Expungement
Encyclopedia
In the common law
legal system
, an expungement proceeding is a type of lawsuit
in which a first time offender of a prior criminal
conviction seeks that the records of that earlier process be seal
ed, thereby making the records unavailable through the state or Federal repositories. If successful, the records are said to be "expunged". Black's Law Dictionary
defines "expungement of record" as the "Process by which record of criminal conviction is destroyed or sealed from the state or Federal repository." While expungement deals with an underlying criminal record, it is a civil action
in which the subject is the petitioner or plaintiff asking a court to declare that the records be expunged.
A very real distinction exists between an expungement and a pardon
. When an expungement is granted, the person whose record is expunged may, for most purposes, treat the event as if it never occurred. A pardon (also called “executive clemency”), on the other hand, does not “erase” the event. Rather, it constitutes forgiveness. In the United States, an expungement can be granted only by a judge, while a pardon can be granted only by a governor (for state law offenses) or the President (for federal offenses). In Nebraska
pardons are by vote of the governor, attorney general and secretary of state.
Each jurisdiction whose law allows expungement has its own definitions of expungement proceedings. Generally, expungement is the process to "remove from general review" the records pertaining to a case. In many jurisdictions, however, the records may not completely "disappear" and may still be available to law enforcement, to sentencing judges on subsequent offenses, and to corrections facilities to which the individual may be sentenced on subsequent convictions.
Requirements often include one or more of the following:
Types of convictions that are often not eligible for expungement include:
In some jurisdictions, all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person's detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system can be expunged. Each state sets its own guidelines for what records can be expunged, or for whether expungements are available at all. The petitioner requesting an expungement of all or part of their record will have to complete forms and instructions to submit to the appropriate authority. The petitioner may choose to hire an attorney to guide them through the process, or he/she can decide to represent themselves. This is called appearing pro se.
Most jurisdictions have laws which allow - or possibly even require - the expungement of juvenile records once the juvenile reaches a certain age. In some cases, the records are destroyed; sometimes they simply are "sealed." The purpose of these laws is to allow a minor who was accused of criminal acts, or in the language of many juvenile courts, "delinquent acts," to erase his record, typically at the age of 17 or 18. The idea is to allow the juvenile offender to enter adulthood with a "clean slate," shielding him or her from the negative effects of having a criminal record.
the term "spent conviction" is used. The relevant legislation is the Rehabilitation of Offenders Act 1974
. In the data retention model of the Police National Computer
, arrests which do not lead to a finding of guilt "step down" as soon as the relevant decision is made (typically a "not guilty" verdict or a dismissal of charges) and become visible to law enforcement only. Records of cautions and minor convictions also step down after a specified period of time.
's expungement equivalent is "setting aside" a conviction
. Arizona's setting aside statute allows a defendant to petition the court to have a conviction set aside after the terms of the sentence are met. If the court grants the petition, the defendant is "released from all penalties and disabilities resulting from the conviction other than those imposed by the Department of Transportation." The conviction can be used in any subsequent criminal prosecution.
's expungement law permits someone convicted of a crime to file a Petition for Dismissal with the court to re-open the case, set aside the plea, and dismiss the case. In order for one to qualify for expungement, the petitioner must have completed probation, paid all fines and restitution, and not currently be charged with a crime. If the requirements are met for eligibility, a court may grant the petition if it finds that it would be in the interest of justice to do so. A successful expungement will not erase the criminal record, but rather the finding of guilt will be changed to a dismissal. The petitioner then can honestly and legally answer to a question about their criminal history, with some exceptions, that they have not been convicted of that crime. What is actually stated on the record of the case is that the case was dismissed after conviction. If the petitioner is later convicted of the same crime again, then the expungement may be reversed.
), they must apply to the Superior Court for a Certificate of Rehabilitation (CR). The CR does not remove or expunge anything negative from the individuals record; however, it places something positive on it. Among other requirements, the applicant must live in California and have done so for at least 5 consecutive years prior to applying, and been law-abiding for 7 years starting from the sooner of their release from prison or court supervision. After they meet all requirements and receive a CR, certain of their rights are restored. and a request for a pardon
is automatically sent to the governor.
law allows for expungement of criminal records that do not include a conviction, and permits the sealing or expungement of records where adjudication was withheld. To be eligible for sealing or expungement, the defendant must not have been convicted of or have pled guilty to any criminal offense, and must not have previously received an expungement or sealing. Some criminal records are ineligible for expungement or sealing if they resulted in a final disposition of Adjudication Withheld. A Certificate of Eligibility from the Florida Department of Law Enforcement
is required prior to petitioning the court for an order to seal or expunge a record. There is a $75.00 charge for the Certificate of Eligibility. A successful sealing will limit disclosure of the record to only the Florida Bar, the Florida Department of Children and Families, the Florida Board of Education, law enforcement and in a few other circumstances. An expunged record will be unavailable for dissemination to any private or public entity, though the four agencies that can see a sealed record will be informed only that a record has been expunged.
