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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 seal 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.

A very real distinction exists between an expungement and a pardon. When an expungement is granted, the person whose record is expunged may, for most purposes, treat the event as if it never occurred. A pardon (also called “executive clemency”), on the other hand, does not “erase” the event. Rather, it constitutes forgiveness. In the United States, an expungement can be granted only by a judge, while a pardon can be granted only by a governor (for state law offenses) or the President (for federal offenses).

Each jurisdiction whose law allows expungement has its own definitions of expungement proceedings. Generally, expungement is the process to "remove from general review" the records pertaining to a case. In many jurisdictions, however, the records may not completely "disappear" and may still be available to law enforcement, to sentencing judges on subsequent offenses, and to corrections facilities to which the individual may be sentenced on subsequent convictions.

Who can get a court record expunged?

Eligibility for an expungement of an arrest, investigation, detention, or conviction record will be based on the law of the jurisdiction in which the record was made. Ordinarily, only the subject of the record may ask that the record be expunged. Often, the subject must meet a number of conditions before the request will be considered.

Requirements often include one or more of the following:

  • Fulfilling a waiting period between the incident and expungement;
  • Having no intervening incidents;
  • Having no more than a specified number of prior incidents;
  • That the conviction be of a nature not considered to be too serious;
  • That all terms of the sentence be completely fulfilled;
  • That no proceedings be pending;
  • That the incident was disposed without a conviction; and
  • That the petitioner complete probation without any incidents.


In some jurisdictions, all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person's detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system can be expunged. Each state sets its own guidelines for what records can be expunged, or for whether expungements are available at all. The petitioner requesting an expungement of all or part of their record will have to complete forms and instructions to submit to the appropriate authority. The petitioner may choose to hire an attorney to guide them through the process, or he/she can decide to represent themselves. This is called appearing pro se.

Most jurisdictions have laws which allow - or possibly even require - the expungement of juvenile records once the juvenile reaches a certain age. In some cases, the records are destroyed; sometimes they simply are "sealed." The purpose of these laws is to allow a minor who was accused of criminal acts, or in the language of many juvenile courts, "delinquent acts," to erase his record, typically at the age of 17 or 18. The idea is to allow the juvenile offender to enter adulthood with a "clean slate," shielding him or her from the negative effects of having a criminal record.

United Kingdom

In the United Kingdommarker the term "spent conviction" is used. The relevant legislation is the Rehabilitation of Offenders Act 1974. In the data retention model of the Police National Computer, arrests which do not lead to a finding of guilt "step down" as soon as the relevant decision is made (typically a "not guilty" verdict or a dismissal of charges) and become visible to law enforcement only. Records of cautions and minor convictions also step down after a specified period of time.

United States

Arizona

Arizonamarker's expungement equivalent is "setting aside" a conviction. Arizona's setting aside statute allows a defendant to petition the court to have a conviction set aside after the terms of the sentence are met. If the court grants the petition, the defendant is "released from all penalties and disabilities resulting from the conviction other than those imposed by the Department of Transportation." The conviction can be used in any subsequent criminal prosecution.

California

Californiamarker's expungement law permits someone convicted of a crime to petition the court to re-open the case, set aside the plea, and dismiss the case. In order for one to qualify for expungement, he must have completed probation, paid all fines and restitution, not served a sentence in state prison for the offense, and not currently be charged with a crime. If the requirements are met for eligibility, a court may grant the petition if it finds that it would be in the interest of justice to do so. A successful expungement will not erase the criminal record, but rather the finding of guilt will be changed to a dismissal. The petitioner then can honestly and legally answer to a question about his criminal history, with some exceptions, that he has not been convicted of that crime. What is actually stated on a record is that the case was dismissed after conviction. It never erases the record, and still states one was charged and convicted along with how much time was served.

Florida

Floridamarker law allows for expungement of criminal records that do not include a conviction, and permits the sealing or expungement of records where adjudication was withheld. To be eligible for sealing or expungement, the defendant must not have been convicted of or have pled guilty to any criminal offense, and must not have previously received an expungement or sealing. Some criminal records are ineligible for expungement or sealing if they resulted in a final disposition of Adjudication Withheld. A Certificate of Eligibility from the Florida Department of Law Enforcement is required prior to petitioning the court for an order to seal or expunge a record. There is a $75.00 charge for the Certificate of Eligibility. A successful sealing will limit disclosure of the record to only the Florida Bar, the Florida Department of Children and Families, the Florida Board of Education, law enforcement and in a few other circumstances. An expunged record will be unavailable for dissemination to any private or public entity, though the four agencies that can see a sealed record will be informed only that a record has been expunged.

