Expungement Basics

Expungement or expunction is a court-ordered process in which the legal record of an arrest or a criminal conviction is erased from your public criminal record.

This article provides more details about expungement. This information is not formal legal advice for someone who needs help with their arrest or court record.

Effect of an Expungement

An expungement order means a court removes an arrest or conviction from a person's court record for most purposes. After the expungement process is complete, you are not legally required to disclose the incident.

In limited situations, you might be expected to disclose an expungement. When someone is under oath, they might have to disclose an expungement, but not the legal history beyond that.

An expungement can help with background checks. People often face situations that require a background check. They will want to check your record, whether you are searching for housing or applying for a new job.

It is natural to wonder whether the expungement prevents an incident from appearing during those background checks.

When filling out a job application or applying for an apartment, you are not required to disclose your arrest or conviction if your court records are expunged. A landlord or private sector employer likely could not see the expunged record. That is because, in most cases, no record of an expunged arrest or conviction will appear. This applies to a potential employer, an educational institution, or another company that conducts a public records inspection or background search.

This works differently when 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. The FBI database may reveal expunged or sealed records that would ordinarily remain hidden.

Once an expungement order is entered, some states prohibit releasing or disseminating expunged records. Others purge a person's records and physically destroy the files. Some systems might create legal protections that permit you to deny the existence of the records without fear of perjury.

The Expungement Process

Expungements get handled at the state level. They follow state laws. Federal crimes are rarely eligible for expungement. Every jurisdiction handles the expungement of records differently.

Each state has particular laws about what can be expunged. Some states automatically seal certain types of records, such as records of juvenile arrests. Be sure to explore your state's expungement laws to see if you are eligible.

Often, there is a waiting period before you can apply for expungement. If your offense qualifies, you or your criminal law attorney will file an expungement petition with the court. This is done in the jurisdiction where the offense occurred. Some courts have these forms available online. There is a filing fee and a court date, if required. You must have no further infractions.

If you need to attend a court hearing, you must explain to the court why expunging your record is necessary and appropriate. The order is sent to the appropriate criminal justice agencies if the judge grants your expungement. The record of your offense will be removed. This could take up to a year for all agencies to process. Check your record periodically to ensure the expungement has gone through.

Are Expunged Records Completely Gone?

An expunged arrest or conviction is not entirely erased. An expungement remains an accessible part of a person's criminal record. It is 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 expunged record can impact them in some legal proceedings. Law enforcement agencies and the criminal justice system may have access to your prior criminal case. Get arrested again, and the prosecution can check your last conviction or arrest, even expunged offenses. They can use this information when handling your new case.

An immigrant facing removal or deportation proceedings may find that an expunged conviction or one "under seal" can be evidence. Even expunged crimes and arrests can be evidence used to support their removal from the country.

Expungement of criminal history records does not erase the memory of a run-in with the law. Any record of your arrest or conviction published in a newspaper or online won't get erased.

Factors That Determine Eligibility for Expungement

Whether a criminal record can be expunged depends on several factors. This can include the jurisdiction of the offense, the nature of the crime or charge, the time that has passed since the arrest or conviction, and whether there is any additional criminal history.

Location or Jurisdiction

Details of the process and the general availability of expungement depend on the criminal record's location. Remedies vary based on the state or county where the arrest or conviction occurred. In some jurisdictions, it is not possible to expunge a record.

Some states, like New York, do not allow for expungement of adult criminal convictions at all. They may allow certain conviction records to be sealed. Some states will allow for the expungement of a charge of driving under the influence (DUI), while some states do not.

Type of Offense

Repeated and more serious criminal offenses are generally harder to expunge or seal. In the interest of public safety, violent felony convictions are not eligible for expungement. These would include murder, rape, arson, and terrorism. Some places will only consider misdemeanors as eligible for expungement. Other jurisdictions limit eligibility to only non-violent offenses.

You are more likely to get an arrest that did not result in a conviction expunged. This could mean a dismissal of charges. Or you completed a pretrial diversion program. A pretrial diversion is an option for first-time offenders, but this is up to the prosecutor. It may have certain requirements attached. This may include completing community service hours, a treatment program, and, of course, remaining crime-free during a set period. If you meet these conditions, the prosecutor will dismiss the charges against you. You will need an expungement order to remove it from your record.

Sex offenses are usually not eligible for expungement. In very limited instances, expungement may be available for a misdemeanor conviction of a sexually related crime. Any conviction that requires you to register as a sex offender will not qualify for expungement.

Age

The legal system likes to give those who had troubles as a juvenile a chance for a clean slate. Many courts allow those with juvenile records the opportunity to have their records sealed or erased. They cannot get into any 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.

The Outcome of the 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. Expungement is more likely in an arrest record without a conviction than if you are convicted of a crime. Of course, this guideline can vary based on the jurisdiction.

Expungement vs. Sealing Records

Sealing criminal records under court order is like having them expunged, but they can be visible to other agencies. Sealed records are not available to the public. This includes private investigators, creditors, and employers. However, these records still exist in the criminal justice system. For example, sealed convictions may be prior offenses that enhance subsequent charges.

Get Legal Help With Your Expungement Questions

Expungement laws are highly variable. Different state laws have different requirements before granting an expungement or sealing a record. Only a licensed attorney can give you legal advice. Contact a criminal defense attorney who can advise you about the requirements to have your prior conviction expunged, considering local rules and the facts of your case.