Expungement

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Expungement is the official sealing of an individual’s records of arrest and conviction. This must be done by a court of law, and serves the purpose of making such records unavailable to people doing a background check. Because most employers, and many landlords, commonly ask applicants if they have a criminal record, and may not hire or rent to someone with a criminal past, the process of expungement has become more popular. To explore this concept, consider the following expungement definition.

Definition of Expungement

Noun

  1. The sealing, erasing, or deleting of an individual’s criminal record.

Origin

1595-1605        Latin expungere

What is Expungement

Having a criminal record can have a detrimental impact on many areas of a person’s life, as employers or property owners can access criminal records when deciding whether to hire or renting to that person. A criminal record can also keep an individual from obtaining certain public benefits. The law provides for individuals who had a minor brush with the law, and no other criminal history, allowing their records to be sealed, thereby giving them a second chance. Laws governing expungement very significantly by state, each having its own eligibility requirements and process for having criminal records sealed.

Expungement Laws

Expungement laws in most states allow for sealing an individual’s criminal record, though not for such records to be completely destroyed or permanently deleted. The law does require individuals to answer truthfully to questions such as “Have you ever been convicted of a crime,” on employment applications, rental or lease applications, and other applications, such as weapons permits. Lying on such an application may legally end in termination from employment, denial of a lease or eviction, and even criminal consequences for failing to disclose a criminal history on a firearm application.

Once a judge grants an expungement, however, the individual is no longer required to answer “yes” on most types of application. In most states, expungement laws specifically require the individual disclose the criminal history in certain circumstances, including licensure or employment in education or childcare positions, or for certain government jobs.

The expungement laws for each state also outline which offenses are eligible for expungement. These offenses range from parking fines and traffic infractions, to first time felony offenses. Once sealed, expungement laws require the court case, and pertinent information contained in the court file, to be removed from public record, allowing the offender to deny or fail to disclose the fact that he has been arrested or charged with the crime.

For example:

Rosa has a DUI conviction that is three years old. She has completed her probation and community service as ordered by the court, but she has to continue disclosing the conviction on job applications, which has kept her unemployed. Rosa has never been in trouble with the law, except on that one occasion, and has kept her nose clean since. If Rosa has her DUI conviction expunged, she will legally be able to answer “No” to the question, “Have you ever been convicted of a criminal offense?”

This right of non-disclosure applies only to the offense expunged. If the individual commits another crime, and it has not been expunged, he must disclose the offense when asked. In many jurisdictions, committing another crime after expungement has the effect of un-sealing the previous conviction.

Eligibility for Expungement

While an expungement can provide an individual with a fresh start, the process differs by jurisdiction. It is important for anyone considering an expungement to find out the specific eligibility requirements and process in the state in which the crime was committed, or in which he was arrested or convicted. In most cases, the type of crime is the first consideration, as serious offenses are typically not eligible for expungement. Other conditions that must be met for expungement in most states include:

  • Time Requirement – in all states, a minimum period of time must have passed since the individual completed any sentence imposed for the crime.
  • Priors and New Offenses – the individual must have no prior arrests or convictions, and none since the crime for which the expungement is requested.
  • Complete Proceedings – all criminal proceedings on any matter must have ended, and none pending.
  • Complete Probation – the individual must have completed probation and any other sentence imposed without further incidents or violations.

Crimes Not Eligible for Expungement

All states define certain crimes for which expungement is never an option. Some states do not allow expungement for any felony offenses.

Record Expungement

In most jurisdictions, record expungement allows all records on file with the court, detention center, correctional facility, law enforcement, and criminal justice agency to be sealed. This includes all information related to the individual’s arrest, detention, trial, and disposition. Any person meeting the eligibility requirements of the state in which the crime was committed may request a record expungement by filing a petition with the court.

Certificate of Actual Innocence

In some jurisdictions, it is possible to receive a Certificate of Actual Innocence, which is essentially the highest form of expungement. This Certificate differs from an expungement in that it not only seals the record, but also acknowledges that the individual was innocent of the crime to begin with, and should never have been arrested.

For example:

Jose is arrested and charged with armed robbery. Before trial, a witness identifies another man as the suspect, and subsequent evidence, including fingerprints, prove the other man committed the crime. Although Jose was not convicted of the crime, the arrest and charge of armed robbery will show up on background checks, which could certainly cause havoc in his life.

If Jose petitions the court for, and is granted, a Certificate of Actual Innocence, the record will be sealed, and he will have a court document definitively stating he did not commit the crime, and should never have been arrested.

Expungement of Juvenile Records

Juvenile records are not considered criminal records once the individual has reached the age of majority. This doesn’t keep them from cropping up in background checks, however, and so they tend to follow, and cause problems for, some people into adulthood. For this reason, each state has laws allowing expungement of juvenile records.

