It can be tough to progress in modern society if one has a criminal record. For example, it’s much harder to find a job, rent an apartment, or obtain financing arrangements like a car loan or mortgage. Therefore, it’s wise to consider all options to possibly remove criminal records like expungement. Expungement refers to removing criminal offenses of a record or even diminishing them to lesser misdemeanors. For example, reducing a DUI to a wet reckless is a common way to lessen criminal offenses.
This alone will make it much easier to progress in modern society and know that each jurisdiction has its own rules regarding expungement. Use this guide to learn about expungement, eligibility, related terms and case studies by state.
What is expungement?
Expungement or expunction is a process that entails erasing criminal history from one’s record. These criminal convictions can range from a variety of offenses from robbery, drug possession, prostitution, DUIs, petty theft, disorderly conduct and more. Generally, offenses that can be expunged are relatively minor, which is why they’re eligible for this treatment. Conversely, major crimes like child molestation, rape, murder and assault with a deadly weapon can’t be expunged as they have severe impacts on society,
After this has occurred, the individual doesn’t need to disclose this offense to prospective landlords nor employers. Some landlords conduct a background check, credit check, and require three references. They do this to ensure that the renter can pay the rent on time and has good character. However, fewer landlords ask about criminal backgrounds and it varies by company. Employers have asked candidates about criminal records in the past, via questions on the application form. Per legal website Nolo, 92% of employers check an applicant’s history for criminal offenses and this is more common in highly regulated industries like financial services.
Also, expunged offenses won’t appear on a background check, so important circles of influence won’t know about it. Applicants can legally answer “no” if they’ve been convicted of a crime if they have expunged offenses. This process can be seen as a second chance for the convicted party, as it won’t impact their societal progression.
However, keep in mind that expunged crimes are never truly gone as legal jurisdictions and other government agencies can still see these past offenses. Some government agencies ranging from local police departments, state highway patrol or even federal agencies like the DEA and FBI will be able to see expunged records. This access would be limited to just these groups. Unlike other similar terms, it can’t be accessed by the public, even with a court petition. These past offenses can be used by government officials against a defendant in a court of law for other crimes committed or even during immigration hearings.
For instance, immigrants that have committed new crimes and have expunged offenses could be deported. Legal authorities could use expunged offenses to push for deportation, which occurs in states with a high immigrant population like California.
Some minor offenses like parking tickets or petty theft that are expunged won’t have an impact on immigration. Conversely, major offenses related to undocumented entry, drugs, trafficking, and violent crimes can be used against a non-citizen. Another exception to this rule is for the nondocumented entry of asylum seekers waiting for approval.
Who is eligible for it?
Eligibility is based on many factors like the severity of the crime, state, and years passed. Also, each state sets its own rules for expungement, which is important to know. However, most states share common basic tenants for eligibility in their court records such as:
- The person has paid all fines and restitution in full.
- He or she has met all waiting periods prior to petitioning expungement.
- This person has no new or pending charges.
- He or she has completed all probation or community service requirements.
- Crimes and infractions must be deemed eligible by each state. Lesser ones like first time DUIs can generally be expunged with a clean driving record and time. Conversely, murder and rape will almost never be expunged.
- Criminal proceedings were either dismissed or the person was found not guilty. This can also apply to those that were acquitted after a trial or found not guilty after being proven innocent. Unfortunately, some people have been convicted of crimes, served time only to be acquitted through DNA evidence. These people would have these crimes expunged and the Innocence Project is a group that is committed to ending wrongful convictions using DNA testing.
It’s also important to note that each state treats the expungement of minors and adults differently. Minors are considered children and apply to those who are under the age of majority. The age of majority can vary by state, but it’s usually around 18. Also, each state has different rules for ages when one can marry, file for emancipation, or enter into contracts.
Fortunately, most states automatically expunge most crimes for minors as they don’t want these youth to have their juvenile record impact their transition to adulthood. This simple step can prevent repeat offenders as those with criminal records are more likely to return to prison, as their records prevent them from accomplishing standard societal tasks.
The three main steps toward expungement
Expungement can vary based on many variables, but it has a straightforward three-step process:
1. Learn about eligibility
As mentioned above, many non-serious crimes are eligible for expungement after sufficient time and if the person hasn’t committed any additional offenses. It’s wise to use a site like a state’s courthouse or consulting with the defense and prosecuting attorneys on that particular case. Sometimes, defense attorneys will negotiate with the prosecution regarding expungement if the person meets all the requirements. Check with the defense attorney to see if this conversation occurred along with the specific terms of the agreement.
2. File a petition
If the defendant is eligible, he or she has to file a petition with the courthouse. Then, the defendant will have to pay a fee, wait for paper processing and book a hearing with a judge. Keep in mind that the paperwork for each state is different with some states like Florida only requiring a certificate of eligibility form. Conversely, California requires three forms which are the petition for dismissal, order for dismissal and a declaration.
