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Expungement

Overview

An expungement proceeding is a civil action to have a criminal record sealed. Once an individual’s criminal history is expunged, they can, for all intents and purposes, deny the existence of the criminal conviction and criminal history to those who inquire into the individual’s background – with certain exceptions.

Computers Make Criminal Records Available to All

Criminal records did exist in various forms over the years, but for the most part, because of the difficulty involved in obtaining that information, it was accessible only to law enforcement and government agencies. As technology advanced, computers became available to everyone. Enormously large criminal record databases from the federal government, as well as all 50 states – and also from many countries around the world – were catalogued and made available to virtually anyone who seeks access. Because of this easy access, there is more of an interest now than ever before in expungements.

Expungement Laws Evolved Over Time

Eventually, legislators became sensitive to the difficulties that faced those with misdemeanor and felony backgrounds. Over time, state legislators responded with expungement laws. Not surprisingly, every state that allows expungement has its own particular laws and procedures. Because laws vary tremendously from state to state, there is potential difficulty for individuals who have had their records expunged in one state and who move to another state for school, employment or other reason. The biggest concern is whether one state recognizes the expunged record from another state. Nevertheless, expungement offers a solution to a difficult situation – for those who qualify.

Summary

Various states offer convicted offenders the opportunity to expunge their criminal records. The reality is that the records always exist at some level; the expungement simply allows the applicant to deny a conviction. For example, an individual with an expunged record will be required to reveal that information upon application to law school or upon application to take the state bar exam. Expungements do help but the effect is somewhat limited by nature. Still, an expungement can provide individuals with opportunities that were not available prior to the expungement.

Reasons for Expungements

There are numerous reasons why an individual would want their criminal record expunged. There are endless negative social consequences that result from an arrest or conviction record. It is important to note that even if a charge is dismissed, the arrest permanently remains on the arrestee’s criminal record. Before the introduction of computers and the internet, an individual’s arrest or conviction could be extremely difficult, if not almost impossible, to discover. Future employers and those who had an interest in obtaining background information would find it nearly impossible to discover the criminal history of a felon who denied having one. For example, a future employer in California would not know where to search if an applicant moved from New York and did not reveal that information.

Eligibility for Expungement

There are various factors that the court will look to in granting an expungement. For the most part, the greatest concern is whether the individual has been successfully rehabilitated and whether the public – as well as the applicant – is best served by granting the expungement. Factors that are taken into consideration include:

  • Whether the applicant has had any additional arrests or convictions
  • Whether the applicant’s offense was excessively dangerous and harmful
  • Whether the applicant is presently considered a dangerous person
  • Whether there has been a sufficient waiting period between the present date and the date of the arrest and/or conviction
  • Whether the applicant has successfully fulfilled all the release requirements of the prior arrest and/or conviction, such as probation
  • Whether the applicant successfully attended all court ordered treatment, such as alcohol and drug programs, batterers courses, anger management classes, etc.
  • Whether all fines were paid
  • Whether restitution was made to the aggrieved party

Crimes That Cannot Be Expunged

Various crimes that are of a dangerous nature will disqualify an expungement request. These vary from state to state but usually include:

  • Sex crimes, rape, child molestation, etc.
  • Dangerous offenses, including murder and serious felonies
  • Offenses involving an underage victim
  • Pornography charges

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THE CONTENT ON THIS PAGE IS
CONTRIBUTED
BY

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Michael S. Berg
Attorney At Law
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