On April 12, 2016, Governor Matt Bevin signed House Bill 40, a felony expungement law. Expungement is the legal process by which a person can completely remove an arrest, charge, and/or conviction from his or her criminal record. A person who obtains an expungement can truthfully answer “no” on a housing or employment application when asked if he or she has any prior felonies. This can be greatly beneficial in finding a good job or a nice place to live.
Prior to the passage of HB 40, no felonies in Kentucky could be expunged. However, the passage of the law means that more than 60 different Class D felonies are now eligible for expungement. The most common eligible felonies include possession of a controlled substance, possession of a forged instrument, theft by unlawful taking, criminal mischief, tampering with physical evidence, and burglary in the third degree. (Drug trafficking and wanton endangerment are not expungable offenses under the new law.) The full list of expungable offenses includes the following:
• Unauthorized use, dissemination, or receipt of DNA information – KRS 17.175
• Theft of motor vehicle plates/decal – KRS 186.990
• False statement or misrepresentation to receive benefits under $100 – KRS 194A.505 and 194B.505
• Theft of a legend drug – KRS 217.181
• Theft, criminal possession, or trafficking of a prescription for legend drug – KRS 217.207
• Forgery of a prescription for a legend drug, first offense – KRS 217.208
• Prohibited acts relating to controlled substances – KRS 218A.140
• Attempting to obtain a prescription for a controlled substance by fraud or forgery – KRS 218A.140(1A)
• Making a false statement to procure a controlled substance – KRS 218A.140(1B)
• Use of a false name or address to procure a controlled substance – KRS 218A.140(1C)
• Making a false statement regarding a prescription – KRS 218A.140(1D)
• Possess, manufacture, sell, dispense a counterfeit substance – KRS 218A.140(2)
• Obtain a prescription without having formed a practitioner-patient relationship – KRS 218A.140(3)
• Possession of a Controlled Substance, first degree – KRS 218A.1415
• Forgery of a prescription for a controlled substance, first offense – KRS 218A.282
• Criminal possession of a forged prescription – KRS 218A.284
• Theft, criminal possession, or trafficking of a prescription for controlled substance – KRS 218A.286
• Criminal possession of a medical record – KRS 218A.320
• Theft of a medical record – KRS 218A.322
• Criminal falsification of a medical record – KRS 218A.324
• Possession of controlled substance, second degree – KRS 218A.1416
• Possession of controlled substance, third degree – KRS 218A.1417
• Theft of a controlled substance – KRS 218A.1418
• Cultivation of marijuana – KRS 218A.1423
• Trafficking in or transferring a dietary supplement – KRS 218A.1439
• Unlawful sale or shipment of alcoholic beverages by out-of-state seller to a Kentucky consumer – KRS 244.165
• False statement or certification in a money transmission record – KRS 286.11-057
• Felony offense involving dishonesty or breach of trust under the Fraudulent Insurance Act – KRS 304.47-025
• Engaging in real estate brokerage without license – KRS 324.990
• Counterfeiting intellectual property – KRS 365.241
• Promoting gambling – KRS 428.020
• Filing illegal alien – KRS 434.155
• Use of scanning device or re-encoder to obtain payment card information – KRS 434.675
• Unlawful access to a computer in the second degree – KRS 434.850
• Disclosure of information from financial information repository – KRS 434.872
• Burglary, third degree – KRS 511.040
• Criminal mischief, first degree – KRS 512.020
• Theft by unlawful taking – KRS 514.030
• Theft by deception under $10,000 – KRS 514.040
• Theft of property lost, mislaid, or delivered by mistake – KRS 514.050
• Theft of services – KRS 514.060
• Possession, use, or transfer of device for theft of telecommunication services – KRS 514.065
• Theft by failure to make required disposition of property – KRS 514.070
• Theft by extortion – KRS 514.080
• Theft of labor – KRS 514.090
• Unauthorized use of automobile or other propelled vehicle – KRS 514.100
• Receiving stolen property under $10,000 – KRS 514.110
• Obscuring identity of machine or other property – KRS 514.120
• Theft of mail matter – KRS 514.140
• Possession of stolen mail matter – KRS 514.150
• Theft of identity – KRS 514.160
• Forgery, second degree – KRS 516.030
• Criminal possession of a forged instrument, second degree – KRS 516.060
• Possession of a forgery device – KRS 516.090
• Criminal simulation in the first degree – KRS 516.108
• Operating a sham or front company – KRS 517.120
• Sports bribery – KRS 518.040
• Misuse of confidential information – KRS 522.040
• Tampering with physical evidence – KRS 524.100
• Institutional vandalism – KRS 525.113
• Eavesdropping – KRS 526.020
• Installing eavesdropping device – KRS 526.030
• Conspiracy to promote gambling – KRS 528.040
• Possession of gambling records in the first degree – KRS 528.050
• Bigamy – KRS 530.010
• Flagrant non-support – KRS 530.050
To be eligible for expungement, a person must meet the following requirements:
1. No criminal charges currently pending.
2. The felony the person seeks to expunge must be contained on the list of Class D felonies above.
3. Five years have passed since the completion of the person’s most recent sentence (including any term of probation).
4. The person has never expunged a Class D felony before.
5. The person pays $40 to the Administrative Office of the Courts to obtain a Certificate of Eligibility to request an expungement (available online at courts.ky.gov/expungement).
6. The person must pay felony expungement costs of $500 and file the appropriate expungement paperwork with the court within 30 days of receiving the certificate of eligibility.
The trial court maintains the discretion to grant or deny a petition for expungement. A person can take advantage of felony expungement only once in his or her life. Only one felony can be expunged, unless multiple felony convictions were part of the same case and arose from the same conduct. The new law applies only to Kentucky felonies, and does not expunge felonies from federal court or other states.
The new felony expungement law, which is codified at KRS 431.073, took effect in July 2016. If you need help obtaining an expungement for a misdemeanor or felony conviction, contact one of the criminal defense attorneys at Adams, Stepner, Woltermann & Dusing today!
Information in this article was adapted from materials provided by Clean Slate Kentucky (www.CleanSlateKentucky.com).