When Is Expungement Not an Option?

Expungement (also called expunction) is the process by which an individual can clear a prior conviction from their criminal record. It is important to remember, however, that you don't always have the option of expunging an arrest or a criminal conviction. Some states do not offer this tool.

Remember, if the judge or jury acquits you of criminal charges, it will not appear as a conviction on your criminal history. Therefore, you likely will not need to file for a record expungement. The court records will, however, show that police arrested you for the alleged crime.

Your criminal defense lawyer can make sure that you file the necessary paperwork and pay the required filing fees if you need to get an arrest record removed from your criminal history.

What Is an Expungement?

If you are convicted of a criminal offense, it can affect your life in various ways. You may lose a job opportunity if a criminal case appears on your criminal record. It is difficult to secure certain professional licenses if you have conviction records. You may also lose certain civil rights, such as voting or serving on a jury. An expungement is a tool that allows you to erase certain misdemeanor and felony convictions.

Once the court receives your application, it will inform you whether your criminal conviction is eligible for expunction. If it is, the judge will issue a court order commanding the court clerk to remove or seal the record in question. Given the complex nature of this legal process, it's a good idea to contact a criminal defense lawyer for help. Any legal advice they provide should make the process less intimidating.

What's the Difference Between an Expunged Record and a Sealed Record?

Many states refer to the process of removing a criminal record as an expungement. Other states do not allow expunctions at all. Instead, they may agree to seal the case so that it is no longer considered a public record. Once the court seals your criminal record, only law enforcement and criminal justice agencies can see your arrest or conviction.

In states that don't allow expunction, you may still be able to remove your criminal history from public view. A sealed record is not visible to potential employers. Nor will these records appear on an ordinary background check. Instead, a judge must issue a court order permitting a third party to see expunged and sealed records.

Certain Crimes Are More Difficult to Get Expunged

As you may imagine, certain crimes are more likely to be eligible for expungement. For example, juvenile records are much easier to expunge than convictions you receive as an adult. It's also a lot easier to get misdemeanors removed from your criminal history record than felonies.

Completing a diversion program will make it easier to obtain an expungement. For example, if you shoplift and get arrested, the court may order diversion instead of a jail or prison sentence. As long as you complete the terms of your diversion program, the record will only appear as an arrest — not a conviction.

If the judge or jury convicts you of a felony, it will be a lot harder — maybe even impossible — to get the conviction removed from your criminal record. In fact, you should consider retaining a criminal law attorney to help file your expungement request.

Some of the crimes that are difficult or impossible to get expunged from your criminal history record include:

• Murder
• Rape
• Kidnapping
• Sexual assault/battery
• Arson
• Terrorism
• DUI (in certain states)
• Domestic violence (in certain states)
• Robbery

Generally, violent felonies are not eligible for expunction. When you talk to your attorney, they will give you a better idea of whether the court will remove a criminal case from your record.

When Expungement Is Not an Option: Overview

Unfortunately, expungement isn't always an option. This is especially the case for violent crimes. Depending on the state laws in the jurisdiction where the arrest or conviction occurred, expungement may:

• Not be available at all
• Be an option for arrests but not for convictions
• Be an option only for certain criminal convictions
• Be an option only for arrests and/or convictions that occurred while the offender was a juvenile
• Be available only after the court acquits a person of an offense (i.e., charges are dismissed)
• Be possible only when the judge reverses a criminal conviction

Of the states that offer some form of expungement of criminal offenses, each has its own set of criteria for when expungement is available and who is eligible to initiate the process.

For example, some states may require the prosecutor's office to sign off on any expungement request. Or you may have to wait a certain period of time before applying for expungement. Any of these requirements can delay or obstruct the expungement process.

Can You Get a DUI Conviction Expunged?

In certain states, you can get a conviction for driving under the influence (DUI) or driving while intoxicated (DWI) expunged. In most of these states, you must wait for quite some time after your conviction to apply for the expungement. Below is a quick guide to which states allow the expungement of a DUI.

Only the states where you can get a DUI expunged are included in this list. The other states do not allow offenders to get their DUI arrests or convictions removed from their criminal history.

• Arizona
• Arkansas
• California
• Connecticut
• Indiana
• Iowa
• Kansas
• Kentucky
• Minnesota
• Missouri
• Montana
• New Hampshire
• North Carolina
• Oklahoma
• Pennsylvania
• Rhode Island
• South Dakota
• Utah
• Wyoming

If you drink and drive, and the court convicts you of DUI in any of these states, you should talk to a criminal defense attorney to see if you can have the conviction expunged.

When Expungement Is Not an Option: Examples From Specific Jurisdictions

In Alabama, you can only request an expungement for crimes for which you were not convicted. For example, if police arrest you and charge you with a crime, but the jury finds you not guilty, you can apply to expunge the arrest record. You can also pursue an expungement if the prosecutor chooses not to pursue the charges (nolle prosequi).

Arizona does not offer an expungement per se. However, you can petition the court to “set aside" an arrest or a conviction as long as you complete the terms of the sentence. Certain violent and serious offenses cannot be set aside in this way.

In California, offenders can petition the court for a dismissal. If the court grants this request, it will withdraw a guilty plea or set aside a guilty verdict at trial; enter a not-guilty plea in the record; and set aside and dismiss the conviction. The end result is that an offender's records will show a dismissal rather than a conviction. However, this does not apply to certain crimes and is at the court's discretion.

Connecticut does not offer traditional expungements of criminal charges or convictions. They do have a special program for youthful offenders, but adults do not have the option of having their criminal record expunged.

Florida offers multiple processes to expunge and seal criminal records. However, these are only available if you were not convicted of the criminal charges. In addition, certain arrest and criminal records are automatically sealed or expunged without a petition or application.

In Georgia, your only option is to request a “records restriction" to ensure your criminal record is not publicly available. The arrest and conviction will remain on your criminal record as far as the courts, law enforcement, and other government agencies are concerned.

Indiana law only allows expungements for misdemeanors and nonviolent felonies. It's important to note that there are lengthy waiting periods for both types of crimes. You must wait five years to get a misdemeanor expunged and eight years for a felony.

New York does not allow expungement of criminal convictions, but individuals can seal their records. Once sealed, criminal records are essentially invisible to the public, but law enforcement organizations, government agencies, the FBI, and other designated organizations can still see them. Any misdemeanors or felonies will appear if a prospective employer does a background check.

In Tennessee, you cannot request an expunction if you were convicted of a criminal offense. The same is true in Texas.

Utah's law is a bit confusing. You cannot get an expungement for first-degree convictions. However, you may be able to apply for an expunction if you were convicted of a second-degree offense, as long as your crime didn't involve the use of force.

For detailed information on the expungement laws in your state, contact a local expungement attorney.

Talk to an Attorney to Find Out if Expungement Is an Option in Your Case

As you can see, whether expungement is an option for you depends on the laws and procedures of your state. If you were arrested or convicted in another state, their laws will apply.

Overall, you can benefit from expungement in many ways. You should investigate whether expungement is an option for you. Contact a local criminal defense attorney to discuss your case and determine if your conviction is eligible for expungement.