law allows the sealing or expungement of parts of the records of a conviction. Sealing a conviction prevents the public, including employers, from gaining access to that record. To be eligible for sealing of a conviction record in Illinois one must have been sentenced to supervision. A waiting period of four years also is required, beginning at the time of discharge from supervision, where no convictions were entered. Some misdemeanors are ineligible for sealing. All felony convictions are ineligible for sealing except for class 4 felony drug possession and prostitution offenses.
has two forms of expungement, one generally applicable to criminal cases and a unique one for the crime of being a minor in possession
of alcohol
.
A person is eligible for expungement in Missouri if the arrest was based on false information and the following conditions exist:
If a person qualifies, in order to have the records expunged, they must file a verified petition for expungement in the civil division of the Circuit Court
in the county of the arrest. The court sets a hearing on the matter no sooner than thirty days after the petition was filed. If the court finds that the petitioner is entitled to expungement of any record, it will enter an order directing expungement.
Records expunged under this provision still may be opened to law enforcement if the person is charged with a subsequent offense or if any of the requirements of expungement no longer are met.
enacted a special new section in the state's Liquor Control Law allowing for the complete and total expungement for the offense of being a minor in possession
of alcohol. Unlike ordinary expungement, the MIP expungement exists with the explicit legislative mandate that the effect of an order of expungement under it "shall be to restore such person to the status occupied prior to such arrest, plea or conviction, as if such event had never happened."
After not less than one year since the offense was disposed of, or upon reaching the age of twenty-one, whichever occurs first, a person who pleaded guilty to or was found guilty of the crime of minor in possession of alcohol for the first time, and who since such conviction has not been convicted of any other alcohol-related offense, may apply to the civil division of the circuit court of the county in which the person was sentenced for an order to expunge all official records of the arrest, plea, trial and conviction.
The person also must meet the following requirements:
If a person has had an MIP record expunged this way, the law states they cannot "be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of failure to recite or acknowledge such arrest, plea, trial, conviction or expungement in response to any inquiry made for any purpose whatsoever."
A person is only entitled to one MIP expungement under this special provision.
statues allows any person whose arrest has resulted in a finding of not guilty, or whose case was dismissed or not prosecuted, to petition for annulment of the arrest record at any time, free of charge.
Any person who has been convicted may petition for annulment after he/she has completed all requirements of their sentence, including probation, and paid a $100 fee to the department of corrections to cover the cost of a investigation into the criminal history of the petitioner:
The person whose record is annulled shall be treated in all respects as if he had never been arrested, convicted or sentenced, except that, upon conviction of any crime committed after the order of annulment has been entered, the prior conviction may be considered by the court in determining the sentence to be imposed, and may be counted toward habitual offender status.
In any application for employment, license or other civil right or privilege, or in any appearance as a witness in any proceeding or hearing, a person may be questioned about a previous criminal record only in terms such as ""Have you ever been arrested for or convicted of a crime that has not been annulled by a court?
statutes allow expungement of conviction of many indictable offenses, disorderly persons offenses, municipal ordinances, and juvenile adjudications. The statutes disallow expungement for convictions if the applicant has been convicted of two or more indictable offenses, or four or more disorderly persons offenses. If the applicant has a combination of one criminal conviction and up to two disorderly persons convictions, the criminal conviction can be expunged when the waiting period has elapsed, but the disorderly persons conviction can never be expunged. A person who has had an indictable charge dismissed on account of a diversion cannot thereafter have a criminal or disorderly persons conviction expunged
The waiting period was ten years for indictable convictions, and remains five years for disorderly offenses, and two years for municipal ordinances. In 2010, the waiting period on indictable convictions was lowered to five years. However, applicants who have not waited the full ten years must satisfy the judge that granting the expungement is in the public interest. No such showing need be made once the full ten years has elapsed. Waiting periods begin to run on the date of sentencing, the date all fines are paid, or the completion date of probation or parole, whichever occurs last. Not all offenses are eligible and several new ineligible offenses were added by the 2010 changes, including convictions that took place before the changes.
There is no waiting period for most dismissals and acquittals. However, if the dismissal arose on account of a diversion, there is a six month waiting period. If the acquittal resulted from a finding of insanity or lack of mental capacity, the offense cannot be expunged. Motor vehicle offenses cannot be expunged.
