Discretionary Expungement in Indiana: Why Eligibility Isn’t Enough and the Record You Build Matters
If you’ve started looking into Indiana expungement, you’ve probably seen language suggesting that once you meet the statutory requirements, your record can be cleared. Unfortunately, that’s only half the story.
Some Indiana expungements are discretionary, not automatic. A 2025 decision from the Indiana Court of Appeals makes this clear: simply meeting the statutory eligibility requirements is not enough. If you do not affirmatively show why you deserve the benefit of expungement, the court has the discretion to deny your petition.
This post breaks down what discretionary expungement really means in Indiana, what went wrong in C.H. v. State (2025), and why having competent expungement counsel — and a properly developed record — can make the difference between a clean slate and a permanent denial.
Indiana’s expungement statute (Indiana Code § 35-38-9) creates two very different categories of expungement:
For certain arrests, dismissals, infractions, and minor convictions, the court must grant expungement if statutory conditions are met. There is no weighing of equities. No character evaluation. No “gut feeling.”
If you qualify, the court grants it.
For more serious convictions — including many felony convictions — expungement is permissive, not mandatory. The statute uses the word may, not shall.
That single word gives the trial judge broad discretion.
In discretionary cases, the court is not limited to checking boxes. It is allowed — and expected — to ask:
Does this person truly deserve a fresh start?
What does their full criminal history show?
What is their character today?
What would expungement accomplish, and why is it justified?
Guidance from the Indiana Court of Appeals: C.H. v. State (2025)
In June 2025, the Indiana Court of Appeals decided C.H. v. State, a case that clearly illustrates how discretionary expungement can fail—even when a petitioner appears to satisfy the statutory eligibility requirements. The decision serves as a warning to anyone assuming that qualifying for expungement automatically guarantees relief.
What C.H. Asked For
C.H. filed a petition seeking to expunge multiple convictions, including a Class C felony conviction for operating a vehicle after lifetime forfeiture of driving privileges. Some of the convictions he sought to expunge were subject to mandatory expungement under Indiana law, and those requests were granted by the trial court. The felony conviction, however, fell under Indiana’s discretionary expungement statute, meaning the court was permitted—but not required—to grant relief.
What Happened at the Hearing
The expungement hearing lasted approximately eleven minutes. During that time, C.H. testified only to the most basic eligibility facts. He confirmed his identity, the age of the convictions, that he had completed his sentence, that all fines and fees had been paid, and that he was not aware of any pending criminal charges.
What was missing proved decisive. C.H. offered no testimony about rehabilitation or personal growth. He did not explain the circumstances of the offense, present evidence of employment stability or community involvement, or offer any character evidence. No witnesses testified on his behalf, no exhibits were submitted, and no narrative was presented explaining why expungement mattered or how it would serve the purposes of the statute. In short, C.H. demonstrated eligibility—but nothing more.
Why the Trial Court Denied the Expungement
The trial court denied expungement of the felony conviction, explaining that it was “not going to expunge with that kind of a record” and referencing information beyond what was affirmatively presented in the petition. After the denial, C.H. argued that the court failed to conduct the required fact-intensive inquiry.
The Indiana Court of Appeals rejected that argument.
The Critical Holding
The Court of Appeals emphasized several principles that every Indiana expungement petitioner should understand. Discretionary expungement requires a fact-intensive inquiry, and courts may consider a broad range of information when deciding whether a petitioner deserves a fresh start. The burden rests on the petitioner—not the court—to affirmatively demonstrate why expungement is warranted. When a petitioner presents little or no evidence beyond statutory eligibility, the court is not required to fill in the gaps or assume rehabilitation. Because C.H. failed to build a meaningful record, the trial court did not abuse its discretion in denying expungement.
Eligibility Is Only the Starting Line — Not the Finish
One of the most common and dangerous misconceptions in expungement cases is the belief that qualifying under the statute guarantees approval. That assumption is simply incorrect in discretionary expungement cases. Meeting the eligibility requirements only allows the court to consider expungement—it does not compel the court to grant it.
What Judges Are Allowed to Consider
In discretionary expungement cases, Indiana judges are permitted to consider far more than the contents of the petition itself. Courts may evaluate the nature and seriousness of the offense, the petitioner’s broader criminal history, compliance with prior court orders, conduct since the conviction, and evidence bearing on the petitioner’s character. Judges may also rely on information contained in probation files, court records, or related cases, and they may consider whether expungement would genuinely serve the purpose of the statute.
If a petitioner does not present affirmative evidence, the court may instead rely on records checks, prior violations, other case files, and reasonable inferences that may not favor the petitioner. Silence is not neutral in discretionary expungement proceedings—it is often fatal.
Why Competent Expungement Counsel Matters
C.H. v. State is not a story about a defective statute. It is a story about poor expungement strategy. Discretionary expungement is not something that should be handled casually or treated as a paperwork exercise. A well-prepared expungement case should never walk into court empty-handed.
What a Strong Expungement Record Looks Like
Effective expungement counsel understands the importance of developing a complete and persuasive record. That record should demonstrate rehabilitation and sustained law-abiding behavior, employment stability, family responsibilities, and community involvement. It should also document any education, counseling, or treatment completed since the conviction and explain the concrete harm caused by the continued public availability of a criminal record.
Just as importantly, a strong expungement record explains why granting relief advances justice rather than mere convenience. This often requires testimony, affidavits, letters of support, employment documentation, treatment records, and a clear narrative tying the petitioner’s progress to the goals of Indiana’s expungement statute. None of that occurred in C.H., and the denial of expungement stood.
Can You Fix a Bad Expungement Hearing Later?
Sometimes—but often, no. A denied discretionary expungement is extremely difficult to reverse on appeal. Appellate courts review these decisions under an abuse-of-discretion standard, which gives significant deference to the trial court.
Appeals courts do not retry expungement cases or consider new evidence. They review only the record that was created in the trial court. If that record is thin or underdeveloped, the appeal will almost certainly fail. A poorly presented expungement hearing can permanently damage an otherwise viable case, exactly as it did in C.H. v. State.
What This Means for Felony Expungement in Indiana
If you are seeking felony expungement in Indiana, particularly under a discretionary statute, you should assume that the judge will look well beyond your petition. The court will expect you to explain, with evidence, why expungement is justified in your specific case. Simply checking statutory boxes is not enough.
A minimalist approach carries serious risk. Preparation matters more than eligibility. Discretionary expungement is not a form-filing exercise—it is litigation.
Indiana’s expungement statute offers powerful relief, but only to those who prove they deserve it. C.H. v. State confirms what experienced expungement attorneys already know: discretionary expungement lives and dies on the record you create. Judges are not obligated to assume rehabilitation, and silence or minimal evidence favors denial. Competent counsel is often the difference between success and failure.
If you want the benefit of expungement, you must earn it in the courtroom—not just qualify on paper.
If you are serious about clearing your record—especially a felony—do not leave it to chance.
Call or text Vining Legal at (317) 759-3225, or schedule your consultation here:
https://indianalawyer.esq/contact
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