UNOFFICIAL COPY 22 RS BR 94
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AN ACT relating to expungement. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
Section 1. KRS 431.073 is amended to read as follows: 3
(1) Any person who has been: 4
(a) Convicted of a Class D felony violation of KRS 17.175, 186.990, 194A.505, 5
194B.505, 217.181, 217.207, 217.208, 218A.140, 218A.1415, 218A.1416, 6
218A.1417, 218A.1418, 218A.1423, 218A.1439, 218A.282, 218A.284, 7
218A.286, 218A.320, 218A.322, 218A.324, 218A.500, 244.165, 286.11-057, 8
304.47-025, 324.990, 365.241, 434.155, 434.675, 434.850, 434.872, 511.040, 9
512.020, 514.030, 514.040, 514.050, 514.060, 514.065, 514.070, 514.080, 10
514.090, 514.100, 514.110, 514.120, 514.140, 514.150, 514.160, 516.030, 11
516.060, 516.090, 516.108, 517.120, 518.040, 522.040, 524.100, 525.113, 12
526.020, 526.030, 528.020, 528.040, 528.050, 530.010, or 530.050; 13
(b) Convicted of a series of Class D felony violations of one (1) or more statutes 14
enumerated in paragraph (a) of this subsection arising from a single incident; 15
(c) Granted a full pardon; or 16
(d) Convicted of a Class D felony, or an offense prior to January 1, 1975 which 17
was punishable by not more than five (5) years' incarceration, which was not a 18
violation of KRS 189A.010, 508.032, or 519.055, abuse of public office, a sex 19
offense, or an offense committed against a child, and did not result in serious 20
bodily injury or death; or of a series of felony offenses eligible under this 21
paragraph; 22
may file with the court in which he or she was convicted an application to have the 23
judgment vacated. The application shall be filed as a motion in the original criminal 24
case. The person shall be informed of the right at the time of adjudication. 25
(2) (a) A verified application to have the judgment vacated under this section shall be 26
filed no sooner than five (5) years after the completion of the person's 27 UNOFFICIAL COPY 22 RS BR 94
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sentence, or five (5) years after the successful completion of the person's 1
probation or parole, whichever occurs later. 2
(b) Upon the payment of the filing fee and the filing of the application, the Circuit 3
Court clerk shall serve a notice of filing upon the office of the 4
Commonwealth's attorney or county attorney that prosecuted the case and the 5
county attorney of the county where the judgment was entered. The office of 6
the Commonwealth's attorney or county attorney that prosecuted the case shall 7
file a response within sixty (60) days after being served with the notice of 8
filing. That time period may be extended for good cause, but the hearing on 9
the application to vacate the judgment shall occur no later than one hundred 10
twenty (120) days following the filing of the application. The inability to 11
determine the location of the crime victim shall constitute good cause for an 12
extension of time. No hearing upon the merits of the application shall be 13
scheduled until the Commonwealth's response has been filed, or if no 14
response is received, no later than one hundred twenty (120) days after the 15
filing of the application. 16
(c) In any case in which the Commonwealth objects that the application is grossly 17
incomplete, the court shall order the person or agency originating the 18
application to supplement the application. 19
(3) Upon the filing of the Commonwealth's response to an application, or if no response 20
is received, no later than one hundred twenty (120) days after the filing of the 21
application, the court shall set a date for a hearing and the Circuit Court clerk shall 22
notify the office of the Commonwealth's attorney or county attorney that prosecuted 23
the case. The office of the Commonwealth's attorney or county attorney that 24
prosecuted the case shall notify the victim of the crime, if there was an identified 25
victim. The Commonwealth's attorney or county attorney shall be authorized to 26
obtain without payment of any fee information from the Transportation Cabinet 27 UNOFFICIAL COPY 22 RS BR 94
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regarding the crime victim's address on file regarding any vehicle operator's license 1
issued to that person. 2
(4) (a) In an application pursuant to subsection (1)(d) of this section, upon the filing 3
of the Commonwealth's response objecting to the vacating of a judgment and 4
expungement of a record, the court shall schedule a hearing within one 5
hundred twenty (120) days of the Commonwealth's response. The prosecutor 6
shall specify in the objection the reasons for believing a denial of the 7
application is justified. At the hearing at which the applicant or his or her 8
attorney must be present, the applicant must prove by clear and convincing 9
evidence that: 10
1. Vacating the judgment and expunging the record is consistent with the 11
welfare and safety of the public; 12
2. The action is supported by his or her behavior since the conviction or 13
convictions, as evidenced that he or she has been active in rehabilitative 14
activities in prison and is living a law-abiding life since release; 15
3. The vacation and expungement is warranted by the interests of justice; 16
and 17
4. Any other matter deemed appropriate or necessary by the court to make 18
a determination regarding the petition for expungement is met. 19
(b) At the hearing, the applicant may testify as to the specific adverse 20
consequences he or she may be subject to if the application is denied. The 21
court may hear testimony of witnesses and any other matter the court deems 22
proper and relevant to its determination regarding the application. The 23
Commonwealth may present proof of any extraordinary circumstances that 24
exist to deny the application. A victim of any offense listed in the application 25
shall have an opportunity to be heard at any hearing held under this section. 26
(c) If the court determines that circumstances warrant vacation and expungement 27 UNOFFICIAL COPY 22 RS BR 94
