431.073 Certain felony convictions may be vacated and the records expunged --
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/ky/431-073A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Application -- Hearing -- Vacating conviction without a hearing -- Order to
vacate and expunge -- Application form -- Fees -- Retroactivity.
(1)Any person who has been:
(a)Convicted of a Class D felony violation of KRS 17.175, 186.990, 194A.505,
194B.505, 217.181, 217.207, 217.208, 218A.140, 218A.1415, 218A.1416,
218A.1417, 218A.1418, 218A.1423, 218A.1439, 218A.282, 218A.284,
218A.286, 218A.320, 218A.322, 218A.324, 218A.500, 244.165, 286.11-057,
304.47-025, 324.990, 365.241, 434.155, 434.675, 434.850, 434.872, 511.040,
512.020, 514.030, 514.040, 514.050, 514.060, 514.065, 514.070, 514.080,
514.090, 514.100, 514.110, 514.120, 514.140, 514.150, 514.160, 516.030,
516.060, 516.090, 516.108, 517.120, 518.040, 522.040, 524.100, 525.113,
526.020, 526.030, 528.020, 528.040, 528.050, 530.010, or 530.050;
(b)Convicted of a series of Class D felony violations of one
(1)or more statutes
enumerated in paragraph
(a)of this subsection arising from a single incident;
(c)Granted a full pardon; or
(d)Convicted of a Class D felony, or an offense prior to January 1, 1975 which
was punishable by not more than five
(5)years' incarceration, which was not a
violation of KRS 189A.010, 508.032, or 519.055, abuse of public office, a sex
offense, or an offense committed against a child, and did not result in serious
bodily injury or death; or of multiple felony offenses eligible under this
paragraph;
may file with the court in which he or she was convicted an application to have the
judgment vacated. The application shall be filed as a motion in the original criminal
case. The person shall be informed of the right at the time of adjudication.
(a)A verified application to have the judgment vacated under this section shall be
filed no sooner than five
(5)years after the completion of the person's
sentence, or five
(5)years after the successful completion of the person's
probation or parole, whichever occurs later.
(b)Upon the payment of the filing fee and the filing of the application, the Circuit
Court clerk shall serve a notice of filing upon the office of the
Commonwealth's attorney or county attorney that prosecuted the case and the
county attorney of the county where the judgment was entered. The office of
the Commonwealth's attorney or county attorney that prosecuted the case
shall file a response within sixty
(60)days after being served with the notice
of filing. That time period may be extended for good cause, but the hearing on
the application to vacate the judgment shall occur no later than one hundred
twenty
(120)days following the filing of the application. The inability to
determine the location of the crime victim shall constitute good cause for an
extension of time. No hearing upon the merits of the application shall be
scheduled until the Commonwealth's response has been filed, or if no
response is received, no later than one hundred twenty
(120)days after the
filing of the application.
(c)In any case in which the Commonwealth objects that the application is grossly
incomplete, the court shall order the person or agency originating the
application to supplement the application.
(3)Upon the filing of the Commonwealth's response to an application, or if no
response is received, no later than one hundred twenty
(120)days after the filing of
the application, the court shall set a date for a hearing and the Circuit Court clerk
shall notify the office of the Commonwealth's attorney or county attorney that
prosecuted the case. The office of the Commonwealth's attorney or county attorney
that prosecuted the case shall notify the victim of the crime, if there was an
identified victim. The Commonwealth's attorney or county attorney shall be
authorized to obtain without payment of any fee information from the
Transportation Cabinet regarding the crime victim's address on file regarding any
vehicle operator's license issued to that person.
(a)In an application pursuant to subsection (1)(d) of this section, upon the filing
of the Commonwealth's response objecting to the vacating of a judgment and
expungement of a record, the court shall schedule a hearing within one
hundred twenty
(120)days of the Commonwealth's response. The prosecutor
shall specify in the objection the reasons for believing a denial of the
application is justified. At the hearing at which the applicant or his or her
attorney must be present, the applicant must prove by clear and convincing
evidence that:
1. Vacating the judgment and expunging the record is consistent with the
welfare and safety of the public;
2. The action is supported by his or her behavior since the conviction or
convictions, as evidenced that he or she has been active in rehabilitative
activities in prison and is living a law-abiding life since release;
3. The vacation and expungement is warranted by the interests of justice;
and
4. Any other matter deemed appropriate or necessary by the court to make
a determination regarding the petition for expungement is met.
