Who Can Have a Record Expunged and When?
People who have been arrested or convicted of criminal charges know that the consequences outlast the incarceration. Research shows that over 27 percent of formerly-incarcerated people are unemployed, higher than the unemployment rate during the Great Depression.
The possibility of expungement can help many people land better jobs and overcome the difficulty of transitioning into the free world. In this post, we’ll cover more about expungement.
Read on to learn more!
What Is the Effect of Different Forms of Expungement?
A person with a criminal record does not have to reveal it when applying for jobs or loans after expungement. Many states have enacted laws to facilitate expungement, with the criteria being different in different states. Once expunged, the court and police records are destroyed or sealed; you can’t access them except in very specific circumstances.
There is no federal law that governs expungement, which means you need to ask at the state level. Usually, there is a waiting period and the offense must not have been too severe. Some states will destroy physical records, but where state laws bar destruction, the records will be sealed.
The ultimate form of expungement is the Certificate of Actual Innocence. This is given if you are charged with a crime and the charges are dropped, or if a judge or jury finds you “not guilty”. If you get this certificate, your sealed records cannot be opened for any reason, because they should not have existed in the first place.
If you show proof of rehabilitation, you may also be able to have your records sealed. Here, you give evidence that you:
- lead an exemplary life
- have gotten help for the problems you had
- have shown remorse
- offered full restitution due to the victims
Finally, state officials can offer pardon, which does not erase your crime, but rather tells the world that you have been forgiven. With a pardon, however, you still have to disclose the information in legal documents. The pardon, however, mitigates the impact of the crime.
Benefits of Record Expungement
If your expungement petition is successful, you can legally and honestly say that you’ve never been accused, charged or convicted of a crime. The incident is written off and your state is restored to before you were accused, charged or convicted.
Employers, landlords or financiers are not allowed to ask about expunged convictions. That record cannot be used against you in employment or loan approval decisions, and won’t show up when someone runs a background check on you. Because of this, you can apply for better jobs, improving your standard of living.
Who Is Eligible to Have Their Records Expunged?
While specific guidelines and procedures differ, many states have similar criteria related to people who qualify to apply for expungement. They include:
- Types of crime – should be within state laws. Federal crimes cannot be expunged
- Criminal proceedings – should have been dismissed or the defendant acquitted or found not guilty. A few states allow convicted persons to look for expungement. Also applies in a person was released before being formally charged
- Waiting period – sufficient time has passed following arrest, charging or conviction
- Good behavior – the person has no new/pending offenses or DWI charges
- Restitution – fines or restitutive actions have been paid/done fully
- Programs – community service, probation or other court-mandated programs have been completed
- Age – minor’s records are easier to expunge in most states
The Expungement Process
If you have met all the conditions, you’ll need to file an application/petition for expungement, available from the probation department. You must provide a number of documents such as acceptance of service, certificate of eligibility, victim and prosecutor statements, consent and waiver of hearing, petitioner’s reply and victim checklist among others.
A prosecutor may challenge your petition by filing an objection before your hearing. The probation department will determine if you’re eligible and demonstrate your behavior to the court. The court may deny your application if any conditions are unmet.
1. Expunging a Felony
Serious felonies like sexual offenses and violent crimes are almost never eligible. For felonies, you must file the petition in the court where you were convicted, and the process is lengthy and more complicated. It is advisable to get an expungement lawyer to maximize your chance of succeeding.
2. Expunging a Misdemeanor
Misdemeanors are lesser crimes punishable by court-mandated community service, monetary fines or jail terms not exceeding one year. It is usually easier to clear first offenses by simply filing the petition and appearing in court (but not always).
More serious misdemeanors like some theft, assault or DUI charges are called wobblers because they can be treated as either felonies or misdemeanors. Most wobblers are ineligible for expungement.
3. Expunging a DUI
In some states, DUIs convictions cannot be expunged. Even where expungement is allowed, the sentence should not have involved any jail time, only probation. Additionally, your DUI probation must be completed and you must not have other criminal charges pending.
DUIs are crucial because they affect both your criminal and driving records. Expunging the criminal record does not change your driving record; any license restrictions or related penalties are handled at the Department of Motor Vehicles (or similar state agents). Getting a DUI and expungement lawyer can help clear both records.
4. Expunging Juvenile Records
Some states seal minors’ records automatically when they reach legal age. In others, you must make an official request by filing a petition in the county where you were convicted and pay a small fee. If the record is sealed, your history is treated as if you were never tried in the first place and you don’t have to reveal your criminal past when filling forms.
However, your record is visible or can be opened in certain circumstances, such as if you’re applying for a law enforcement job, or in a car insurance background check if you had a vehicle-related offense. Also, sealed records can be used to hand down stiffer penalties if you have later offenses as an adult.
Final Thoughts
If you’re thinking about applying for expungement, it may be helpful to get help from a lawyer who can advise on the applicable laws according to your situation. This lawyer will also help you obtain some of the more complex documentation and negotiate on your behalf before a judge, victims or the probation department.
Do you have any thoughts? Feel free to join the conversation below.
How Do I Clear My Record? What You Need to Know About Record Expungement
Did you know that over 73 million people in the US have a criminal record? According to the FBI, about 29.5% of people in the US have some sort of criminal record. A criminal record can impact your chances of getting a job, finding a place to live, or even getting into law school.
If you have a criminal record, it’s possible to get record expungement, but there are some things you need to know. It’s not an option for everyone and it doesn’t always mean anyone can find your record.
Keep reading to learn more about record expungement and whether it might be an option for you.
What is a Criminal Record?
A criminal record means different things to different people.
Some people say that any arrest or citation is a criminal record. Even if you get charged but aren’t convicted, it’s still considered a criminal record.