Expungements give the person the legal right to state, even under oath, that the event never occurred. All civil disabilities associated with the conviction are eliminated. However, expunged records must still be recited in certain situations. These situations include applications for employment with a law enforcement agency, applications for employment in the judicial system, and applications for a subsequent expungement.
Not all states honor New Jersey Expungements. White v. Thomas, 660 F.2d 680, 685 (5th Cir., 1981), cert. den., 455 U.S. 1027 (1982), held that each state may interpret its own law to determine what recognition it may give to the expungement order of a sister state.
Criminal Procedure Law 160.50 permits the "sealing" of cases where charges were dismissed, vacated, set-aside, not filed, or otherwise terminated. Otherwise, New York does not allow expungements, or "sealings," of cases where a conviction was entered, except for some older controlled substance, marijuana, and loitering offenses. Sealing a record under 160.50 will prevent the public from having access or seeing the records, including fingerprint
cards, photographs, court entries, and other information related to the case. The record may still be made available to some entities, such as courts and law enforcement.
New York also permits the expungements of non-criminal dispositions (violations and traffic infractions, such as disorderly conduct
) through New York Criminal Procedure Law 160.55. Misdemeanor and felony adjudications are not eligible.
Effective 2009, New York Criminal Procedure § 160.58, an petitioner convicted of most felony drug, marijuana, or Willard non-drug eligible crimes may request to have their records for those crimes sealed if they successfully complete DIVERSION, DTAP, or a similar substance abuse treatment program recognized by the court. The sealing will also extend to up to three of the petitioners misdemeanor drug convictions.
is a "sealing." Sealing allows first-time offenders to petition the court for the sealing of a conviction record. To be eligible, one must not have any current charges pending, or prior or subsequent criminal convictions, other than minor misdemeanors and those arising from the same incident. Completion of the court's sentence (fines, restitution, jail/prison, probation, etc.) and a waiting period from the date of discharge is also required (one year for misdemeanors or three years for felonies). Some serious offenses are ineligible.
Order setting aside conviction or record of arrest
• fees
• prerequisites
• limitations
(1)(a) At any time after the lapse of three years from the date of pronouncement of judgment, any defendant who has fully complied with and performed the sentence of the court and whose conviction is described in subsection (5) of this section by motion may apply to the court where the conviction was entered for entry of an order setting aside the conviction; or
(b) At any time after the lapse of one year from the date of any arrest, if no accusatory instrument was filed, or at any time after an acquittal or a dismissal of the charge, the arrested person may apply to the court that would have jurisdiction over the crime for which the person was arrested, for entry of an order setting aside the record of the arrest. For the purpose of computing the one-year period, time during which the arrested person has secreted himself or herself within or without the state is not included.
(2)(a) A copy of the motion and a full set of the defendant’s fingerprints shall be served upon the office of the prosecuting attorney who prosecuted the crime or violation, or who had authority to prosecute the charge if there was no accusatory instrument filed, and opportunity shall be given to contest the motion. The fingerprint card with the notation "motion for setting aside conviction," or "motion for setting aside arrest record" as the case may be, shall be forwarded to the Department of State Police bureau of criminal identification. Information resulting from the fingerprint search along with the fingerprint card shall be returned to the prosecuting attorney.
(b) When a prosecuting attorney is served with a copy of a motion to set aside a conviction under this section, the prosecuting attorney shall provide a copy of the motion and notice of the hearing date to the victim, if any, of the crime by mailing a copy of the motion and notice to the victim’s last-known address.
(c) When a person makes a motion under subsection (1)(a) of this section, the person must pay a fee of $80. The person shall attach a certified check payable to the Department of State Police in the amount of $80 to the fingerprint card that is served upon the prosecuting attorney. The office of the prosecuting attorney shall forward the check with the fingerprint card to the Department of State Police bureau of criminal identification.
(3) Upon hearing the motion, the court may require the filing of such affidavits and may require the taking of such proofs as it deems proper. The court shall allow the victim to make a statement at the hearing. Except as otherwise provided in subsection (12) of this section, if the court determines that the circumstances and behavior of the applicant from the date of conviction, or from the date of arrest as the case may be, to the date of the hearing on the motion warrant setting aside the conviction, or the arrest record as the case may be, it shall enter an appropriate order that shall state the original arrest charge and the conviction charge, if any and if different from the original, date of charge, submitting agency and disposition. The order shall further state that positive identification has been established by the bureau and further identified as to state bureau number or submitting agency number. Upon the entry of the order, the applicant for purposes of the law shall be deemed not to have been previously convicted, or arrested as the case may be, and the court shall issue an order sealing the record of conviction and other official records in the case, including the records of arrest whether or not the arrest resulted in a further criminal proceeding.
