Expungement Is Not Always an Option

Expungement (also called expunction) is the process in which an individual can clear a conviction off of their criminal record. It is important to remember, however, that expungement of an arrest or a criminal conviction is not an option in all states and counties (sometimes called "jurisdictions").

When Expungement Is Not an Option: Overview

While most people with convictions would like the option to eventually clear their criminal record, expungement isn't always on option. Depending on the jurisdiction in which 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 a person is acquitted (cleared) of an offense (i.e., charges are dismissed).
• Be possible only when a criminal conviction is reversed (i.e., after a successful appeal of the conviction).

Of those states that offer some form of expungement of criminal records, each also has its own set of criteria setting forth when expungement is available and who is eligible to initiate the process.

So, for example, some states may require the prosecutor's office to sign off on any expungement request or that offenders wait a certain period of time pass before applying for expungement. There may even be further requirements to remove any arrest or criminal records from other state agencies in addition to those records held by the court. Any one of these requirements can delay or obstruct the expungement process.

When Expungement Is Not an Option: Examples From Specific Jurisdictions

Arizona is one state that doesn't allow expungement of a criminal record. A person can, however, get a "Set Aside," which shows that the person completed their sentence and allows them to vote, serve on a jury, and possess a firearm. Certain violent and serious offenses cannot be set aside in this way.

New York also does not allow expungement of criminal convictions, but individuals can seal their records. Once sealed, those criminal records are essentially invisible to the public, but can still be viewed by law enforcement organizations, government agencies, and other designated organizations.

In California, offenders can petition the court for a dismissal. If granted, the court can withdraw a guilty plea or set aside a guilty verdict at trial, enter a not guilty plea in the record, and then 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 some convictions (including any that resulted in a prison sentence) and is at the discretion of the court.

Florida, on the other hand, offers multiple different processes for expunging and sealing criminal records, but certain Florida records are automatically sealed or expunged without a petition or application.

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

As you can see, whether or not expungement is an option will depend on the laws and procedures of the state where you were arrested or convicted. However, expungement is a powerful tool that can benefit your life in several areas so it is worth investigating its availability as well as your eligibility. Contact a local criminal defense attorney to discuss your case and find out if your conviction is eligible for expungement.