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Legicrawler :: Kentucky SB00016

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KYSB00016
KRS 431.073 AN ACT relating to expungement. Amend KRS 431.073 to allow discretionary expungement of Class D felonies, other than sex crimes, offenses against a victim who is a minor, or offenses which would qualify a person as a violent offender; specify a ten-year waiting period.
Status: Feb 17, 2017 : taken from State & Local Government (S); 2nd reading; returned to State & Local Government (S)

Kentucky Legislation provided by Legicrawler © 2013-2015

     UNOFFICIAL COPY                                                                   17 RS BR 396



 1           AN ACT relating to expungement.

 2   Be it enacted by the General Assembly of the Commonwealth of Kentucky:
 3           Section 1. KRS 431.073 is amended to read as follows:

 4   (1)    (a)      Any person who has been convicted of a Class D felony violation of KRS

 5                   17.175, 186.990, 194A.505, 194B.505, 217.181, 217.207, 217.208, 218A.140,

 6                   218A.1415, 218A.1416, 218A.1417, 218A.1418, 218A.1423, 218A.1439,

 7                   218A.282, 218A.284, 218A.286, 218A.320, 218A.322, 218A.324, 244.165,

 8                   286.11-057, 304.47-025, 324.990, 365.241, 434.155, 434.675, 434.850,
 9                   434.872, 511.040, 512.020, 514.030, 514.040, 514.050, 514.060, 514.065,

10                   514.070, 514.080, 514.090, 514.100, 514.110, 514.120, 514.140, 514.150,

11                   514.160, 516.030, 516.060, 516.090, 516.108, 517.120, 518.040, 522.040,

12                   524.100, 525.113, 526.020, 526.030, 528.020, 528.040, 528.050, 530.010, or

13                   530.050, or a series of Class D felony violations of one (1) or more statutes

14                   enumerated in this section arising from a single incident, or who has been

15                   granted a full pardon, may file with the court in which he or she was convicted

16                   an application to have the judgment vacated. The application shall be filed as

17                   a motion in the original criminal case. The person shall be informed of the

18                   right at the time of adjudication.

19           (b)     Any person who has been convicted of a Class D felony violation of a

20                   statute not enumerated in paragraph (a) of this subsection that was not a

21                   sex crime as defined in KRS 17.500, a criminal offense against a victim who

22                   is a minor as defined in KRS 17.500, or an offense that would classify the

23                   person as a violent offender under KRS 439.3401, or a series of Class D

24                   felony violations of one (1) or more statutes eligible under this paragraph

25                   arising from a single incident, may file with the court in which he or she
26                   was convicted an application to have the judgment vacated. The application

27                   shall be filed as a motion in the original criminal case. The person shall be

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     UNOFFICIAL COPY                                                                   17 RS BR 396



 1                   informed of the right at the time of adjudication.

 2   (2)     A verified application pursuant to subsection (1)(a) of this section to have the

 3           judgment vacated under this section shall be filed no sooner than five (5) years after

 4           the completion of the person's sentence, or five (5) years after the successful

 5           completion of the person's probation or parole, whichever occurs later. A verified

 6           application pursuant to subsection (1)(b) of this section to have the judgment

 7           vacated under this section shall be filed no sooner than ten (10) years after the

 8           completion of the person's sentence, or ten (10) years after the successful
 9           completion of the person's probation or parole, whichever occurs later. Upon the

10           payment of the filing fee and the filing of the application, the Circuit Court clerk

11           shall serve a notice of filing upon the office of the Commonwealth's attorney or

12           county attorney that prosecuted the case and the county attorney of the county where

13           the judgment was entered. The office of the Commonwealth's attorney or county

14           attorney that prosecuted the case shall file a response within sixty (60) days after

15           being served with the notice of filing. That time period may be extended for good

16           cause, but the hearing on the application to vacate the judgment shall occur no later

17           than one hundred twenty (120) days following the filing of the application. The

18           inability to determine the location of the crime victim shall constitute good cause

19           for an extension of time. No hearing upon the merits of the application shall be

20           scheduled until the Commonwealth's response has been filed, or if no response is

21           received, no later than one hundred twenty (120) days after the filing of the

22           application.