(4) The clerk of the court shall forward a certified copy of the order to such agencies as directed by the court. A certified copy must be sent to the Department of Corrections when the person has been in the custody of the Department of Corrections. Upon entry of the order, the conviction, arrest or other proceeding shall be deemed not to have occurred, and the applicant may answer accordingly any questions relating to its occurrence.
(5) The provisions of subsection (1)(a) of this section apply to a conviction of:
(a) A Class C felony, except for criminal mistreatment in the first degree under ORS 163.205 (Criminal mistreatment in the first degree) when it would constitute child abuse, as defined in ORS 419B.005 (Definitions), or any sex crime.
(b) The crime of possession of the narcotic drug marijuana when that crime was punishable as a felony only.
(c) A crime punishable as either a felony or a misdemeanor, in the discretion of the court, except for:
(A) Any sex crime; and
(B) The following crimes when they would constitute child abuse as defined in ORS 419B.005 (Definitions):
(i) Criminal mistreatment in the first degree under ORS 163.205 (Criminal mistreatment in the first degree); and
(ii) Endangering the welfare of a minor under ORS 163.575 (Endangering the welfare of a minor) (1)(a).
(d) A misdemeanor, including a violation of a municipal ordinance, for which a jail sentence may be imposed, except for endangering the welfare of a minor under ORS 163.575 (Endangering the welfare of a minor) (1)(a) when it would constitute child abuse, as defined in ORS 419B.005 (Definitions), or any sex crime.
(e) A violation, whether under state law or local ordinance.
(f) An offense committed before January 1, 1972, that if committed after that date would be:
(A) A Class C felony, except for any sex crime or for the following crimes when they would constitute child abuse as defined in ORS 419B.005 (Definitions):
(i) Criminal mistreatment in the first degree under ORS 163.205 (Criminal mistreatment in the first degree); and
(ii) Endangering the welfare of a minor under ORS 163.575 (Endangering the welfare of a minor) (1)(a).
(B) A crime punishable as either a felony or a misdemeanor, in the discretion of the court, except for any sex crime or for the following crimes when they would constitute child abuse as defined in ORS 419B.005 (Definitions):
(i) Criminal mistreatment in the first degree under ORS 163.205 (Criminal mistreatment in the first degree); and
(ii) Endangering the welfare of a minor under ORS 163.575 (Endangering the welfare of a minor) (1)(a).
(C) A misdemeanor, except for endangering the welfare of a minor under ORS 163.575 (Endangering the welfare of a minor) (1)(a) when it would constitute child abuse, as defined in ORS 419B.005 (Definitions), or any sex crime.
(D) A violation.
(6) Notwithstanding subsection (5) of this section, the provisions of subsection (1) of this section do not apply to:
(a) A conviction for a state or municipal traffic offense.
(b) A person convicted, within the 10-year period immediately preceding the filing of the motion pursuant to subsection (1) of this section, of any other offense, excluding motor vehicle violations, whether or not the other conviction is for conduct associated with the same criminal episode that caused the arrest or conviction that is sought to be set aside. Notwithstanding subsection (1) of this section, a conviction that has been set aside under this section shall be considered for the purpose of determining whether this paragraph is applicable.
(c) A person who at the time the motion authorized by subsection (1) of this section is pending before the court is under charge of commission of any crime.
(7) Notwithstanding subsection (5) of this section, the provisions of subsection (1)(a) of this section do not apply to criminally negligent homicide under ORS 163.145 (Criminally negligent homicide), when that offense was punishable as a Class C felony.
(8) The provisions of subsection (1)(b) of this section do not apply to:
(a) A person arrested within the three-year period immediately preceding the filing of the motion for any offense, excluding motor vehicle violations, and excluding arrests for conduct associated with the same criminal episode that caused the arrest that is sought to be set aside.
(b) An arrest for driving while under the influence of intoxicants if the charge is dismissed as a result of the person’s successful completion of a diversion agreement described in ORS 813.200 (Notice of availability of diversion).
(9) The provisions of subsection (1) of this section apply to convictions and arrests that occurred before, as well as those that occurred after, September 9, 1971. There is no time limit for making an application.
(10) For purposes of any civil action in which truth is an element of a claim for relief or affirmative defense, the provisions of subsection (3) of this section providing that the conviction, arrest or other proceeding be deemed not to have occurred do not apply and a party may apply to the court for an order requiring disclosure of the official records in the case as may be necessary in the interest of justice.
