What is expungement? What types of criminal cases can be expunged? These are common questions associated with that mysterious, misunderstood and crossword-friendly word. So, what EXACTLY is expungement.
Expungement is the common legal term for the sealing of records related to court proceedings. There are many common misconceptions about the process and what records are eligible to be sealed.
In order to explain, certain concepts need to be understood. All records pertaining to criminal proceedings involving adults are public record. This is in line with open records laws for all government proceedings. So if one is charged with a crime in this day and age, that person can typically in most jurisdictions follow the progress of their case online. You can see what motions have been filed, subpoenas issued, and scheduled court dates.
In general, this is a good thing. It is a convenience for all parties involved in the case to be able to view it so easily. The downside is that an employer, family member, or any person, can search a name online and view the same records for any purpose whatsoever. This becomes an issue, when, like most people, they don’t understand what they are viewing or the legal language used.
A common example: A client with no prior record is charged with domestic violence arising from a dispute with his wife. The case becomes a public court record. The client hires me and we are able to work out dismissal of the charges. The client is happy and walks out of court with no criminal record. All good, right? Not so fast.
While it is true that the client has no conviction on his criminal record that law enforcement keeps and a person or company running a background check would find. The court clerk’s office simply adds the term “Dismissed” at the bottom of the page under the heading of “Disposition”. Much more prominent at the top of the page under the client’s name is the original charge of domestic violence.
So employers doing background checks that include public records will see that the client was charged and either deny employment altogether or want an embarrassing explanation. A motion needs to be filed with the court, requesting that it direct the clerk to remove the case from public record. At the conclusion of the case, when the client is eligible, I typically let my clients know about the option and file the motion immediately for a small additional fee to avoid future problems.
Actual convictions on criminal charges are also eligible for expungement under certain strict guidelines. The case must be the only thing on your record and the case must be completely closed. All fines and costs paid. Probation or any other court-imposed duties like counseling or rehab completed. You must then wait 1 year from the date your case officially closes to file for expungement on a misdemeanor and 3 years on a felony. Any new charges of any kind will automatically disqualify a person. Certain charges are also not able to be expunged for any reason, most notably OVI cases.
Just like dismissed cases a motion needs to be filed and a court date will be set. An attorney can make all the difference in this situation since there was a conviction involved and the prosecutor normally objects. A judge must weigh whether the damaging effects of a criminal record to an individual and their ability to work or go to school is greater than the public’s and law enforcement’s interests in knowing about a citizen’s record. I have had great success securing expungements for my clients over the years.
As always, a consultation with my office is the best way to answer questions and determine the specific details of your case and whether or not you are eligible to have a case expunged. Call today.