How HB 40 Affects Felony Expungement Laws in Kentucky
If you are a convicted Class D felony in Kentucky, state law now allows many of those charges to be wiped clean from criminal records five years after a sentence or probation is completed. Effective July 2016, HB 40 amended several state laws by allowing for the expungement of certain Class D felonies.
Once an expungement petition is filed with the court, the process will take at least 120 days to complete.
For assistance with Kentucky’s new expungement law or to have a case reviewed to see if it is eligible for the expungement process, contact Attorney Emily Roark at the Bryant Law Center at 270-442-1422.
How HB 40 Works
Up to 100,000 Kentuckians could be eligible to have their convictions vacated. To be eligible, an applicant cannot have any pending misdemeanor or felony charges and cannot be on any form of probation. The Kentucky law does not include any federal court charges.
The law covers 61 felonies, (see attached list) or about 70% of the available infractions.
The law specifically excludes expungement for any violent crimes, sexual offense or for any crimes against children or public corruption.
The measure was passed primarily to help complete the criminal rehabilitation process and to allow people an opportunity at obtaining better employment by being able to show a clean criminal history.
Some of the most frequently committed offenses are failure to pay child support, possession of a controlled substance and various theft charges.
Under the final bill passed by the Kentucky General Assembly and signed into law, felons who want their records cleared will need a clean record for five years after their sentences or probation are complete and pay a $500 state fee. The case will be reopened and the conviction vacated and then dismissed.
The law also allows for the dismissal and expungement of felony district court charges, for which a grand jury did not return an indictment.
The law allows local prosecutors to object to the expungement petition and it also allows for any victims of the crime to be notified. It also allows for the removal of an expunged case defendant’s name in any published court opinion discussing that case.
The bill describes expungement as follows:
After the expungement, the proceedings in the matter shall be deemed never to have occurred. The court and other agencies shall delete or remove the records from their computer systems so that any official state-performed background check will indicate that the records do not exist. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application.”
Felonies Eligible for Expungement After Passage of Kentucky House Bill 40 in 2016
- 17.175 Unauthorized use/dissemination/receipt of DNA info
- 186.990 Theft of motor vehicle plates/decal
- 194A.505 False statement/Misrep to receive benefits >$100
- 194B.505 False statement/Misrep to receive benefits >$100 *REPEALED 2005*
- 217.181 Theft of a legend drug
- 217.207 Theft, criminal possession, trafficking, or unlawful possession of a prescription blank
- 217.208 Forgery of a prescription
- 218A.140 Prohibited acts relating to controlled substances
- 218A.1415 Possession in 1st degree
- 218A.1416 Possession of controlled substance in 2nd degree
- 218A.1417 Possession of controlled substance in 3rd degree
- 218A.1418 Theft of a controlled substance *REPEALED* 2013
- 218A.1423 Cultivation of Marijuana
- 218A.1439 Trafficking in or transferring a dietary supplement
- 218A.282 Forgery of a prescription
- 218A.284 Criminal possession of a forged prescription
- 218A.286 Theft, criminal possession, trafficking, or unlawful possession of a prescription or blank
- 218A.320 Criminal possession of a medical record
- 218A.322 Theft of a medical record
- 218A.324 Criminal falsification of a medical record
- 244.165 Unlawful sale and shipment of alcoholic beverages by out-of-state seller directly to a Kentucky consumer
- 286.11-057 False Statement/Certification in money transmission record
- 304.47-025 Felony offense involving dishonesty or breach of trust – Fraudulent insurance act
- 324.990 Engaging in real estate brokerage without license
- 365.241 Counterfeiting intellectual property
- 434.155 Filing illegal lien
- 434.675 Use of scanning device or reencoder to obtain payment card information
- 434.850 Unlawful access to a computer in the second degree
- 434.872 Disclosure of information from financial information repository
- 511.040 Burglary, 3rd Degree
- 512.020 Criminal Mischief, 1st Degree
- 514.030 Theft by unlawful taking or disposition
- 514.040 Theft by deception