(11) Upon motion of any prosecutor or defendant in a case involving records sealed under this section, supported by affidavit showing good cause, the court with jurisdiction may order the reopening and disclosure of any records sealed under this section for the limited purpose of assisting the investigation of the movant. However, such an order has no other effect on the orders setting aside the conviction or the arrest record.
(12) Unless the court makes written findings by clear and convincing evidence that granting the motion would not be in the best interests of justice, the court shall grant the motion and enter an order as provided in subsection (3) of this section if the defendant has been convicted of one of the following crimes and is otherwise eligible for relief under this section:
(a) Abandonment of a child, ORS 163.535 (Abandonment of a child).
(b) Attempted assault in the second degree, ORS 163.175 (Assault in the second degree).
(c) Assault in the third degree, ORS 163.165 (Assault in the third degree).
(d) Coercion, ORS 163.275 (Coercion).
(e) Criminal mistreatment in the first degree, ORS 163.205 (Criminal mistreatment in the first degree).
(f) Attempted escape in the first degree, ORS 162.165 (Escape in the first degree).
(g) Incest, ORS 163.525 (Incest), if the victim was at least 18 years of age.
(h) Intimidation in the first degree, ORS 166.165 (Intimidation in the first degree).
(i) Attempted kidnapping in the second degree, ORS 163.225 (Kidnapping in the second degree).
(j) Attempted robbery in the second degree, ORS 164.405 (Robbery in the second degree).
(k) Robbery in the third degree, ORS 164.395 (Robbery in the third degree).
(L) Supplying contraband, ORS 162.185 (Supplying contraband).
(m) Unlawful use of a weapon, ORS 166.220 (Unlawful use of weapon).
(13) As used in this section, "sex crime" has the meaning given that term in ORS 181.594 (Definitions). [1971 c.434 §2; 1973 c.680 §3; 1973 c.689 §1a; 1973 c.836 §265; 1975 c.548 §10; 1975 c.714 §2; 1977 c.286 §1; 1983 c.556 §1; 1983 c.740 §17; 1987 c.320 §31; 1987 c.408 §1; 1987 c.864 §6; 1989 c.774 §1; 1991 c.830 §6; 1993 c.546 §98; 1993 c.664 §2; 1995 c.429 §9; 1995 c.743 §1; 1999 c.79 §1; 2007 c.71 §35; 2009 c.360 §1; 2009 c.560 §1]
Note: Section 27, chapter 659, Oregon Laws 2009, provides:
Sec. 27. (1) In addition to the fee provided in ORS 137.225 (Order setting aside conviction or record of arrest), upon the filing of an application under ORS 137.225 (Order setting aside conviction or record of arrest) (1), the court shall order the defendant to pay a fee of $250 to the court.
(2) This section applies only to applications filed under ORS 137.225 (Order setting aside conviction or record of arrest) (1) on or after October 1, 2009, and before July 1, 2011.
(3) Fees imposed under this section in the circuit court shall be deposited by the clerk of the court in the Judicial System Surcharge Account. Fees imposed in a justice court under this section shall be paid to the county treasurer. Fees imposed in a municipal court under this section shall be paid to the city treasurer.
(4) The collections and revenue management program established under ORS 1.204 (Judicial Department collections and revenue management program) may not be reimbursed under ORS 1.204 (Judicial Department collections and revenue management program) from amounts imposed under this section. [2009 c.659 §27]
expungement law allows expungement of arrests which did not lead to a finding of guilt, and class C misdemeanors if the defendant received deferred adjudication, and completed community supervision. The release, dissemination or use of expunged records by any agency is prohibited. Unless being questioned under oath, the defendant may deny the occurrence of the arrest and expungement order. If the defendant was found guilty, pled guilty, or pled no contest to any offense other than a class "C" misdemeanor, it is not eligible for expungement; however, it may be eligible for non-disclosure if deferred adjudication was granted. However, if the person who has had a record expunged is applying for enlistment into the Armed Services, the charge must be revealed or the person shall be disqualified from enlistment and may be liable for criminal action for fraudulent enlistment if the charge is not revealed.
looks to see if the petitioner has ever been convicted of a crime. Even if the immigrant was convicted, made restitution, and as part of a plea agreement had the court record expunged, that initial conviction will still appear on the immigrant's record and the immigrant may well find him/herself in deportation proceedings (as was the case of Padilla v. Kentucky (2010)). In Padilla, the U.S. Supreme Court ruled that Padilla has received ineffective assistance of counsel because he had not been warned of the possible immigration consequences of his guilty plea..
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
legal system
Legal systems of the world
The legal systems of the world today are generally based on one of three basic systems: civil law, common law, and religious law – or combinations of these...
