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NEW Expungement Law in Kentucky

July 29, 2016

            Kentucky’s new expungement statute, House Bill 40, was passed by the Kentucky General Assembly on April 1, 2016, and filed with the Kentucky Secretary of State’s Office on April 12.  It became effective on July 15, 2016.  The Bill creates a new section of Kentucky Revised Statutes, Chapter 431, and provides for the expungement of 61 specific felony offenses.  All of these offenses can be classified as non-violent, Class D felonies. 

            Excluded from expungement are Class D felonies that relate to assault, sex abuse, drug trafficking, and firearms offenses.  Class A, B, and C felonies cannot be expunged.  The new law relates only to non-violent, Class D felonies that are specifically listed in House Bill 40.

            The Kentucky Administrative Office of the Courts has published guidelines for the electronic filing of expungement applications under the new law as of July 15, 2016.  The filing fee for this type of expungement application is $500.  (Expunging misdemeanor or diverted cases is less expensive.)  Of that fee, $50 is deposited into a trust and agency accounts for court clerks and will not be refundable.

            In criminal cases in which sentencing occurs after July 15, 2016, the court is required to inform the defendant that the conviction is subject to expungement.  Again, this is limited only to the felony offenses listed in the statute.

            An expungement application must be verified, i.e., sworn to under oath.  An application cannot be filed until five years after the completion of the person’s sentence.  This would include five years after the successful completion of the person’s probation or parole.  After filing the application and paying the fee, the circuit court clerk will serve a notice of the filing on the Commonwealth Attorney or County Attorney who prosecuted the case.  The prosecutor’s office has 60 days after service to file a response.  The prosecutor can request additional time for good cause, but the application must be heard no later than 120 days after it is filed.  The absence of the victim is not good cause to extend the time.  A hearing cannot be scheduled earlier than 120 days after filing.

            The Commonwealth may object to the application and obtain records to verify that the applicant has had no other criminal convictions. 

            If the court grants the expungement, the prior judgment is vacated and the earlier charge is dismissed with prejudice.  This means that the charge cannot be refiled.  In order to have records of the arrest and any custody removed, the court must make findings that (1) the person had no previous felony conviction vacated and the record is expunged under the new law; (2) within five years prior to filing of the application, the applicant had not been convicted of another felony or a misdemeanor; and (3) no proceeding regarding a felony or misdemeanor offense is pending or being instituted against the applicant.

            Once an offense is vacated and expunged, the court and other agencies including police departments are required to cause records to be deleted or removed from their computer systems so that it will not show up on official state performed background checks.  Any individual whose record is expunged will not be required to disclose the fact of the record or any matter that relates to the prior conviction on any employment application, credit, or other application.  If the individual was prohibited from voting for any other reason, the individual’s ability to vote shall be restored and that person is entitled to register. 

            This new Class D Felony statute is a positive step for individuals in the Commonwealth of Kentucky and represents the current “Ban the Box” movement.  An expunged conviction need not be disclosed in employment applications.  A felony conviction is an extreme hardship to job seekers.

            If you have questions regarding the new expungement statute and want to inquire whether or not a previous felony conviction for which you have completed your sentence and at least five years have passed, please feel free to contact our office at 859-331-2000.

Author: Gary Sergent, Esq.