Expungement of Criminal Records: The Basics
You may be able to seal arrest or conviction records. Here's how.
A criminal record can create difficult downstream consequences whether you (or your child) was arrested or convicted (or both). For example, employers and landlords commonly ask job applicants and apartment seekers whether they have ever been convicted of (or perhaps even arrested for) a criminal offense. Employers might not hire and landlords might not rent to people who answer "yes" to these questions. The good news is that, in some cases, you may be able to get an arrest or conviction expunged from your record. Read on to learn more about the expungement process.
What Is Expungement?
“Expungement” refers to the process of sealing arrest and conviction records. Virtually every state has enacted laws that allow people to expunge arrests and convictions from their records. Though the details can vary from one state to the next, most states' laws provide that once an arrest or conviction has been expunged, it need not be disclosed, including to potential employers or landlords. For example, assume that Joe was convicted of petty theft and later had the conviction expunged. This was Joe's only brush with the criminal justice system. If Joe applies for a job and the application asks, "Have you ever been convicted of a criminal offense?" Joe can honestly answer, "No."
Eligibility for Expungement
Since an expungement can offer a fresh start of sorts, one of the most important actions that people who have been arrested or convicted can take is to investigate their jurisdiction's expungement procedures. Start by checking with your county's criminal court, or even the law enforcement agency that handled your arrest. Specifically, ask the following questions about eligibility for expungement and the procedure that's involved:
- Is a particular offense eligible for expungement? For example, a jurisdiction may allow expungement only for arrests and misdemeanor convictions and not allow felony convictions to be expunged.
- When is a person eligible for an expungement? For example, expungement may be available only after people have finished serving their sentences, including any term of probation. (But, if there's a good reason, a judge may shorten a period of probation in order to allow expungement to take place earlier.)
- What does the expungement process involve? Expungement doesn't necessarily require hiring an attorney. Many courts have forms available, with titles along the lines of "Motion for Expungement."
- What are the consequences of expungement? Even if a conviction has been expunged, could it still show up in some circumstances? For example, police departments and some licensing boards may be able to find out about job applicants' expunged records.
Getting a "Certificate of Actual Innocence"
A Certificate of Actual Innocence is perhaps the most powerful form of expungement. This certificate does more than seal a prior record, it proves that a record should never have existed at all. Let's say that Joe is arrested for vandalism for spraying buildings with graffiti, but the charges are later dropped. Or perhaps Joe is charged with vandalism, and he goes to trial and is found not guilty. In either situation, Joe might seek to obtain a certificate establishing that he was factually innocent of the offense.
Drug Crimes and Juvenile Offenses
In many jurisdictions, people who have been arrested or convicted for drug crimes and juvenile offenders may have an easier path to expungement. (Learn more about drug arrests and convictions in Nolo's article Drug Laws and Drug Charges.)
Drug offenses. Many people arrested for drug offenses are eligible for diversion programs. These programs typically provide for the expungement of records following the satisfactory completion of a program.
Juvenile offenses. People who were arrested or convicted as juvenile offenders may have an easier time getting their criminal records expunged or sealed. Usually this is an option once the person reaches the age of 18, and they've otherwise stayed out of trouble with the law. Learn more in Nolo's article Sealing Juvenile Court Records.