In some states, such a record expungement is automatic, occurring when the individual turns 18. It is important, however, for the individual to check to be sure it has been done. Whether juvenile records are actually destroyed or only sealed also varies by state. Expungement of juvenile records is done to allow the offender to enter adulthood with a clean slate. This shields a young person from beginning his adult life with the negative effects that are inherent in having a criminal record.

Felony Expungement

Felony expungement is possible in some jurisdictions, if the crime is a lower level offense such as drug possession. When the crime is more severe, felony expungement may be more difficult, or not allowed at all. The type of sentence handed down for the felony will also affect the eligibility of a felony expungement request. For example, many states do not allow felony expungement if the individual was sentenced to prison. However, a few states allow a person who has served a prison sentence to obtain an expungement if he can show that an adequate amount of time has passed between the charge and the request, with no subsequent contact with law enforcement.

Expungement vs. Pardon

In some states, the terms expungement and pardon are used interchangeably, though there is a big difference between the two. A pardon serves the purpose of essentially reversing the conviction and sentencing, and may happen at any time in the legal process, from the trial itself, to the period in which the individual is incarcerated, or even years later. In fact, many states have a time requirement, meaning a pardon will not be considered in most cases until a certain number of years has passed after fulfillment of the sentence.

What a pardon does not do is seal or expunge the individual’s record. The conviction will still show up on background checks, though the individual will have a pardon to show that he has been essentially forgiven by the Governor or President, depending on the jurisdiction. State level crimes can only be pardoned by the Governor of the state, and federal crimes must be pardoned by the President of the United States.

Expungement does not reverse any conviction or sentencing, but seals the records of the case. The individual must serve out the sentence imposed after his conviction, but once an expungement is granted, it will no longer appear on public records. While expungement is available only after the individual has completed his sentence, it is possible to obtain a pardon to avoid conviction, or to avoid or shorten sentencing. When considering expungement vs. pardon, it is important to understand that obtaining a pardon is a political process, and expungement is a judicial process.

Expungement Process

The expungement process is different in every state. In all cases, a petition for expungement must be filed with the court, and usually a copy of the petition must be served on the law enforcement agency that handled the case, and the prosecutor or district attorney. Most jurisdictions require the petitioner to provide certain documents to satisfy the requirement of no other crimes, such as an official fingerprint check and law enforcement background check. In some jurisdictions, a hearing must be held before the judge will make a decision as to whether to grant an expungement.

A judge will not approve an expungement unless the petitioner has fulfilled all provisions of his sentencing for the crime, and provided all of the necessary documentation to show that he has had no other run-ins with the law. Depending on how busy the court calendar is in the petitioner’s jurisdiction, obtaining an expungement may take as long as a year.

Timing of an Expungement

How long after a criminal charge or conviction an individual must wait before submitting a petition for expungement varies by state. In most jurisdictions, the individual was acquitted, or the charges were dismissed, an expungement can be requested immediately. If the individual was convicted, he may be able to request an expungement as soon as all provisions of his sentence have been carried out, including the payment of fines and restitution. Timing of an expungement varies so greatly, depending on the crime, the outcome of charges and/or prosecution, and the state.

Costs of an Expungement

Petitioning the court for an expungement is not without monetary expense. Most courts require a filing fee be paid at the time the petition is filed with the court. This varies by state, and may be anywhere from $50-$150 or more. In most cases, a low income individual may be able to obtain a fee waiver, which allows the petition to be filed at no cost. It is not required that the petitioner hire an attorney, but because expungement can be a complex process, it may be a good option. Many attorneys who handle expungement charge a flat fee, often ranging from $500-$1,000 dollars. There may be other fees for obtaining certain documents and fingerprint verification.

Related Legal Terms and Issues

  • Acquit – To relieve someone from a criminal charge; to declare not guilty.
  • Authority – The right or power to make decisions, to give orders, or to control something or someone.
  • Criminal Charge – A formal accusation by a prosecuting authority that an individual has committed a crime.
  • Criminal Proceedings – A legal process to prosecute an individual charged with the commission of a crime.
  • Deposition – The out-of-court sworn oral testimony by a witness, which is transcribed into writing for use in a legal proceeding. The witness is questioned by the attorneys for both parties, and no judge is present.
  • Hearing – A proceeding before the court at which an issue of fact or law is heard, evidence presented, and a decision made.
  • Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
  • Offense – A violation of law or rule, the committing of an illegal act.
  • Petitioner – The individual who initiates legal proceedings by filing a petition, also referred to as “plaintiff” in some cases.
  • Trial – A formal presentation of evidence before a judge and jury for the purpose of determining guilt or innocence in a criminal case, or to make a determination in a civil matter.