Expungement (also called "expunction") is a court-ordered process in which the legal record of an arrest or a criminal conviction is "forgotten." Another way to see it is erasing a record in the eyes of the law or setting aside a criminal conviction.
This legal process can be life-changing for someone with a past conviction or arrest record by opening up more options to them. To expunge a record means a person can live more freely, without worry that past legal hardship will follow them.
This article includes more details about expungement. This information should not be treated as formal legal advice for someone who needs help regarding their arrest or court record.
Legal Effect of an Expungement
An expungement ordinarily means a court seals or erases an arrest or conviction from a person's court record for most purposes. After the expungement process is complete, the person who was arrested or convicted is not legally required to disclose the incident.
(In limited situations, a person might be expected to disclose an expungement. When someone is under oath, they might have to disclose an expungement — but not their legal history beyond that.)
An expungement can help with background checks. People commonly face situations that require a background check, whether they are searching for housing or applying for new jobs. It is natural to wonder whether the expungement of a record will prevent an incident from the past from appearing during the background check.
When filling out an application for a job or apartment, an applicant whose court records were expunged is not required to disclose their arrest or conviction. A landlord or private sector employer would likely not be able to obtain access to the expunged record. That is because in most cases, no record of an expunged arrest or conviction will appear if a potential employer, educational institution, or other company conducts a public records inspection or background search of an individual's criminal record.
This works a little differently when someone is looking for employment with the federal government or as a federal contractor. FBI databases, for example, do not always go along with state courts and their expungement policies and may reveal expunged or sealed records that would ordinarily remain hidden.
What Is The Expungement Process?
Expungement does not erase memory of a run-in with the law in a literal sense; no legal process can cause mass amnesia and cause people to forget that someone was arrested for, charged with or convicted of a past crime. As a matter of legal fiction, however, courts can "erase" records of arrest or conviction.
Different jurisdictions handle expungement of records differently. Some simply prohibit the release or dissemination of records. Others actually purge a person's records and physically destroy the files. Additionally, some systems might create a legal protection that explicitly permits parties to deny the existence of the records (with no fear of perjury).
Some states seal certain types of records automatically, such as records of juvenile arrests. Others require the subject of a record to prepare a complicated court filing. Most people prefer to work with a criminal defense lawyer when seeking an expungement, but some jurisdictions provide forms so that people can file independently, without the representation of an attorney, if they would rather save the expense.
Are Expunged Records Completely Gone?
An expunged arrest or conviction is not necessarily completely erased in the literal sense of the word. An expungement will ordinarily be an accessible part of a person's criminal record, viewable by certain government agencies, including law enforcement and the criminal courts. This limited accessibility is sometimes referred to as a criminal record being "under seal."
A person's supposed "erased" record can, in fact, impact them in some legal proceedings. If that person faces sentencing for any crimes committed after an expungement, the court may consider the past record. Also, an immigrant facing removal proceedings may find that an expunged conviction or one "under seal" is used as evidence in support of their removal from the country.
Factors That Determine Eligibility for Expungement
Whether a criminal record can be expunged always depends on a number of factors, including the jurisdiction; the nature of the crime or charge; the amount of time that has passed since the arrest or conviction; and whether there is any additional criminal history.
Details of the process and the general availability of expungement both depend on the location of the criminal record. Remedies vary based upon the state or county in which the arrest or conviction occurred. In some jurisdictions, it is simply not possible to expunge a record.
Some states, including New York, do not allow for expungement of adult criminal convictions at all, but may allow certain conviction records to be sealed.
Type of Offense:
Repeat offenses and more serious criminal offenses are generally harder to have expunged or sealed. Details regarding the eligibility for an individual case depend on where the subject of the record lives and the legal requirements in that jurisdiction. Some places, for example, will only consider misdemeanors as eligible for expungement but not felonies. Some jurisdictions limit eligibility to only non-violent offenses.
Generally, the legal system likes to give those who had troubles as a juvenile a chance at a clean slate. Many courts give those with juvenile records the opportunity to have their records sealed or erased if they get in no further legal trouble after a certain length of time. Not all juvenile cases will be eligible. Specifics about eligibility depend on location, type of offense, and whether there were any subsequent or previous offenses.
Outcome of Case:
The availability of expungement may turn on whether the person seeking to have their record expunged was convicted of criminal charges or simply arrested for suspicion of an offense. A mere arrest record without a conviction is more likely to be expunged than an actual conviction. Of course, this guideline can vary based upon the jurisdiction.
Expungement vs. Sealing Records
Sealing criminal records under court order is similar to having them expunged, but they can be less "hidden." If records are sealed, then they are not available to the public; this would include private investigators, creditors, and employers. However, these records still exist in the context of the criminal justice system. For example, the sealed convictions could still be considered prior offenses to enhance subsequent charges.
Get Legal Help with Your Expungement Questions
Expungement laws are highly variable. Different state laws have different requirements that need to be met before an expungement can be granted or a record can be sealed. It is a good idea to contact a criminal defense attorney who can advise you about the requirements to have your prior conviction expunged, taking into account local rules and the facts of your case.