- 514.050 Theft of property lost, mislaid, or delivered by mistake
- 514.060 Theft of services
- 514.065 Possession, use, or transfer of device for theft of telecommunications services
- 514.070 Theft by failure to make required disposition of property
- 514.080 Theft by extortion
- 514.090 Theft of labor
- 514.100 Unauthorized use of automobile or other propelled vehicle
- 514.110 Receiving stolen property
- 514.120 Obscuring identity of machine or other property
- 514.140 Theft of mail matter
- 514.150 Possession of stolen mail matter
- 514.160 Theft of identity
- 516.030 Forgery in the second degree
- 516.060 Criminal possession of forged instrument in the second degree
- 516.090 Possession of forgery device
- 516.108 Criminal simulation in the first degree
- 517.120 Operating a sham or front company
- 518.040 Sports bribery
- 522.040 Misuse of confidential information
- 524.100 Tampering with Physical Evidence
- 525.113 Institutional vandalism
- 526.020 Eavesdropping
- 526.030 Installing eavesdropping device
- 528.020 Promoting gambling in the first degree
- 528.040 Conspiracy to promote gambling
- 528.050 Possession of gambling records in the first degree
- 530.010 Bigamy
- 530.050 Flagrant non support
Other Charges Eligible for Expungement
Under existing Kentucky law, it may also be possible to have some misdemeanor convictions expunged including: Criminal Trespass; Theft by Unlawful Taking (shoplifting); Possession of Marijuana; Public Intoxication and several other types of misdemeanors and violations or any charge that resulted in an acquittal.
In cases where a person has an arrest on their record no charges were filed or the person was found not guilty, an expungement may also be sought.
When Can I Apply for an Expungement?
For both Class D felonies and misdemeanors, you can fill out an application five years after the completion of your sentence or five years after completion of your probation or parole, whichever occurs later.
If you were found not guilty of a misdemeanor, you can file a petition 60 days after the dismissal of your case.
You will not be eligible for an expungement if you are convicted of another crime or in the process of having another crime expunged at the time you file for an expungement.
What Is the Process for an Expungement?
- Request a report (also called an expungement certificate) from the Kentucky State Police with a $40 filing fee. You must have the report to proceed with the process. The report can be processed within a few days or up to a month depending on the police department. The report or certificate will not automatically grant you an expungement. Only a judge can grant an expungement.
- When the report is returned, your attorney files a motion or order with the Kentucky State Police report asking the judge to grant the expungement. The report for a felony conviction cost a $500 filing fee with no guarantee your criminal offense will be expunged. A misdemeanor conviction filing fee cost $100 or no filing fee if you did not plead guilty to the misdemeanor. If the judge denies your expungement, a portion of the filing fee will be returned. The report must be included for the judge to consider your expungement. If a report is not included, the judge will deny the expungement. In some cases, if your report from the Kentucky State Police denies your eligibility for expungement, your attorney can argue in your favor and reverse the report.
- Once the motion is filed, the prosecutor has 60 days to file against your expungement. If he or she fails to file against your expungement, the judge will decide to grant or deny your motion. If the prosecutor files within the 60 days against your expungement, the judge will schedule a hearing to hear from both the prosecutor and your attorney and make a ruling.
What Are the Benefits of an Expungement?
An expunged conviction completely erases the arrest or criminal conviction on your legal record. It will not appear on a background check, and you can legally state that the conviction never happened. If a court clerk pulls up your legal record, it will state that you had an expungement, but will not show the details of the arrest or criminal conviction.
If you are asked on a job application about your expunged arrest or criminal conviction, you can legally answer ‘no’ because an expunged account is completely wiped from your record.
Expungement Laws in Kentucky
For more information about expungements in Kentucky, visit the Kentucky Court of Justice.
Do you have a conviction eligible for expungement? For a free evaluation of your case and further information, contact email@example.com.