-related offenses. If a conviction is expunged, he wonders what will keep a person from obtaining a Commercial Driver’s License (CDL) in violation of the law.

Sonnega said he is not against records being expunged but it should be done on a case-by-case basis.

Attorney John Boren, whose office is representing Combs in his expungement request, said the law is intended to help those who have criminal records obtain employment. He said people serve their time but in reality, their conviction follows them when they apply for a job. Boren said because they have the conviction on their record, they never finish serving their sentence.

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