You are reading this because you or someone close to you has a criminal record which appears in background checks and blocks access to employment, housing, education, licensing, immigration, etc., etc. There are literally thousands and thousands of temporary and permanent “collateral consequences” which automatically attach to a criminal record.
Cleaning-up those criminal records with government agencies will, however, only result in access to those records being restricted and out of public view. Be aware that those criminal records will, with very few exceptions, remain with the government agencies and can surface again as a prior conviction, even after obtaining an order to expunge or seal the criminal record.
Also, Big Data is now big business. Data Brokers who obtained your criminal record information years ago have sold and re-sold it to other Data Brokers who, in turn sold it to others. Very few criminal history background checks performed by private companies use data from original sources. So be aware that even with a court order expunging or sealing a criminal record, that information may continue to re-surface in background checks performed long into the future.
You should also understand that this legal procedure has limits. Not all types of convictions can be expunged, circumstances may exist that make a conviction ineligible for expungement, and certain employers are allowed to seek and use information on an expunged conviction.
What exactly is an expungement?
The terms “expungement” and “sealing” are often used interchangeably, but there are some differences. “Sealing” is when a criminal record is hidden from the general public. “Expunging” generally means that, but can also mean under certain limited conditions that the criminal record is completely destroyed. Physical destruction of criminal records is extremely rare and has even been denied to ex-felons who were completely exonerated after spending years in prison.
Each state has its own definition of expungement and record sealing based on different rules and laws. Some states may not use the term “expungement,” but rather use terms like “expunction,” “sealing,” “removal,” “set aside,” or “destruction” of criminal records. And even if the term “expungement” is used, the records generally do not completely “disappear” and are generally still available to law enforcement.
The rules, procedures and forms generally break down into the following: Was your criminal record created while you were a juvenile or an adult? This distinction results in completely different rules, procedures and forms which you will need to follow. Also, were you arrested only, or were you convicted? Generally speaking, it is much easier to expunge an arrest record than it is to expunge a criminal conviction. The more serious the conviction, the more unlikely it will be that expungement or record sealing is available.
If these remedies are not available, you will need to consider applying for a pardon, a waiver, a certificate of rehabilitation, Ban the Box legislation, or other form of relief from the collateral consequences of a criminal conviction.
For adults, arrest and conviction records usually aren’t automatically expunged or sealed after a period of years. You generally have to file a written application in court and follow various rules for expungement. These rules can be found in the laws of the state where the conviction or arrest was made.
I was only arrested, not convicted. Is there any difference?
Being “only” arrested may still cause you problems when applying for a job, renting a house, volunteering, or other aspects of life which require a clean background check. Legally an “arrest only” record cannot be held against you, but in many jurisdictions potential employers may use an arrest as a final determining factor for not hiring you.
What can be expunged from my adult criminal record?
Generally, all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning your apprehension, arrest, detention, or trial on a criminal offense can be expunged. However, each state has rules about what can and can’t be expunged. For example, in most states:
- Arrests and convictions on serious, violent felonies usually can’t be expunged or sealed
- Expungement is available only for first-time misdemeanors or non-violent felonies
- Fingerprints, photographs, and DNA evidence may be expunged
What’s the difference between a misdemeanor and a felony?
Most states break their crimes into two major groups: felonies and misdemeanors. Whether a crime falls into one category or the other depends on the potential punishment. If a law provides for imprisonment for longer than a year, it is usually considered a felony. If the potential punishment is for a year or less, then the crime will most likely be considered a misdemeanor.
In some states, certain crimes are described on the books as “wobblers,” which means that the prosecutor may charge the crime as either a misdemeanor (carrying less than a year’s jail time as punishment) or a felony (carrying a year or more).
Generally speaking, it is easier to expunge arrest and conviction records for misdemeanors than it is for felonies. The more serious the charged offense, the more difficult it becomes to expunge it from your criminal record. This is why it is important to know the criminal statute which you were accused of violating and whether it is a misdemeanor or a felony.
What does “nole contendere” mean? Can this be removed from my criminal record?
Nolo contendere, in criminal trials, in some common law jurisdictions, is a plea where you neither admit nor dispute a criminal charge, serving as an alternative to pleading guilty or not guilty. Its literal translation from Latin means, “I do not want to contend,” and is also referred to as a plea of no contest, to stand mute, or, more informally, a nolo plea. Nolo contendere, while not technically a guilty plea, has the same effect as a guilty plea, and is often offered as a part of a plea bargain.
A plea of nolo contendere in many jurisdictions is not a right, and carries various restrictions on its use. In the United States, state law determines whether, and under what circumstances a defendant may plead no contest.