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and that the harm otherwise resulting to the applicant clearly outweighs the 1
public interest in the criminal history record information being publicly 2
available, then the original conviction or convictions shall be vacated and the 3
records shall be expunged. The order of expungement shall not preclude a 4
prosecutor's office from retaining a nonpublic record for law enforcement 5
purposes only. 6
(5) 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, upon full payment of 9
the fee in subsection (11) of this section, order expunged all records in the custody 10
of the court and any records in the custody of any other agency or official, including 11
law enforcement records, if the court finds that: 12
(a) The person had not, after June 27, 2019, had a felony conviction vacated and 13
the record expunged pursuant to this section; 14
(b) The person had not in the five (5) years prior to the filing of the application to 15
have the judgment vacated been convicted of a felony or a misdemeanor; 16
(c) No proceeding concerning a felony or misdemeanor is pending or being 17
instituted against the person; and 18
(d) For an application pursuant to subsection (1)(d) of this section, the person has 19
been rehabilitated and poses no significant threat of recidivism. 20
(6) If the court has received a response from the office of the Commonwealth's attorney 21
or county attorney that prosecuted the case stating no objection to the application to 22
have the judgment vacated, or if one hundred twenty (120) days have elapsed since 23
the filing of the application and no response has been received from the victim or 24
the office of the Commonwealth's attorney or county attorney that prosecuted the 25
case, the court may, without a hearing, vacate the judgment in the manner 26
established in subsection (5) of this section. 27 UNOFFICIAL COPY 22 RS BR 94
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(7) Upon entry of an order vacating and expunging a conviction, the original conviction 1
shall be vacated and, upon full payment of the fee in subsection (11) of this section, 2
the record shall be expunged. The court and other agencies shall cause records to be 3
deleted or removed from their computer systems so that the matter shall not appear 4
on official state-performed background checks. The court and other agencies shall 5
reply to any inquiry that no record exists on the matter. The person whose record is 6
expunged shall not have to disclose the fact of the record or any matter relating 7
thereto on an application for employment, credit, or other type of application. If the 8
person is not prohibited from voting for any other reason, the person's ability to vote 9
shall be restored and the person may register to vote. 10
(8) An order vacating a conviction under this section shall not extend or revive an 11
expired statute of limitations, shall not constitute a finding of legal error regarding 12
the proceedings leading to or resulting in the conviction, shall not nullify any 13
findings of fact or conclusions of law made by the trial court or any appellate court 14
regarding the conviction, and shall not constitute a finding of innocence regarding 15
the conviction. 16
(9) The Administrative Office of the Courts shall establish a form application to be 17
used in filing an application to have judgment vacated and records expunged. 18
(10) The filing fee for an application to have judgment vacated and records expunged 19
shall be fifty dollars ($50), which shall be deposited into a trust and agency account 20
for deputy clerks and shall not be refundable. 21
(11) (a) Upon the issuance of an order vacating and expunging a conviction pursuant 22
to this section, the applicant shall be charged an expungement fee of two 23
hundred fifty dollars ($250), which may be payable by an installment plan in 24
accordance with KRS 534.020. 25
(b) When the order is issued, the court shall set a date, no sooner than eighteen 26
(18) months after the date of the order, by which the defendant must comply 27 UNOFFICIAL COPY 22 RS BR 94
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with the installment payment plan. The applicant shall be given notice of the 1
total amount due, the payment frequency, and the date by which all payments 2
must be made. The notice shall state that the expungement cannot be 3
completed until full payment is received, and that if the applicant has not 4
completed the installment payment plan by the scheduled date, he or she shall 5
appear on that date to show good cause as to why he or she is unable to satisfy 6
the obligations. Notwithstanding provisions of KRS 534.020 to the contrary, 7
no applicant shall be ordered to jail for failure to complete an installment plan 8
ordered pursuant to this section. 9
(c) The revenues and interest from the expungement fee shall be deposited in the 10
expungement fund created in KRS 431.0795. 11
(12) The court may waive all fees required by this section if the court finds that the 12
person is indigent. 13
(13) This section shall be retroactive. 14
Section 2. KRS 431.078 is amended to read as follows: 15
(1) Any person who has been convicted of: 16
(a) A misdemeanor, a violation, or a traffic infraction not otherwise classified as a 17
misdemeanor or violation, or a series of misdemeanors, violations, or traffic 18
infractions arising from a single incident; or 19
(b) A series of misdemeanors, violations, or traffic infractions not arising from a 20
single incident; 21
may petition the court in which he was convicted for expungement of his 22
misdemeanor or violation record within that judicial district, including a record of 23
any charges for misdemeanors, violations, or traffic infractions that were dismissed 24
or amended in the criminal action. The person shall be informed of the right at the 25
time of adjudication. 26
(2) Except as provided in KRS 218A.275(8) and 218A.276(8), the petition shall be 27 UNOFFICIAL COPY 22 RS BR 94
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filed no sooner than five (5) years after the completion of the person's sentence or 1