23   (3)     Upon the filing of the Commonwealth's response to an application, or if no response

24           is received, no later than one hundred twenty (120) days after the filing of the

25           application, the court shall set a date for a hearing and the Circuit Court clerk shall
26           notify the office of the Commonwealth's attorney or county attorney that prosecuted

27           the case. The office of the Commonwealth's attorney or county attorney that

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     UNOFFICIAL COPY                                                                       17 RS BR 396



 1           prosecuted the case shall notify the victim of the crime, if there was an identified

 2           victim. The Commonwealth's attorney or county attorney shall be authorized to

 3           obtain without payment of any fee information from the Transportation Cabinet

 4           regarding the crime victim's address on file regarding any vehicle operator's license

 5           issued to that person.

 6   (4)     The court may order the judgment vacated, and if the judgment is vacated the court

 7           shall dismiss with prejudice any charges which are eligible for expungement under

 8           subsection (1) of this section or KRS 431.076 or 431.078, and order expunged all
 9           records in the custody of the court and any records in the custody of any other

10           agency or official, including law enforcement records, if the court finds that:

11           (a)     The person had not previously had a felony conviction vacated and the record

12                   expunged pursuant to this section;

13           (b)     1.      For an application pursuant to subsection (1)(a) of this section, the

14                           person had not in the five (5) years prior to the filing of the application

15                           to have the judgment vacated been convicted of a felony or a

16                           misdemeanor; or

17                   2.      For an application pursuant to subsection (1)(b) of this section, the

18                           person had not in the ten (10) years prior to the filing of the

19                           application to have the judgment vacated been convicted of a felony or
20                           a misdemeanor; and

21           (c)     No proceeding concerning a felony or misdemeanor is pending or being

22                   instituted against the person.

23   (5)     If the court has received a response from the office of the Commonwealth's attorney

24           or county attorney that prosecuted the case stating no objection to the application to

25           have the judgment vacated, or if one hundred twenty (120) days have elapsed since
26           the filing of the application and no response has been received, the court may,

27           without a hearing, vacate the judgment in the manner established in subsection (4)

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     UNOFFICIAL COPY                                                                   17 RS BR 396



 1           of this section.

 2   (6)     Upon entry of an order vacating and expunging a conviction, the original conviction

 3           shall be vacated and the record shall be expunged. The court and other agencies

 4           shall cause records to be deleted or removed from their computer systems so that

 5           the matter shall not appear on official state-performed background checks. The

 6           court and other agencies shall reply to any inquiry that no record exists on the

 7           matter. The person whose record is expunged shall not have to disclose the fact of

 8           the record or any matter relating thereto on an application for employment, credit, or
 9           other type of application. If the person is not prohibited from voting for any other

10           reason, the person's ability to vote shall be restored and the person may register to

11           vote.

12   (7)     An order vacating a conviction under this section shall not extend or revive an

13           expired statute of limitations, shall not constitute a finding of legal error regarding

14           the proceedings leading to or resulting in the conviction, shall not nullify any

15           findings of fact or conclusions of law made by the trial court or any appellate court

16           regarding the conviction, and shall not constitute a finding of innocence regarding

17           the conviction.

18   (8)     The Administrative Office of the Courts shall establish a form application to be

19           used in filing an application to have judgment vacated and records expunged.

20   (9)     The filing fee for an application to have judgment vacated and records expunged

21           shall be five hundred dollars ($500). The first fifty dollars ($50) of each fee

22           collected pursuant to this subsection shall be deposited into a trust and agency

23           account for deputy clerks and shall not be refundable.

24   (10) This section shall be retroactive.




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