Expungement

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." ["Black's Law Dictionary", p. 582 (6th ed. 1999)] 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.

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.

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:
* Fulfilling a waiting period between the incident and expungement;
* Having no intervening incidents;
* The number of prior incidents;
* The seriousness or type of offense involved in the incident;
* Fulling the terms of any sentence;
* Not having any pending criminal investigation or proceedings;
* 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. 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 expungement process, or he/she can decide to represent themselves, also known as 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 permanently, usually 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 Kingdom the term "spent conviction" is used and the relevant legislation is the Rehabilitation of Offenders Act 1974. In the PNC's data retention model, 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

Arizona's expungement equivalent is "setting aside" a conviction. Arizona's setting aside statuteArizona Revised Statutes (ARS) Section 13-907] 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

California'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.California Penal Code section 1203.4] In order for one to qualify for expungement, they must have completed probation, paid all fines and restitution, not served a sentence in state prison for the offense, and not currently being 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 honestly and legally can answer to a question about his criminal history, with some exceptions, that he has not been convicted of that crime.

Florida

Florida 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. [ [http://www.fdle.state.fl.us/expunge Florida Department of Law Enforcement Seal and Expunge Process] ] 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. [ [http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0943/SEC0585.HTM&Title=-%3E2005-%3ECh0943-%3ESection%200585#0943.0585 Florida Statutes s943.0585] ] [ [http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0943/SEC059.HTM&Title=-%3E2005-%3ECh0943-%3ESection%20059#0943.059 Florida Statutes s.943.059] ] 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

Illinois law allows the sealing or expungement of parts of the records of a conviction.20 Illinois Compiled Statutes 2630 § 5] 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

Missouri 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 a criminal 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.Chapter 610, Revised Statutes of Missouri (R.S.Mo.)]

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

#There is no probable cause to believe the person committed the offense;
#No charges will be pursued as a result of the arrest;
#The person has no prior or subsequent misdemeanor or felony convictions;
#The person did not receive a suspended imposition of sentence for the offense; and
#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.Section 311.326, R.S.Mo.] 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:

#The person has not been convicted of any other alcohol-related offense at the time of the application for expungement; and
#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 Jersey statutes allow expungement of indictable offenses and disorderly offenses, if the defendant does not have any prior or subsequent indictable offenses, less than 3 convicted disorderly offenses when expunging an indictable offense, and less convictions 4 when expunging a disorderly offense. [N.J.S. Sections 2C:52-2 and 2C:52-3] All fines must be paid, and a waiting period that begins at the completion of the sentence must be met (5 years for disorderly offenses – 10 years for indictable offenses). Not all offenses are eligible.

New York

New York 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. MisdemeanorFact|date=September 2008 and felony adjudications are not eligible.

Ohio

Ohio's equivalent of an expungement is a "sealing." [Ohio Revised Code 2953.32] 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

Texas expungement law [ [http://tlo2.tlc.state.tx.us/statutes/docs/CR/content/htm/cr.001.00.000055.00.htm Texas Code of Criminal Procedure, Chapter 55] ] 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. [TCCP Chapter 55] 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

Washington'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] 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. [RCW Chapter 9.96] 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.

ee also

* Second Chance Act
* Record sealing

References