five (5) years after the successful completion of the person's probation, whichever 2
occurs later. 3
(3) Upon the filing of a petition, the court shall set a date for a hearing, no sooner than 4
thirty (30) days after the filing of the petition, and shall notify the county attorney; 5
the victim of the crime, if there was an identified victim; and any other person 6
whom the person filing the petition has reason to believe may have relevant 7
information related to the expungement of the record. Inability to locate the victim 8
shall not delay the proceedings in the case or preclude the holding of a hearing or 9
the issuance of an order of expungement. 10
(4) For a petition brought under subsection (1)(a) of this section, the court shall order 11
expunged all records in the custody of the court and any records in the custody of 12
any other agency or official, including law enforcement records, if at the hearing the 13
court finds that: 14
(a) The offense was not a sex offense or an offense committed against a child; 15
(b) The person had not in the five (5) years prior to the filing of the petition for 16
expungement been convicted of a felony or a misdemeanor; 17
(c) No proceeding concerning a felony or misdemeanor is pending or being 18
instituted against the person; and 19
(d) The offense is not one subject to enhancement for a second or subsequent 20
offense or the time for such an enhancement has expired. 21
(5) For a petition brought under subsection (1)(b) of this section, the court may order 22
expunged all records in the custody of the court and any records in the custody of 23
any other agency or official, including law enforcement records, if at the hearing the 24
court finds that: 25
(a) The offense was not a sex offense or an offense committed against a child; 26
(b) The person had not in the five (5) years prior to the filing of the petition for 27 UNOFFICIAL COPY 22 RS BR 94
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expungement been convicted of a felony or a misdemeanor; 1
(c) No proceeding concerning a felony or misdemeanor is pending or being 2
instituted against the person; and 3
(d) The offense is not one subject to enhancement for a second or subsequent 4
offense or the time for such an enhancement has expired. 5
(6) Upon the entry of an order to expunge the records, the proceedings in the case shall 6
be deemed never to have occurred; the court and other agencies shall cause records 7
to be deleted or removed from their computer systems so that the matter shall not 8
appear on official state-performed background checks; the persons and the court 9
may properly reply that no record exists with respect to the persons upon any 10
inquiry in the matter; and the person whose record is expunged shall not have to 11
disclose the fact of the record or any matter relating thereto on an application for 12
employment, credit, or other type of application. 13
(7) The filing fee for a petition under this section shall be one hundred dollars ($100). 14
The first fifty dollars ($50) of each fee collected pursuant to this subsection shall be 15
deposited into a trust and agency account for deputy clerks and shall not be 16
refundable. The court may waive the filing fee required by this section if the court 17
finds that the person is indigent. 18
(8) Copies of the order shall be sent to each agency or official named therein. 19
(9) Inspection of the records included in the order may thereafter be permitted by the 20
court only upon petition by the person who is the subject of the records and only to 21
those persons named in the petition. 22
(10) This section shall be deemed to be retroactive, and any person who has been 23
convicted of a misdemeanor prior to July 14, 1992, may petition the court in which 24
he was convicted, or if he was convicted prior to the inception of the District Court 25
to the District Court in the county where he now resides, for expungement of the 26
record of one (1) misdemeanor offense or violation or a series of misdemeanor 27 UNOFFICIAL COPY 22 RS BR 94
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offenses or violations arising from a single incident, provided that the offense was 1
not one specified in subsection (4) and that the offense was not the precursor 2
offense of a felony offense for which he was subsequently convicted. This section 3
shall apply only to offenses against the Commonwealth of Kentucky. 4
(11) As used in this section, "violation" has the same meaning as in KRS 500.080. 5
(12) Any person denied an expungement prior to June 25, 2013, due to the presence of a 6
traffic infraction on his or her record may file a new petition for expungement of the 7
previously petitioned offenses, which the court shall hear and decide under the 8
terms of this section. No court costs or other fees, from the court or any other 9
agency, shall be required of a person filing a new petition under this subsection. 10
Section 3. KRS 431.079 is amended to read as follows: 11
(1) Every petition or application filed seeking expungement of a conviction shall 12
include a certification of eligibility for expungement. The Department of Kentucky 13
State Police and the Administrative Office of the Courts shall certify that the 14
agencies have conducted a criminal background check on the petitioner and whether 15
or not the petitioner is eligible to have the requested record expunged. The 16
Department of Kentucky State Police shall promulgate administrative regulations to 17
implement this section, in consultation with the Administrative Office of the 18
Courts. The court may waive the fee required for a certification of eligibility 19
pursuant to this section if the court finds that the person is indigent. 20
(2) Nothing in this section shall be construed to prohibit the expungement of a case 21
ordered by a court of competent jurisdiction. 22
(3) For the purposes of this section, KRS 431.073, 431.076, and 431.078, 23
"expungement" means the removal or deletion of records by the court and other 24
agencies which prevents the matter from appearing on official state-performed 25
background checks. 26