A conviction arising from a nolo plea is subject to any and all penalties, fines, and forfeitures of a conviction from a guilty plea, and can be considered as an aggravating factor in future criminal actions. However, unlike a guilty plea, the conviction may be used to establish neither negligence per se, malice, nor whether the acts were committed at all, in later civil proceedings related to the same set of facts as the criminal prosecution.
Am I eligible for an expungement?
Eligibility for an expungement of an arrest or conviction record will be based on the laws of the state where the arrest or conviction happened. Often a number of conditions must be met before the request will be considered, including:
- A minimum length of time has passed since the arrest or conviction
- There hasn’t been any further arrests or convictions (other than minor traffic violations)
- The criminal proceedings were dismissed
- You were acquitted or found “not guilty” after a trial
- You were discharged without conviction and no criminal charges were refiled
- You were released before formal charges were filed
- Your particular offense qualifies for expungement
Can an expungement petition be denied?
Yes. Each state sets its own standards. Some factors which may contribute to a denial include:
- Time period required by law has not been met. This time period often does not begin until all confinement and probation has been completed.
- All fines and restitution orders have not been paid.
- Additional convictions exist.
- A previous expungement exists.
- Pending arrest(s).
- Court records indicate that your case is still open.
- Non-qualifying conviction or arrest.
How will I know if my petition has been approved?
In some jurisdictions, your request will be automatically approved if the prosecuting attorney does not object. Most of the time the courts will notify you of the approval or denial of your application once a decision has been reached. There may be situations where you are required to attend a court hearing in person.
If the court requires additional information they will notify you most likely in writing indicating the required additional information. It is important to respond to these types of inquiries as quickly as possible. Failure to do so may result in an automatic denial.
My criminal record has been sealed, can I now expunge it?
It depends on the state of where your record was sealed. In some states sealing and expungement mean virtually the same thing or expungements may not be available.
Can previously sealed criminal records ever be unsealed?
Possibly. The terms “expungement” and “sealing” are often used interchangeably, but there are some differences. If the laws in your state don’t allow for the physical destruction of the records, they may be unsealed in certain circumstances. Expunged records may resurface if you apply for a professional license (like a license to practice medicine or law), or if you are later charged with committing a crime. Your state laws should explain in detail when, how, and by whom sealed records may be unsealed.
If my criminal record is expunged, do I ever have to admit that I have a prior arrest or conviction?
In most states, and with some limited exceptions, after your records are sealed or expunged, you may truthfully say that you were never arrested, charged, or accused of a crime. In the eyes of the law, the entire incident never happened. In most respects, a sealing or expungement restores you to the status you occupied before being arrested or charged.
You should be aware that the federal government doesn’t have to honor the expungement, nor does an expungement of a conviction necessarily relieve a person from having to disclose it in an application for public office or on some professional license applications, such as accountants, civil engineers, lawyers, nurses, and real estate brokers. An expungement generally does not relieve the person from the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for licensure by any state or local agency.
If my expungement is granted, will the police still have access to my criminal record?
Yes. Law enforcement agencies essentially ignore expungements. Since an expunged conviction is not erased from a person’s criminal record, law enforcement agencies can, and do, routinely use such information in their investigations.
Do expunged convictions still count as prior offenses for sentencing?
Yes. Sentences for many criminal offenses are enhanced for repeat offenses. Expungement does not generally remove a prior conviction from sentencing consideration.
Are infractions eligible for expungement?
Yes and no, depending on the law of the state where the infraction occurred.
Are there any private employers who can require disclosure of expunged criminal records?
Yes. State and federal law specifically permits certain private employers to ask you about certain types of convictions, regardless of expungement. For instance, a health facility may require you to disclose an arrest or conviction for any offense specified by statute, such as a sex or drug offense, and a bank may require disclosure of any criminal offense involving dishonesty, breach of trust or money laundering, regardless of whether the conviction was expunged.
Are there other situations where I would have to disclose an expunged criminal record?
Here are five situations that may require you to disclose an expungement, depending on where you live:
- Applying for a state-issued professional license. If you’re pursuing a license to practice law in any state, you are required to disclose your expungements. Other state-licensed professions may also fall under this exception.
- Applying for a law-enforcement job. Disclosure is required for a federal law-enforcement position, such as with the FBI. In some states, you must also disclose expungements if you want to be a local police officer, or even work as support staff with the agency.
- Applying for a school-related job. Some states require expungement disclosure for any job at a school, public or private. Other jobs that involve close contact with children may also require disclosure.
- Buying a firearm or applying for a concealed carry permit. This may seem logical, but not every state requires it. If it’s required where you live, you’ll see it on the permit application.
- Running for public office. You may not be a crook, but you may be required under the laws of your State to disclose all expungements if you choose to run for elected office.
Are there any court filing or administrative fees?