, an expungement proceeding is a type of lawsuit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
in which a first time offender of a prior criminal
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
conviction seeks that the records of that earlier process be seal
Record sealing
Record sealing is the practice of sealing or, in some cases, destroying court records that would otherwise be publicly accessible as public records. The term is derived from the tradition of placing a seal on specified files or documents that prevents anyone from reviewing the files without...
ed, thereby making the records unavailable through the state or Federal repositories. If successful, the records are said to be "expunged". Black's Law Dictionary
Black's Law Dictionary
Black's Law Dictionary is the most widely used law dictionary in the United States. It was founded by Henry Campbell Black. It is the reference of choice for definitions in legal briefs and court opinions and has been cited as a secondary legal authority in many U.S...
defines "expungement of record" as the "Process by which record of criminal conviction is destroyed or sealed from the state or Federal repository." While expungement deals with an underlying criminal record, it is a civil action
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
in which the subject is the petitioner or plaintiff asking a court to declare that the records be expunged.
A very real distinction exists between an expungement and a pardon
Pardon
Clemency means the forgiveness of a crime or the cancellation of the penalty associated with it. It is a general concept that encompasses several related procedures: pardoning, commutation, remission and reprieves...
. When an expungement is granted, the person whose record is expunged may, for most purposes, treat the event as if it never occurred. A pardon (also called “executive clemency”), on the other hand, does not “erase” the event. Rather, it constitutes forgiveness. In the United States, an expungement can be granted only by a judge, while a pardon can be granted only by a governor (for state law offenses) or the President (for federal offenses). In Nebraska
Nebraska
Nebraska is a state on the Great Plains of the Midwestern United States. The state's capital is Lincoln and its largest city is Omaha, on the Missouri River....
pardons are by vote of the governor, attorney general and secretary of state.
Each jurisdiction whose law allows expungement has its own definitions of expungement proceedings. Generally, expungement is the process to "remove from general review" the records pertaining to a case. In many jurisdictions, however, the records may not completely "disappear" and may still be available to law enforcement, to sentencing judges on subsequent offenses, and to corrections facilities to which the individual may be sentenced on subsequent convictions.
Permissibility
Eligibility for an expungement of an arrest, investigation, detention, or conviction record will be based on the law of the jurisdiction in which the record was made. Ordinarily, only the subject of the record may ask that the record be expunged. Often, the subject must meet a number of conditions before the request will be considered. Some jurisdictions allow expungement for the deceased.Requirements often include one or more of the following:
- Fulfilling a waiting period between the incident and expungement;
- Having no intervening incidents;
- Having no more than a specified number of prior incidents;
- That the conviction be of a nature not considered to be too serious;
- That all terms of the sentence be completely fulfilled;
- That no proceedings be pending;
- That the incident was disposed without a conviction; and
- That the petitioner complete probation without any incidents.
Types of convictions that are often not eligible for expungement include:
- Felonies and first degree misdemeanors in which the victim is under 18 years of age
- Rape
- Sexual battery
- Corruption of a minor
- Sexual imposition
- Obscenity or pornography involving a minor
In some jurisdictions, all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person's detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system can be expunged. Each state sets its own guidelines for what records can be expunged, or for whether expungements are available at all. The petitioner requesting an expungement of all or part of their record will have to complete forms and instructions to submit to the appropriate authority. The petitioner may choose to hire an attorney to guide them through the process, or he/she can decide to represent themselves. This is called appearing pro se.
Most jurisdictions have laws which allow - or possibly even require - the expungement of juvenile records once the juvenile reaches a certain age. In some cases, the records are destroyed; sometimes they simply are "sealed." The purpose of these laws is to allow a minor who was accused of criminal acts, or in the language of many juvenile courts, "delinquent acts," to erase his record, typically at the age of 17 or 18. The idea is to allow the juvenile offender to enter adulthood with a "clean slate," shielding him or her from the negative effects of having a criminal record.
Australia
Criminal records in each state of Australia are the covered by state law. In New South Wales, the relevant legislation is the Criminal Records Act 1991. Under the Act, an offender's criminal record may become spent if they do not re-offend for a period of 10 years. Offences resulting in a prison term of more than six months will not become spent. Additionally, for certain employment occupations (e.g. education or child services), a "full disclosure" check is required, and spent convictions are still visible.United Kingdom
In the United KingdomUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
the term "spent conviction" is used. The relevant legislation is the Rehabilitation of Offenders Act 1974
Rehabilitation of Offenders Act 1974
The Rehabilitation of Offenders Act 1974 of the UK Parliament enables some criminal convictions to be ignored after a rehabilitation period. Its purpose is that people do not have a lifelong blot on their records because of a relatively minor offence in their past. The rehabilitation period is...