Others define criminal record more narrowly, and only consider someone who has been convicted of a crime as having a criminal record.
The definition depends on where you are getting the information from. The FBI, for example, keeps records on everyone arrested and fingerprinted
Even if the charges get dropped or you are found not guilty, that information is still maintained in the National Crime Information Center (NCIC).
What is Record Expungement?
It’s important to note that every state has their own rules for expunging your record. They also vary in their process, so for the most accurate information about your own case, you need to check the rules where you live.
In general, though, record expungement means that your criminal record gets wiped clean. An expungement is a legal process that removes arrests, charges, and convictions for minor offenses from your record. The records are destroyed and won’t show up in a background check (with some exceptions).
Even though the terms expungement and sealing are often considered to be the same thing, they are not the same . Expunging your record erases it but sealing your record only means that it won’t show up in a records search again. The record isn’t erased when it is sealed.
Can You Ever Truly Erase Your Record?
While you might get the courts to expunge your record, the information is likely still out there. News archives, search engines, and websites that compile mugshots are all still out there. What goes on the Internet is almost impossible to fully erase.
A simple search of your name might pull up news stories about your arrest, a picture of your mug shot, or other information about you and the offense. As more and more law enforcement agencies use social media and post information and pictures of offenders, you might have information included there too.
Can An Expunged Record Still Hurt You in the Future?
Even if your record gets expunged, it can still hurt your chances of getting a job. Many employers do Internet searches of prospective employees, potentially pulling up any lingering online records of your arrest.
They also often use private investigation companies to conduct background searches. Private companies often have their own databases with court information. It’s no guarantee that your companies will remove your information from their databases if it’s expunged.
There are some applications, such as for law school or for the legal bar, that will ask you about any criminal records, including ones expunged or sealed. If you have plans to practice law, such as being a trust attorney or defense attorney, a criminal record could hamper those chances.
You Can Get Deported Even with an Expunged Record
Immigration laws passed in 1996 made it easier for undocumented immigrants to get deported when they are convicted of a crime.
A conviction includes any case where a person pleads guilty to a crime or some kind of punishment is imposed. This could include a mandatory diversion program, for instance. Even if the record gets expunged or sealed, it can still be used as a justification for deportation.
It’s a good idea to seek out the advice of a defense attorney who can help you navigate the expungement process in your state and let you know if you’re eligible.
Help From Congress
Congress is trying to make it easier for individuals to have their records expunged.
The REDEEM Act, which stands for Record Expungement Designed to Enhance Employment, makes it easier for records to be sealed or expunged, especially for juveniles and non-violent adult offenders. The bill has bi-partisan support and has been introduced by Senators Cory Booker and Rand Paul.
Although the bill has bipartisan support, it has been over two years since it was introduced and it has not been signed into law yet.
If passed, it would make it easier and quicker to erase criminal records, improve the FBI background check process, and eliminate some of the rules prohibiting federal public assistance for convicted offenders.
A more accurate background check system for the FBI would help to eliminate incomplete or inaccurate records and improve the information included in these background checks.
The Bottom Line
Even though it’s virtually impossible to totally erase a criminal record, it’s still a good idea to take advantage of expunging your record if you’re eligible. You might still show up in online searches or on social media, but at least your record is removed from any official legal sources.
You can read more about record expungement and more on our blog.
Expungement: The Basics of Sealing Your Criminal Record
If you’ve been convicted of a crime, landing a quality job or finding an ideal rental property can often-times prove to be extremely difficult. If you find yourself in a situation where a background check is needed, and you are dreading what may pop up, expungement might be a good idea for you to pursue to seal your criminal record. With that being said, different states have contrasting laws and requirements for expungement eligibility. This depends on the nature of your crime, how long has it been since your conviction, and your previous criminal record, if any. If you have a juvenile record or a sex offense, there will be special requirements needed to file for an expungement depending on the state in which you were convicted.
*Please note in some states laws can differ by the county when it comes to expungement requirements. Record Gone is a great online source for determining your eligibility.
To start the expungement process you will first need to fill out and file a form or application. The court in which you are filing will have a list of documents needed. In most cases, you can obtain these documents from the county prosecutor’s office. Also, keep in mind you may first need to get approval from the prosecutor’s office before the court will hear your case. Again these rules vary by state so it’s best to spend a day at the county prosecutor’s office getting the necessary information directly from them.
Different states use different terminology like:
- Setting aside a conviction
- Expungement of records
- Cleaning your record with a dismissal
At the end of the day, these all essentially mean the same thing and produce the same result. If and when you do win an expungement decision the court will serve the papers to the department of corrections, your arresting agency, and your booking agency.
Remember you still need to convince the judge that you are worthy to have this erased from your record, so it is a good idea to hire a great criminal defense attorney and provide all information that shows you have moved past the incident and have behaved in a proper manner since. Perhaps have an employer or a colleague write a letter for you detailing your contributions to society and the positive impact you may be having on other people’s lives. This is especially important when it comes to having a felony expunged.
Felony expungements subsequently are much more difficult to obtain than misdemeanors. Severity or class of the felony, the state you were convicted in, and time passed since the arrest or conviction will all be factors during your expungement process. Most states require a one to five year period before you can file for a felony expungement. While after you have submitted your expungement and gone through the hearing process it can take anywhere from three months to one year depending on your case and the severity of it.
*If your felony does not qualify to be expunged you can still get a non-disclosure petition which potentially can block employers from viewing the felony on your record. One should hire a lawyer when dealing with a felony expungement and they can cost anywhere from around $1,500 to $3,000 considering what state you live in and what type of conviction you had.
If you are unable to afford an attorney, most states and counties provide free legal help. Best of luck in your expungement quest.