Yes and they can be as high as several hundred dollars. Indigent defendants may apply for a fee waiver in most states.
If my petition is denied will I get my money back?
No. There are many factors that go into expunging a criminal record, but the final determination is at the discretion of the Court or equivalent approval authority. None of them provide for a refund of filing fees upon denial.
Are there any immigration consequences?
An expungement generally does not preclude the immigration consequences of a criminal conviction, such as deportation, denial of admission and denial of naturalization. However, in some instances it can. One example is an expungement after a simple first-time drug possession offense. In some circumstances, this can help an immigrant avoid otherwise mandatory removal and loss of immigration benefits.
How long does it take to expunge or seal my criminal record?
In most states, petitions to expunge or seal criminal records are reviewed and approved by a Judge at the end of a court hearing. The time it will take to expunge or seal your criminal record largely depends on how busy the court dockets are in the state and county where you were convicted and the complexity of your particular case. Also, if the prosecutor objects to your petition, the procedure can take a long period of time.
Is there anything I can do to speed up this process? What if I paid extra?
No. Gathering the necessary paperwork, making the appropriate court filings and getting yourself set for hearing on a court docket takes time. Anyone telling you they can speed up the court system is lying; watch out for this common scam.
Is obtaining an expungement ever guaranteed?
No. It is impossible to guarantee the final decision of a Judge. However, if your petition is denied, there are still steps you can take to clean-up your record.
If I’ve had my criminal record expunged and I am later placed under oath and asked about the expunged matter, am I committing perjury if I deny that it ever happened?
You would be committing perjury only if you are asked in the context of one of the exceptions to the expungement statute (different for every state). For example, if you deny it in the context of a sworn application for employment in law enforcement, you would be committing an offense. In all contexts other than the exceptions to the expungement statute, you can deny that the matter ever happened. You can deny it under oath. You would not be committing perjury or false swearing.
Juvenile Criminal Record FAQs
Are juvenile criminal records ever “automatically” expunged?
Most states have laws that allow, or even require, juvenile records to be expunged once the juvenile reaches a certain age. In some cases, the records are destroyed. Sometimes they are simply “sealed” or hidden from the public.
In many states, juvenile records are sealed automatically and immediately. These laws allow a minor who has committed criminal or delinquent acts, to erase his record permanently, usually at the age of 17 or 18. The idea is to allow the youth offender to enter adulthood with a “clean slate,” shielding him from the negative effects of having a criminal record.
For juveniles, court and arrest records are usually sealed automatically once a juvenile is arrested and a trial or “adjudication” begins. However, in most states, juveniles must file a written application to later have their records expunged or destroyed.
If I went through a court process for an offense committed when I was a minor, do I have a juvenile criminal record?
Maybe. Not every youth is tried in juvenile court. Some youth are tried in adult court, which will result in an adult conviction and an adult criminal record.
How do I obtain information about my juvenile adjudication?
It is best to get records from three sources:
- The FBI criminal background report;
- The state rap sheet; and
- The juvenile court with jurisdiction over the location where the arrest or adjudication took place.
You may also try to obtain records from the police or probation department, the district or state attorney’s office, or your private or public defender.
What is juvenile crime information?
Juvenile crime information is the summary information concerning your passage as a juvenile through the juvenile justice system. Juvenile crime information may include data supplied by law enforcement agencies, juvenile community corrections officers, prosecutors, courts and correctional facilities.
Pardon & Other Relief FAQs
Is an expungement the same as a pardon?
The end result may be similar but they are two completely different procedures. A pardon (also called clemency) is typically granted by a Board of Pardons or other such panel appointed by the Governor of your state. An expungement can be granted only by a Judge. In most states a pardon carries the weight of an expungement, or better.
Can employers see my criminal record if pardoned?
This varies based on your state of filing, but pardons normally do not expunge an arrest or conviction. Pardon normally represent that the governor has forgiven you of your crime, but not forgotten. In most cases, your criminal record will be annotated that this particular incident has been granted a pardon.
In some states an approved pardon will establish grounds for you to file with the court an expungement which normally would not be eligible unless a pardon is granted.
What is a Certificate of Rehabilitation?
A California Certificate of Rehabilitation is part of the California record-clearing process. While it doesn’t erase your criminal record, it is a court order that states that your criminal history is just that…a thing of the past. It essentially declares you a law abiding citizen.
This Certificate is a bold statement that tells society that you have moved on to become an honest, upstanding “rehabilitated” member of the community. And unlike a motion to seal and destroy your arrest records, a Certificate of Rehabilitation applies to actual criminal convictions, not just arrests. It also qualifies you for a pardon from the Governor.
How do I apply for a Presidential Pardon?
For FAQs about Presidential Pardons, click here to go to the U.S. Department of Justice website.