Criminal Defense

Expunging Criminal Records

Overview

The process of deleting a criminal record so that it is not available for public viewing is known as expungement. The advantage to having records expunged is that the person may legally tell employers, landlords, and anyone else that they have not been convicted of a crime and do not have a criminal record.

Some states do not permit certain criminal charges to be expunged, but the records may be sealed. When records are sealed, they are not available for public viewing without a court order. However, sealed records remain available to certain agencies for specific purposes. For example, traffic violations can sometimes still be viewed by insurance companies, government agencies can usually still view immigration records, and law-enforcement agencies have access to criminal records after they have been sealed.

Initial Steps

The expungement process varies as it is governed by state law. However, there are three general steps that can be taken to start the process of having a record expunged:

  1. Research whether the offense is eligible to be expunged,
  2. Research whether the person is eligible for an expungement, and
  3. File the paperwork with the court.

The Types of Offenses That are Eligible for Expungement

Whether a criminal record may be expunged is dependent upon state and local laws. Most courts allow lesser criminal charges to be expunged, although expungement of felonies may be available in some states. Even in these states, serious crimes such as prostitution, grand theft, child molestation, and DUI’s are not eligible for expungement.

The most common types of charges that are expungable include:

  • Drug offenses: Convictions for drug use are often able to be expunged, especially when the offender completes a diversion program.

 

  • Juvenile offences: When crimes are committed before a person reaches the age of 18 they are often able to have those offenses deleted or sealed.

 

  • Misdemeanors: Many states permit misdemeanors to be expunged.

Who Is Eligible to Have Their Criminal Records Expunged?

People who are commonly permitted to have their criminal records expunged or sealed include those who are under the age of 18 when the crime was committed, first-time offenders, and drug users. Even if the person does not fall into any of these categories, other factors may mitigate for expungement. For example, when the person’s only convictions were for misdemeanors, or the person completed their sentence and the conviction occurred many years ago.

Generally, parties need to have no other offenses for at least a year after their last criminal charge before expungement will be permitted. As the seriousness of the conviction increases, so does the amount of time that needs to pass since the last offense.

The expungement process

The first step in the process is for the person to obtain a copy of their criminal history. This is usually kept by the state’s criminal records department. If any of the charges fall into a category that may be eligible for expungement, then the party can file a petition for expungement. A filing fee will need to be paid at this time to the clerk of court. Sometimes additional paperwork will need to be filled out and filed with the court.

It is likely that the judge will set a hearing regarding the petition. The party will need to attend this hearing and answer the judge’s questions regarding why the records should be expunged. It is possible that a representative from the state’s department of justice will appear and oppose the petition, which is why it is a good idea to work with an attorney during the expungement process.

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