Illinois

Illinoismarker law allows the sealing or expungement of parts of the records of a conviction. Sealing a conviction prevents the public, including employers, from gaining access to that record. To be eligible for sealing of a conviction record in Illinois one must have been sentenced to supervision. A waiting period of three years also is required, beginning at the time of discharge from supervision, where no convictions were entered. Some misdemeanors are ineligible for sealing. All felony convictions are ineligible for sealing except for class 4 felony drug possession and prostitution offenses.

Missouri

Missourimarker has two forms of expungement, one generally applicable to criminal cases and a unique one for the crime of being a minor in possession of alcohol.

Ordinary expungement

If certain requirements are met, Missouri law allows a person to have an arrest record expunged, which the law of Missouri defines as the process of legally destroying, obliterating or striking out records or information in files, computers and other depositories relating to criminal charges.

A person is eligible for expungement in Missouri if the arrest was based on false information and the following conditions exist:

  1. There is no probable cause to believe the person committed the offense;
  2. No charges will be pursued as a result of the arrest;
  3. The person has no prior or subsequent misdemeanor or felony convictions;
  4. The person did not receive a suspended imposition of sentence for the offense; and
  5. No civil action is pending relating to the arrest or records sought to be expunged.


If a person qualifies, in order to have the records expunged, they must file a verified petition for expungement in the civil division of the Circuit Court in the county of the arrest. The court sets a hearing on the matter no sooner than thirty days after the petition was filed. If the court finds that the petitioner is entitled to expungement of any record, it will enter an order directing expungement.

Records expunged under this provision still may be opened to law enforcement if the person is charged with a subsequent offense or if any of the requirements of expungement no longer are met.

Minor in possession of alcohol

See also: Alcohol laws of Missouri
In 2005, the Missouri General Assembly enacted a special new section in the state's Liquor Control Law allowing for the complete and total expungement for the offense of being a minor in possession of alcohol. Unlike ordinary expungement, the MIP expungement exists with the explicit legislative mandate that the effect of an order of expungement under it "shall be to restore such person to the status occupied prior to such arrest, plea or conviction, as if such event had never happened."

After not less than one year since the offense was disposed of, or upon reaching the age of twenty-one, whichever occurs first, a person who pleaded guilty to or was found guilty of the crime of minor in possession of alcohol for the first time, and who since such conviction has not been convicted of any other alcohol-related offense, may apply to the civil division of the circuit court of the county in which the person was sentenced for an order to expunge all official records of the arrest, plea, trial and conviction.

The person also must meet the following requirements:
  1. The person has not been convicted of any other alcohol-related offense at the time of the application for expungement; and
  2. The person has had no other contacts with law enforcement (i.e. arrest, charge) which were alcohol-related (such as for drunk driving or violation of the terms of a liquor license).


If a person has had an MIP record expunged this way, the law states they cannot "be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of failure to recite or acknowledge such arrest, plea, trial, conviction or expungement in response to any inquiry made for any purpose whatsoever."

A person is only entitled to one MIP expungement under this special provision.

New Jersey

New Jerseymarker statutes allow expungement of conviction of many indictable offenses, disorderly offenses offenses, municipal ordinances, and juvenile adjudications. The statutes disallow expungement for convictions if the applicant has been convicted of two or more indictable offenses, or four or more disorderly persons offenses. If the applicant has a combination of one criminal conviction and up to two disorderly persons convictions, the criminal conviction can be expunged when the waiting period has elapsed, but the disorderly persons conviction can never be expunged. A person who has had an indictable charge dismissed on account of a diversion cannot thereafter have a criminal or disorderly persons conviction expunged

The waiting period is ten years for indictable convictions, five years for disorderly offenses, and two years for municipal ordinances. The waiting periods begin to run on the date of sentencing, the date all fines are paid, or the completion date of probation or parole, whichever occurs last. Not all offenses are eligible.

There is no waiting period for most dismissals and acquittals. However, if the dismissal arose on account of a diversion, there is a six month waiting period. If the acquittal resulted from a finding of insanity or lack of mental capacity, the offense cannot be expunged. Motor vehicle offenses cannot be expunged.