Be sure to meticulously fill out the paperwork as small mistakes can impede this process by months. Some large mistakes will force the defendant to start over, wasting both money and time. In many states, defendants have to file petitions in the counties in which they were convicted of a crime.
3. Hire a competent attorney
Working with the right attorney can save the defendant money and time. Attorneys might seem expensive, but they can save more money over the long term as they can expedite the process and ensure the paperwork is filled out correctly. Also, the attorney can accompany the defendant in the expungement hearing and speak on his or her behalf. Some counties have attorneys that specialize in this process like the team with the “New Leaf” program in Orange County, CA.
Expungement is a detailed process that has many moving parts and can be complex. Therefore, it makes sense to learn about these errors as this will prevent unnecessary hardship when removing it from the public record. Some common mistakes to avoid are:
1. Doing it all yourself
There are some options that allow you to do this process by yourself, but these aren’t recommended. Expungement is an intricate process and there is significant room for error. For example, using one wrong form or incorrectly filling out the paperwork can delay claims by months. Also, most candidates will have to present themselves before a judge, which can be nerve-wracking and presents another challenge.
Instead, consider working with a competent attorney or even a public defender to find legal representation. Having professional guidance will alleviate any necessary headaches and streamline the expungement process.
2. Not being proactive
Self-starters have a great advantage in many aspects of life from getting a job, starting a business, achieving fitness goals and even getting past offenses expunged. Many people erroneously believe certain offenses will automatically fall of their records. For example, they assume first-time DUIs will vanish after 7 years in California. This isn’t the case, making it crucial to start the process, use the right counsel and complete deadlines on time.
3. Failing to understand the differences between similar terms
Expungement has many related terms like dismissal, sealing, and rehabilitation. Each process has similarities and differences. For instance, sealing records keeps them out of the public view like expungement. It differs as the records can be accessed by the public only via a court petition. Other times, it makes sense to seek a case dismissal if there is faulty or insufficient evidence. These terms and a few others will be explained in more detail below.
There are many related terms to expungement laws that can similar, yet different meanings. It’s important to understand these thoroughly as each one has a unique impact on criminal records.
A pardon is similar to expungement, but it still shows that the person committed the crime. Unlike an expungement, the crime isn’t sealed away and can be accessed by the public. So, if the defendant is filling out a job application asking about criminal offenses, he or she would have to mark that they’ve had a criminal offense. Also, they can explain the pardon and the reasoning behind it in these applications.
Pardons also restore certain rights like the ability to purchase guns or not have to register as a sex offender. These applicants must also complete parole, probation and not commit further crimes. Using pardons are becoming rarer as government officials fear a backlash. For example, President Clinton pardoned tax evader Marc Rich during his last week in office. Marc’s crimes could have made him eligible criminal charges like a life sentence, but President Clinton pardoned him, which caused controversy among both democrats and republicans.
Dismissal occurs when a court has insufficient evidence for a conviction. These can include having unscrupulous witnesses, poor DNA evidence or a lack of other reasonable evidence. This process can also occur if the defendant has completed community service or another treatment program. However, a dismissed case will still appear on a background check, but it will say that the person wasn’t convicted of a crime.
Sealing can be seen as a less extreme form of expungement as it still has the record of the offense. This record can’t be accessed through a background check although it still exists in a court database. So prospective lenders, landlords, and employers can’t access sealed records. Also, applicants can legally answer no if they’ve been convicted of a criminal offense. The only time these records can be accessed by the public is via petitioning a court order.
4. Certificate of Rehabilitation
Rehabilitation shows that the defendant has committed the crime, but paid their debts to society and is rehabilitated. This process is used to recover important rights that were forfeited with a criminal record. Some of the most important rights that can be restored are not having to register as a sex offender and those related to occupations. For instance, many professional fields like nursing don’t allow people with criminal records to practice. A certificate of rehabilitation will help these people re-enter or train to become licensed professionals.
This program can even be used to automatically file for a governor’s pardon and can be obtained by filing a court petition with letters of character. These letters of character can be references from parole officers, former employers, and counselors.
5. Certificate of Innocence
A Certificate of Innocence goes beyond a pardon as it states that the person should have never been convicted or arrested and was innocent. Some states allow people to gain a certificate of innocence if their crime was already expunged. People can acquire this certificate if a court acquitted them or if the court dismissed their case. There have been times when courts dismiss cases due to lack of evidence or poor quality witnesses. Others suggest working with a public defender, petitioning the judge or asking the arresting law enforcement agency for this certificate.
