What is Expungement Law?

Expungement law deals with the state court procedures for removing criminal records from public view. With few exceptions, arrest and conviction information is available for anyone to see by simply going to the courthouse and performing a public records search. This information can also be viewed online using any number of private criminal records databases. For those who thought they had paid their debt to society and left their legal troubles in the past, this can be a real problem. Old criminal records can be found by prospective employers, landlords, professional licensing boards, colleges and universities, as well as police officers, prosecutors, and judges in current court proceedings.

The best way to ensure an old mistake does not continue to harm an individual's reputation and professional opportunities is to have the record expunged. The effect of an expungement varies by state, as does the terminology used to describe the process. A true expungement means that the court record is physically destroyed and no longer exists. Record sealing, on the other hand, means that the court will mark the record confidential and prohibit the public from viewing it, but the actual record is preserved. In a few states, the process is known as a "set aside." Setting aside a conviction typically has the same effect as sealing it, but it can also refer to modifying the language of a judgment so the order is no longer considered a conviction.

Expunging Records of Arrest

Some of the worst examples of old criminal records resulting in negative consequences in an individual's life involve records that the individual did not even know existed. This usually comes about when the person was arrested or issued a citation, but the case was later resolved in a manner that did not produce a conviction. The charges may have been dropped, reduced pursuant to a plea bargain, or the person may have taken the case to trial and obtained an acquittal. In any of these situations, it would be logical to assume that records of the incident are no longer available to the public. Unfortunately, even if there was never a conviction, records of the arrest may exist.

Arrest records have nothing to do with guilt or innocence of the underlying offense. They only establish that the police conducted an arrest. Even if the police were completely mistaken and the matter was eventually cleared up, the arrest itself can be enough to deter a hiring manager from extending a job offer, or a bank officer from approving a loan. There is no reason to wait until an arrest record is discovered. At that juncture, it may be too late to explain the situation, as the opportunity sought may have already gone to another candidate. Expunging the arrest record will avoid the entire problem. In most jurisdictions, arrest records can be expunged in as little as 30 days.

Convictions that Qualify for Expungement

If an individual was convicted, either by pleading guilty or being found guilty at trial, then the expungement process becomes more complex. Again, each state has enacted its own requirements. But generally, all misdemeanors and some serious felonies can be expunged. In order to qualify, the person seeking an expungement must show that he or she has complied with every aspect of the sentence imposed by the judge, including the successful completion of probation or parole. There will also be a waiting period. The length of the waiting period depends on the nature of the conviction, and there can be no new arrests or convictions during this time. Finally, there is usually a filing fee to be paid when the petition for expungement is submitted.

Updating Agency Databases

Once an expungement has been granted, the court will seal or destroy the criminal records in its possession. But what about the agencies and organizations that have previously entered the conviction into their databases? In many states, it is the individual's responsibility to submit a copy of the expungement order to these entities along with a request that they update their records accordingly. Individuals or their attorneys may need to disseminate proof of the expungement to other courts, prosecuting attorney offices, the department of motor vehicles, family services agencies, and so forth.

Convincing an agency to honor an expungement order can raise issues of jurisdiction and comity. For example, the record of a state felony conviction may appear in the FBI database, to be found by employers or others conducting a background check. After expunging such a conviction, a copy of the court order instructing that all records must be destroyed should therefore be sent to the FBI. However, because the FBI is a federal agency, it is not bound to follow an order issued by a state court. To resolve issues like this, it is wise to hire an attorney not only to obtain the expungement order, but also to make sure the order is distributed to, and recognized by, the appropriate agencies.

Contact a Record Expungement Lawyer

If you were previously charged with a crime, records of the incident may still exist. These records are available to the public and they can become a source of difficulty or embarrassment in the future. Get in touch with a local attorney today to learn if your records qualify for expungement.

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