KRS § 431.073 — KY Code / Title XL / Chapter 431 / Section 431.073
431.073 Certain felony convictions may be vacated and the records expunged -- Application -- Hearing -- Vacating conviction without a hearing -- Order to vacate and expunge -- Application form -- Fees -- Retroactivity
Status: in_force

431.073 Certain felony convictions may be vacated and the records expunged --

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.

(2) (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.

(4) (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.

(11) (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.