. In the data retention model of the Police National Computer
Police National Computer
The Police National Computer is a computer system used extensively by law enforcement organisations across the United Kingdom. It went live in 1974 and now consists of several databases available 24 hours a day, giving access to information of national and local significance.From October 2009, the...
, arrests which do not lead to a finding of guilt "step down" as soon as the relevant decision is made (typically a "not guilty" verdict or a dismissal of charges) and become visible to law enforcement only. Records of cautions and minor convictions also step down after a specified period of time.
Arizona
ArizonaArizona
Arizona ; is a state located in the southwestern region of the United States. It is also part of the western United States and the mountain west. The capital and largest city is Phoenix...
's expungement equivalent is "setting aside" a conviction
Conviction
In law, a conviction is the verdict that results when a court of law finds a defendant guilty of a crime.The opposite of a conviction is an acquittal . In Scotland and in the Netherlands, there can also be a verdict of "not proven", which counts as an acquittal...
. Arizona's setting aside statute allows a defendant to petition the court to have a conviction set aside after the terms of the sentence are met. If the court grants the petition, the defendant is "released from all penalties and disabilities resulting from the conviction other than those imposed by the Department of Transportation." The conviction can be used in any subsequent criminal prosecution.
California
California has several post-conviction remedies that are sometimes called expungement. For minor crimes (not involving a sentence in state prison), a petition for expungement is filed in civil court to have the conviction dismissed. For crimes involving a prison sentence, a petition for a Certificate of Rehabilitation (CR) issued by the courts and filed with the California Department of Corrections and Rehabilitation (CDCR).Petition for Expungement
CaliforniaCalifornia
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
's expungement law permits someone convicted of a crime to file a Petition for Dismissal with the court to re-open the case, set aside the plea, and dismiss the case. In order for one to qualify for expungement, the petitioner must have completed probation, paid all fines and restitution, and not currently be charged with a crime. If the requirements are met for eligibility, a court may grant the petition if it finds that it would be in the interest of justice to do so. A successful expungement will not erase the criminal record, but rather the finding of guilt will be changed to a dismissal. The petitioner then can honestly and legally answer to a question about their criminal history, with some exceptions, that they have not been convicted of that crime. What is actually stated on the record of the case is that the case was dismissed after conviction. If the petitioner is later convicted of the same crime again, then the expungement may be reversed.
Certificate of Rehabilitation
For persons who serve sentences in the state prison system (felonsFelony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
), they must apply to the Superior Court for a Certificate of Rehabilitation (CR). The CR does not remove or expunge anything negative from the individuals record; however, it places something positive on it. Among other requirements, the applicant must live in California and have done so for at least 5 consecutive years prior to applying, and been law-abiding for 7 years starting from the sooner of their release from prison or court supervision. After they meet all requirements and receive a CR, certain of their rights are restored. and a request for a pardon
Pardon
Clemency means the forgiveness of a crime or the cancellation of the penalty associated with it. It is a general concept that encompasses several related procedures: pardoning, commutation, remission and reprieves...
is automatically sent to the governor.
Sealing juvenile records
Juvenile criminal court records remain unless the individual petitions to have them sealed. This may be done when they reach their 18th birthday.Florida
FloridaFlorida
Florida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...
law allows for expungement of criminal records that do not include a conviction, and permits the sealing or expungement of records where adjudication was withheld. To be eligible for sealing or expungement, the defendant must not have been convicted of or have pled guilty to any criminal offense, and must not have previously received an expungement or sealing. Some criminal records are ineligible for expungement or sealing if they resulted in a final disposition of Adjudication Withheld. A Certificate of Eligibility from the Florida Department of Law Enforcement
Florida Department of Law Enforcement
The Florida Department of Law Enforcement is a Florida government agency. FDLE is composed of five programs: Executive Direction and Business Support, Criminal Investigations and Forensic Science, Criminal Justice Information, Criminal Justice Professionalism, and the Florida Capitol Police...
is required prior to petitioning the court for an order to seal or expunge a record. There is a $75.00 charge for the Certificate of Eligibility. A successful sealing will limit disclosure of the record to only the Florida Bar, the Florida Department of Children and Families, the Florida Board of Education, law enforcement and in a few other circumstances. An expunged record will be unavailable for dissemination to any private or public entity, though the four agencies that can see a sealed record will be informed only that a record has been expunged.