Record expungement case studies by State
Each state has different rules, and this section will highlight some of the rules from the largest ones like Texas, California, and New York. First, the person must ask the court for the records to be sealed. This process was explained above, but it generally means that the crime will not be available for the public.
In Texas, some offenses don’t have waiting periods while others do and this is based on the severity of the crime. For example, the following offenses have no waiting period:
- Marijuana Possession
- Criminal Trespass
- Resisting Arrest
- Burglary of a coin operating machine
More serious offenses, like the ones shown below, have a two-year waiting period. These include, but aren’t limited to:
- Possession of an unauthorized weapon
- Public Lewdness
Once the waiting period and the paperwork is filed, it can take an additional 6 months to a year to expunge a case.
New York is an interesting state as defendants can’t expunge their records there. Instead, defendants have the option to seal their records. These records won’t be accessed by employers but can be shown to government agencies. Like most states, New York allows juvenile offenders to seal most crimes committed under the age of 16. This is beneficial as this rap sheet won’t follow them into their adult years.
New York also has stricter rules for common offenses like DUIs (Driving under the influence) or DWIs (Driving while impaired). These two offenses are similar and many states define DUIs as driving with alcohol impairment and DWIs as being impaired via illegal drugs or prescription medication. New York doesn’t allow expungement for either offense, yet other states can have these records expunged after a certain amount of time. For example, most first time DUI offenders in California can get their record expunged between 4-7 years. Most people assume that DUIs will automatically be expunged after 7 years, but this isn’t the case, making it imperative to be proactive, and when in states like California (up next), a necessity to attempt to reduce penalties for a DUI conviction.
California is one of the largest states and has many expungement rules including prohibiting employers asking candidates about arrests that didn’t lead to convictions. So, these employers can’t ask interviewees if they’ve been arrested nor if they’ve participated in rehabilitation programs. Labor law also prohibits using this information when hiring, promoting or terminating an applicant. However, private employers in California can ask about past convictions on job applications.
The expungement process generally takes between 90 - 120 days. However, filing a petition for expungement can take 6 or more depending on the time passed, case complexity, if it’s a felony or misdemeanor, and case location. If a case is in the courthouse’s computer system, it will be processed quicker than a hard or even non-existent copy. Larger California counties like Los Angeles County have slower expungement times, with it taking 60 - 90 days just to retrieve the old case. Keep in mind that this usually applies to cases that are older than 10 years.
Conversely, smaller counties like Orange County are much quicker and can turn cases around in the 90-day range.
Nolo is a premier online legal resource that has many legal products like ebooks, software, and forms. It offers guidance on a wide variety of legal topics including dismissals, expungement, and sealing. This site is a helpful resource, but it’s not a substitute for formal legal advice.
The Innocence Project is an organization that exonerates innocent prisoners of crimes they didn’t commit. Many of these prisoners were convicted decades ago when technology like DNA testing couldn’t prove their innocence. Fast forward to the present day, technology has become very precise especially tools relating to forensic science.
This group also helps reform the justice system and prevent unjust convictions by identifying inadequate defense strategies, government misconduct, and false confessions. They also assist law enforcement agencies to improve their forensic processes to stop innocent people from being sent to prison.
New Leaf Program:
The New Leaf Program is conducted through the Orange County Public Defender. This California based organization helps those that have been convicted of past crimes get on their feet through providing opportunities to obtain employment, improve credit and even professional licenses. This group also works with offenders by reducing felonies to misdemeanors and providing certificates of rehabilitation. These certificates of rehabilitation are available to those that have completed prison sentences and haven’t committed any additional crimes.
They can also assist past offenders with other related services like sealing arrest records, pardons, and dismissals.
State rules for the age of majority, emancipation, etc..
Each state has its own unique government and rules. This link breaks down each state’s policy on topics like the age of majority, marriage, emancipation, and contracts. For example, South Carolina allows people as young as 16 to marry each other, provided they have parental permission.
Ban the Box
Ban the Box is a civil rights campaign that strives to exclude questions about past crimes on housing and job applications. This organization was founded in 2004 and seeks to give past convicts that have been rehabilitated a fair chance in society. Fortunately, their efforts have been successful as over 45 counties and cities have banned conviction questions on job applications. Recently, Newark, New Jersey has banned this question on the housing application, leading to diminished housing discrimination.
Having a criminal record isn’t optimal and can set one back in society. It makes fundamental tasks like finding a good job or place to live much harder. Luckily, expungement or record sealing can reduce misdemeanor convictions or even eliminate these offenses, allowing people to get on the right track. Keep in mind that each state has different expungement rules, making it important to be able to adapt to those. There are also many mistakes to avoid when going through the expungement process and related terms like a pardon. This guide went into detail regarding case studies and criminal records after expungement as well.
Disclaimer: This guide is general education, not legal advice. Consult an attorney or legal advisor for legal advice.