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Expungements – What You Need to Know

Introduction

Did you know that certain criminal acts may be able to be erased from your criminal record by a court? The act of erasing, or sealing, your criminal record for a certain criminal act (or acts) is called an expungement. If you expunge a criminal act, it’s kind of like letting you "start over" as if that crime never occurred in the eyes of the law. Does this sound too good to be true?

Well, you’ll have to meet certain requirements to apply for an expungement, exceptions may apply, and every jurisdiction deals with expungements differently. But don’t let that discourage you. The purpose of expungements is to give those deserving individuals who have worked hard to get their lives back on track a clean slate. It is possible to obtain an expungement if you know the rules and the process, which we’ll explore in this article.

In this article, we’ll take a look at what expungements are (and are not), the eligibility requirements for an expungement, the differences between expungements and pardons (an often confused topic), and how to find a lawyer to assist you or another in obtaining an expungement.

Next, we’ll explore expungements and their significance.

Expungement Defined

An expungement is the sealing of a criminal conviction, such as a misdemeanor or felony, from your criminal record. To seal your criminal conviction means that you can legally treat the crime as if it never occurred! So, you would generally not have to list an expunged crime on job applications or other public documents. It sounds too good to be true, doesn’t it? Well, there are exceptions to this rule and every jurisdiction can apply its own rules to expungements (which we’ll discuss later).

An expungement proceeding is a civil proceeding, not a criminal proceeding. That means you generally have to obtain your own lawyer. Judges also have a good amount of discretion in granting or denying a request to expunge a crime. For example, the court can consider many factors, including:

The nature of the crime you want expunged
Your criminal background
Whether you’re employed or seeking employment
Whether you’ve taken actions to stop your criminal acts

For example, if you were arrested for a drug related crime, the judge may require you to attend substance abuse programs and/or education programs

Any other mitigating factors, i.e. relevant factors, as determined by the judge

So, it is always best to take all necessary steps to prove to the judge that the crime was simply a one-time occurrence – which will not happen again.

Juvenile Expungements

Many states have laws that automatically seal a juvenile’s record once he or she reaches the age of an adult. This can be characterized as another form of expungement. The purpose of these laws is to give the juvenile a second chance and a clean slate going into the age of adulthood. Society wants kids to be productive and responsible adults – it’s in the best interest for society and the kids. So, many courts will seal a juvenile’s record to give the child a better chance in obtaining a good job and leading a productive life.

Now that we’ve touched upon a general overview of expungements, let’s go over the usual eligibility requirements to obtain an expungement.

Expungement Eligibility

In general, only the person who committed the crime can ask for an expungement. In other words, if your family member, significant other, or a friend committed a crime, you could not obtain an expungement for them. The actual person who commits the crime must request the expungement (except for some limited situations). So, what are the requirements to obtain an expungement?

Well, every jurisdiction can treat expungements differently, but there are some general requirements that most (if not all) jurisdictions require. The general requirements to obtain an expungement include:

You usually must be a first-time offender.

This means that you were convicted of a particular crime for the first time (i.e. it cannot be your second or third offense).
In some situations, you can have multiple offenses expunged if the offenses were related and occurred within a short time period (e.g. 90 days or less).

You must wait until the final discharge of your crime

This means you have served all of your jail and/or probationary time, and you’ve paid all other sanctions or penalties

You may have to wait for a statutory period of time before you apply

In other words, the court may make you wait for a certain period of time after your final discharge before you can even apply for expungement (i.e. you cannot apply for your expungement the week after you finish your sentence). What is the purpose of this statutory requirement? It helps to show the court that you have maintained a clean criminal record, all except for the crime you want expunged.

You may have to wait for 1 year or more for crimes like misdemeanors.
You may have to wait 3 years or more for more serious crimes like felonies.

No prior or subsequent criminal convictions

Crimes That Cannot Be Expunged

As previously mentioned, every jurisdiction has different laws on how (or if) expungements are handled. For example, each state sets its own rules on whether crimes can be expunged and how and when certain crimes are expunged. So, an expungement may not be available to you in your jurisdiction. Additionally, certain crimes are generally not allowed to be expunged, including:

First and second degree felonies (very serious felonies)
Sex offense crimes
Child abuse crimes, i.e. crimes against minor (under the age of 18)
Violent offense crimes
DUI convictions

NOTE: You should be aware that the federal government does not have to honor an expungement. Under federal law (and certain state laws), an expungement of a conviction does not necessarily relieve a person from having to disclose it in an application for the military, public office, or on some professional license applications. For example, even if you obtain an expungement in your state for a crime, you may have to disclose that crime if you apply for the military or plan on becoming a lawyer or doctor.

Next, we’ll go over the differences between expungements and pardons – an often confused topic.

Differences Between Expungements and Pardons

Many times people confuse expungements with pardons. However, an expungement and a pardon are two different things! If a person receives an expungement, he or she may usually treat the crime that was expunged as if it never occurred. For example, a person would generally not have to list the expunged crime on a job application. But each jurisdiction treats expungements differently. That means sometimes the expunged crimes are not treated as if they disappeared. There are some exceptions where expunged crimes must be listed on job applications – like when applying for some government jobs (as previously mentioned).

In contrast, a pardon is not a judicial action like an expungement. A pardon may be granted by a state governor or the President of the United States (depending on the nature of the crime). For example, acts which violate state law can generally only be pardoned by that state’s governor, while certain federal crimes can only be pardoned by the President of the United States.

Additionally, a person who receives a pardon cannot treat the crime as if it never occurred. In fact, a person who receives a pardon for a crime must list that crime on job applications and other public documents that request it. This is a big difference from expungements, which often do not have to be listed on such documents.

Please read "Presidential Pardons" for more information on pardons.

Next, let’s take a look at how to find a lawyer when obtaining an expungement.

Finding a Lawyer for an Expungement

You generally must pay for an attorney for an expungement. This is because an expungement is not a criminal case and you do not face the possibility of losing any liberties (like going to jail). Rather, an expungement proceeding is a civil case, and in civil cases you must generally pay for your own lawyer.

However, some local bar associations offer to represent individuals on a pro bono basis (i.e. for free) who need expungements. But you’ll have to ask around in your local area to see where you can find these individuals. You may want to start with the local public defender’s office. There is also usually a filing fee associated with the expungement that you have to pay, unless you can get it waived.

You can also represent yourself, i.e. pro se, in obtaining your expungement. But it may be difficult to go through the process without at least some guidance from an attorney. If you choose to select an attorney (or ask an attorney for guidance), make sure to ask trusted people you know and use referrals.

Finally, we’ll wrap this article up with some main points to keep in mind.

Conclusion

In this article, we took a look at what expungements are (and are not), the eligibility requirements for an expungement, the differences between expungements and pardons, and how to find a lawyer to assist you or another in obtaining an expungement.

Remember, expungements are a form of equity, i.e. fairness, to give those individuals who committed a crime a second chance. Juvenile criminal records are often sealed, or expunged, in order to allow the juvenile a second chance to become a productive citizen. In the same way, adults may sometimes be able to expunge a past criminal act as long as the adult takes the necessary steps to become a product citizen and refrain from any further criminal activity.

You should now have a better understanding about expungements and the rules and processes required to expunge a crime. While the process may seem somewhat stringent, it’s meant to be stringent for a purpose.