(b)At the hearing, the applicant may testify as to the specific adverse
consequences he or she may be subject to if the application is denied. The
court may hear testimony of witnesses and any other matter the court deems
proper and relevant to its determination regarding the application. The
Commonwealth may present proof of any extraordinary circumstances that
exist to deny the application. A victim of any offense listed in the application
shall have an opportunity to be heard at any hearing held under this section.
(c)If the court determines that circumstances warrant vacation and expungement
and that the harm otherwise resulting to the applicant clearly outweighs the
public interest in the criminal history record information being publicly
available, then the original conviction or convictions shall be vacated and the
records shall be expunged. The order of expungement shall not preclude a
prosecutor's office from retaining a nonpublic record for law enforcement
purposes only.
(5)The court may order the judgment vacated, and if the judgment is vacated the court
shall dismiss with prejudice any charges which are eligible for expungement under
subsection
(1)of this section or KRS 431.076 or 431.078, and, upon full payment of
the fee in subsection
(11)of this section, order expunged all records in the custody
of the court and any records in the custody of any other agency or official, including
law enforcement records, if the court finds that:
(a)The person had not in the five
(5)years prior to the filing of the application to
have the judgment vacated been convicted of a felony or a misdemeanor;
(b)No proceeding concerning a felony or misdemeanor is pending or being
instituted against the person; and
(c)For an application pursuant to subsection (1)(d) of this section, the person has
been rehabilitated and poses no significant threat of recidivism.
(6)If the court has received a response from the office of the Commonwealth's attorney
or county attorney that prosecuted the case stating no objection to the application to
have the judgment vacated, or if one hundred twenty
(120)days have elapsed since
the filing of the application and no response has been received from the victim or
the office of the Commonwealth's attorney or county attorney that prosecuted the
case, the court may, without a hearing, vacate the judgment in the manner
established in subsection
(5)of this section.
(7)Upon entry of an order vacating and expunging a conviction, the original conviction
shall be vacated and, upon full payment of the fee in subsection
(11)of this section,
the record shall be expunged. The court and other agencies shall cause records to be
deleted or removed from their computer systems so that the matter shall not appear
on official state-performed background checks. The court and other agencies shall
reply to any inquiry that no record exists on the matter. The person whose record is
expunged shall not have to disclose the fact of the record or any matter relating
thereto on an application for employment, credit, or other type of application. If the
person is not prohibited from voting for any other reason, the person's ability to
vote shall be restored and the person may register to vote.
(8)An order vacating a conviction under this section shall not extend or revive an
expired statute of limitations, shall not constitute a finding of legal error regarding
the proceedings leading to or resulting in the conviction, shall not nullify any
findings of fact or conclusions of law made by the trial court or any appellate court
regarding the conviction, and shall not constitute a finding of innocence regarding
the conviction.
(9)The Administrative Office of the Courts shall establish a form application to be
used in filing an application to have judgment vacated and records expunged.
(10)The filing fee for an application to have judgment vacated and records expunged
shall be fifty dollars ($50), which shall be deposited into a trust and agency account
for deputy clerks and shall not be refundable.
(a)Upon the issuance of an order vacating and expunging a conviction pursuant
to this section, the applicant shall be charged an expungement fee of two
hundred fifty dollars ($250), which may be payable by an installment plan in
accordance with KRS 534.020.
(b)When the order is issued, the court shall set a date, no sooner than eighteen
(18)months after the date of the order, by which the defendant must comply
with the installment payment plan. The applicant shall be given notice of the
total amount due, the payment frequency, and the date by which all payments
must be made. The notice shall state that the expungement cannot be
completed until full payment is received, and that if the applicant has not
completed the installment payment plan by the scheduled date, he or she shall
appear on that date to show good cause as to why he or she is unable to satisfy
the obligations. Notwithstanding provisions of KRS 534.020 to the contrary,
no applicant shall be ordered to jail for failure to complete an installment plan
ordered pursuant to this section.
(c)The revenues and interest from the expungement fee shall be deposited in the
expungement fund created in KRS 431.0795.
(12)This section shall be retroactive.