Expungements give the person the legal right to state, even under oath, that the event never occurred. All civil disabilities associated with the conviction are eliminated. However, expunged records must still be recited in certain situations. These situations include applications for employment with a law enforcement agency, applications for employment in the judicial system, and applications for a subsequent expungement.

Not all states honor New Jersey Expungements. White v. Thomas, 660 F.2d 680, 685 (5th Cir., 1981), cert. den., 455 U.S. 1027 (1982), held that each state may interpret its own law to determine what recognition it may give to the expungement order of a sister state.

New York

New Yorkmarker Criminal Procedure Law 160.50 permits the "sealing" of cases where charges were dismissed, vacated, set-aside, not filed, or otherwise terminated. Otherwise, New York does not allow expungements, or "sealings," of cases where a conviction was entered, except for some older controlled substance, marijuana, and loitering offenses. Sealing a record under 160.50 will prevent the public from having access or seeing the records, including fingerprint cards, photographs, court entries, and other information related to the case. The record may still be made available to some entities, such as courts and law enforcement.

New York also permits the expungements of non-criminal dispositions (violations and traffic infractions, such as disorderly conduct) through New York Criminal Procedure Law 160.55. Misdemeanor and felony adjudications are not eligible.

Effective 2009, New York Criminal Procedure S 160.58, an petitioner convicted of most felony drug, marijuana, or Willard non-drug eligible crimes may request to have their records for those crimes sealed if they successfully complete DIVERSION, DTAP, or a similar substance abuse treatment program recognized by the court. The sealing will also extend to up to three of the petitioners misdemeanor drug convictions.

Ohio

Ohiomarker is a "sealing." Sealing allows first-time offenders to petition the court for the sealing of a conviction record. To be eligible, one must not have any current charges pending, or prior or subsequent criminal convictions, other than minor misdemeanors and those arising from the same incident. Completion of the court's sentence (fines, restitution, jail/prison, probation, etc.) and a waiting period from the date of discharge is also required (one year for misdemeanors or three years for felonies). Some serious offenses are ineligible.

Texas

Texasmarker expungement law allows expungement of arrests which did not lead to a finding of guilt, and class C misdemeanors if the defendant received deferred adjudication, and completed community supervision. The release, dissemination or use of expunged records by any agency is prohibited. Unless being questioned under oath, the defendant may deny the occurrence of the arrest and expungement order. If the defendant was found guilty, pled guilty, or pled no contest to any offense other than a class "C" misdemeanor, it is not eligible for expungement; however, it may be eligible for non-disclosure if deferred adjudication was granted.

Washington

Washingtonmarker's expungement equivalent is called "vacating a judgment." It allows the court to vacate certain felony convictions which occurred after July 1, 1984. Revised Code of Washington (RCW) Chapter 9.94A.640 allows the court to withdraw the finding of guilt and vacate a misdemeanor or gross misdemeanor. Once vacated, or expunged, the person's criminal record will not include that case. State law gives the person the right to state to anyone, including prospective employers, that the person was not convicted of that offense, after a vacate motion has been granted.

See also

Relief From the Collateral Consequences of a Criminal Conviction: A State-By-State Resource Guide (June, 2008) by Margaret Colgate Love at http://www.sentencingproject.org/PublicationDetails.aspx?PublicationID=486

References

  1. Black's Law Dictionary, p. 582 (6th ed. 1999)
  2. Arizona Revised Statutes (ARS) Section 13-907
  3. California Penal Code section 1203.4
  4. Florida Department of Law Enforcement Seal and Expunge Process
  5. Florida Statutes s943.0585
  6. Florida Statutes s.943.059
  7. 20 Illinois Compiled Statutes 2630 § 5
  8. Chapter 610, Revised Statutes of Missouri (R.S.Mo.)
  9. Section 311.326, R.S.Mo.
  10. N.J.S. 2C:52-2
  11. N.J.S. 2C:52-3
  12. N.J.S. 2C:52-2
  13. N.J.S. 2C:52-3
  14. N.J.S. 2C:52-14(f)
  15. N.J.S. 2C:52-6(a)
  16. N.J.S. 2C:52-6b
  17. N.J.S. 2C:52-6(c)
  18. N.J.S. 2C:52-28
  19. http://www.recordgone.com/statutes/new_york_record_sealing_s160.58.htm
  20. Ohio Revised Code 2953.32
  21. Texas Code of Criminal Procedure, Chapter 55
  22. TCCP Chapter 55
  23. Revised Code of Washington (RCW) Chapter 9.94A.640
  24. RCW Chapter 9.96



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