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 Attorney
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.
Expungement Law - US
- Criminal Expungement - Definition
Criminal “Expungement” is the process of going to court to ask a judge to seal a criminal record. When a record is sealed, it does not show up in a criminal background check. It is important to remember that a sealed record is not destroyed. The police, immigration officials, and other public officials may still see sealed court files for certain purposes.
- Electronic Privacy Information Center (EPIC) - Expungement
The social consequences of a criminal record can effectively lead to the denial of an individual's right to civic participation. Life, subsequent to an arrest, is permanently altered. Regardless of whether an individual has been convicted and the overall outcome in court, an arrest or citation will typically appear on a criminal record. Therefore, even a person who has had the charges against them dropped may be subject do a degree of social public ostracism and a de facto public finding of guilt.
- Expungement - Overview
In the common law legal system, an expungement proceeding is a type of lawsuit in which the subject of a prior criminal investigation or proceeding seeks that the records of that earlier process be sealed or destroyed, thereby restoring the subject's name. If successful, the records are said to be "expunged". Black's Law Dictionary defines "expungement of record" as the "Process by which record of criminal conviction is destroyed or sealed after the expiration of time." While expungement deals with an underlying criminal record, it is a civil action in which the subject is the petitioner or plaintiff asking a court to declare that the records be expunged.
- Expungement of DNA Records - FBI
These procedures are intended for expungement of DNA records resulting from a conviction for a qualifying federal or District of Columbia offense, as defined in 42 U.S.C. 14132(d)(1)(B) or resulting from an arrest under the authority of the United States. These procedures do not apply to the expungement from the National DNA Index System of DNA records resulting from state or Department of Defense convictions or arrests. Individuals who wish information on how to expunge a state arrest or conviction should contact the appropriate state or the Department of Defense.
- Special Probation and Expungement Procedures for Drug Possessors
If the case against a person found guilty of an offense under section 404 of the Controlled Substances Act (21 U.S.C. 844) is the subject of a disposition under subsection (a), and the person was less than twenty-one years old at the time of the offense, the court shall enter an expungement order upon the application of such person. The expungement order shall direct that there be expunged from all official records, except the nonpublic records referred to in subsection (b), all references to his arrest for the offense, the institution of criminal proceedings against him, and the results thereof.
Organizations Related to Expungement Law
- Citizens United for Rehabilitation of Errants
Advocacy on behalf of the federal inmate population is the central focus of Federal CURE, Inc. (FedCURE). Realizing that successful advocacy can only occur when society has been enlightened about federal prison reality, FedCURE seeks to create a paradigm where elected officials and American society have a clear understanding of the issues confronted by the federal inmate population. Reducing crime in our communities requires society's involvement so that the federal criminal justice system can effectively address escalating crime rates through the adoption of alternative sentencing options in the federal court system; facilitate transitional services during reintegration into the community; and reintroduce effective rehabilitative programming into the federal prison system thus engendering positive changes in the lives of those incarcerated within.
- National Association of Criminal Defense Lawyers (NACDL) - Expungement
The National Association of Criminal Defense Lawyers (NACDL) is the preeminent organization in the United States advancing the mission of the nation's criminal defense lawyers to ensure justice and due process for persons accused of crime or other misconduct. A professional bar association founded in 1958, NACDL's more than 12,800 direct members -- and 94 state, local, and international affiliate organizations with another 35,000 members -- include private criminal defense lawyers, public defenders, active U.S. military defense counsel, law professors and judges committed to preserving fairness within America's criminal justice system.
Publications Related to Expungement Law
- Juvenile Records Expungement
Juvenile records have far-reaching implications and often follow a young offender into adulthood. This manual provides juvenile defense attorneys and advocates with information about the accessibility of juvenile records, the lasting consequences of having a juvenile record on file, and the standard process for petitioning the court for an expungement.
- Relief from the Collateral Consequences of a Criminal Conviction
A collection of individual state documents that can be downloaded; includes state law regarding loss of rights due to a felony conviction, process of restoration, pardon/expungement information, and contact information of corresponding agencies.
Articles on HG.org Related to Expungement Law
- Sealing of Criminal Records to Restrict Their Availability Across the StateIf you do not want to be reminded of your criminal record every now and then, then getting it expunged would be a great option for you.
- Amendments to the Texas Expungement Statute May Help Clients Erase More MistakesChanges to the Texas expungement statute may open opportunity for persons to expunge individual offenses arising from the same arrest event.
- Will Texas H.B. 3016 Change the Way Criminal Lawyers Defend DWI Cases?A new Texas law provides for sealing certain DWI convictions. The question is whether the new law will change the way criminal defense lawyers defend DWIs.
- Expungement in New JerseyHaving a record expunged is an important step for eligible persons who have been convicted of a misdemeanor and have completed their sentence or paid their fine. Having a criminal record can lead to many issues, so it is in your best interest to expunge it as soon as possible.
- Expungement for a FelonyLiving with a criminal record can hamper your ability to secure a job, rent a house or apartment, or build meaningful relationships with others. This can make it feel like your sentence continued even after you completed its terms. Depending on your circumstances, having your record expunged could be a viable option.
- How Long Will an Expungement Take in New Jersey?Your criminal record does not have to impact your life forever. Depending on your circumstances, such as the number of years since your conviction, the nature of the offense, and whether you have been convicted of other offenses since, it may be possible for you to have your conviction expunged.
- Reasons to Expunge a Criminal RecordWhen a person has been convicted of a crime, he or she usually acquires a criminal record which can be accessed by landlords, potential employers and members of the general record. In order to conceal this record of past indiscretions, some criminal defendant decide to have their criminal record expunged.
- Theft Offenses in St. Petersburg, Clearwater, and TampaTheft involves the unlawful taking of, or using, the property of another person, or endeavoring to do so. Theft offenses in Florida can be prosecuted as either felonies or misdemeanors depending on the nature of the item taken, the value of the item taken, or the number of prior theft convictions an accused person has.
- Am I Eligible for an Expungement under Penal Code 1203.4 in California?Convicted of a crime? Expunge your conviction under Penal Code § 1203.4. If granted in court, after your conviction is expunged it will allow you to reopen your case and set aside the conviction. Such convictions are either misdemeanor or certain types of felonies.
- Kentucky to Allow Expungement of Certain Class D Felonies for First TimeKentucky’s new felony expungement law goes into effect on July 15, 2016 and will be retroactive. House Bill 40 passed in April 2016 and will allow individuals with certain Class D felonies and non-indicted felony charges to petition Kentucky courts for expungement. Before House Bill 40, no felonies in Kentucky could be expunged.
- All Criminal Law Articles
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