Illinois
IllinoisIllinois
Illinois is the fifth-most populous state of the United States of America, and is often noted for being a microcosm of the entire country. With Chicago in the northeast, small industrial cities and great agricultural productivity in central and northern Illinois, and natural resources like coal,...
law allows the sealing or expungement of parts of the records of a conviction. Sealing a conviction prevents the public, including employers, from gaining access to that record. To be eligible for sealing of a conviction record in Illinois one must have been sentenced to supervision. A waiting period of four years also is required, beginning at the time of discharge from supervision, where no convictions were entered. Some misdemeanors are ineligible for sealing. All felony convictions are ineligible for sealing except for class 4 felony drug possession and prostitution offenses.
Missouri
MissouriMissouri
Missouri is a US state located in the Midwestern United States, bordered by Iowa, Illinois, Kentucky, Tennessee, Arkansas, Oklahoma, Kansas and Nebraska. With a 2010 population of 5,988,927, Missouri is the 18th most populous state in the nation and the fifth most populous in the Midwest. It...
has two forms of expungement, one generally applicable to criminal cases and a unique one for the crime of being a minor in possession
Minor In Possession
In the United States, a Minor in Possession, or a MIP, is a criminal offense, typically a misdemeanor. Anyone who is under the age of 21 and possesses alcohol in the United States, with the exception of special circumstances, is violating the law of the state...
of alcohol
Alcoholic beverage
An alcoholic beverage is a drink containing ethanol, commonly known as alcohol. Alcoholic beverages are divided into three general classes: beers, wines, and spirits. They are legally consumed in most countries, and over 100 countries have laws regulating their production, sale, and consumption...
.
Ordinary expungement
If certain requirements are met, Missouri law allows a person to have an arrest record expunged, which the law of Missouri defines as the process of legally destroying, obliterating or striking out records or information in files, computers and other depositories relating to criminal charges.A person is eligible for expungement in Missouri if the arrest was based on false information and the following conditions exist:
- There is no probable cause to believe the person committed the offense;
- No charges will be pursued as a result of the arrest;
- The person has no prior or subsequent misdemeanorMisdemeanorA misdemeanor is a "lesser" criminal act in many common law legal systems. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions and regulatory offences...
or felonyFelonyA felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
convictions; - The person did not receive a suspended imposition of sentenceSuspended sentenceA suspended sentence is a legal term for a judge's delaying of a defendant's serving of a sentence after they have been found guilty, in order to allow the defendant to perform a period of probation...
for the offense; and - No civil action is pending relating to the arrest or records sought to be expunged.
If a person qualifies, in order to have the records expunged, they must file a verified petition for expungement in the civil division of the Circuit Court
Missouri Circuit Courts
The Missouri Circuit Courts are the state trial courts of original jurisdiction and general jurisdiction of the state of Missouri.-Jurisdiction:The Missouri Constitution provides for the Circuit Courts in Article V, Judicial Department.-List of circuits:...
in the county of the arrest. The court sets a hearing on the matter no sooner than thirty days after the petition was filed. If the court finds that the petitioner is entitled to expungement of any record, it will enter an order directing expungement.
Records expunged under this provision still may be opened to law enforcement if the person is charged with a subsequent offense or if any of the requirements of expungement no longer are met.
Minor in possession of alcohol
In 2005, the Missouri General AssemblyMissouri General Assembly
The Missouri General Assembly is the state legislature of the U.S. state of Missouri. The bicameral General Assembly is composed of a 34-member Senate, and a 163-member House of Representatives. Members of both houses of the General Assembly are subject to term limits...
enacted a special new section in the state's Liquor Control Law allowing for the complete and total expungement for the offense of being a minor in possession
Minor In Possession
In the United States, a Minor in Possession, or a MIP, is a criminal offense, typically a misdemeanor. Anyone who is under the age of 21 and possesses alcohol in the United States, with the exception of special circumstances, is violating the law of the state...
of alcohol. Unlike ordinary expungement, the MIP expungement exists with the explicit legislative mandate that the effect of an order of expungement under it "shall be to restore such person to the status occupied prior to such arrest, plea or conviction, as if such event had never happened."
After not less than one year since the offense was disposed of, or upon reaching the age of twenty-one, whichever occurs first, a person who pleaded guilty to or was found guilty of the crime of minor in possession of alcohol for the first time, and who since such conviction has not been convicted of any other alcohol-related offense, may apply to the civil division of the circuit court of the county in which the person was sentenced for an order to expunge all official records of the arrest, plea, trial and conviction.
The person also must meet the following requirements:
- The person has not been convicted of any other alcohol-related offense at the time of the application for expungement; and
- The person has had no other contacts with law enforcement (i.e. arrest, charge) which were alcohol-related (such as for drunk driving or violation of the terms of a liquor licenseLiquor license-Alberta:In Alberta, liquor licences are issued by the Alberta Gaming and Liquor Commission.-United Kingdom:Throughout the United Kingdom, the sale of alcohol is restricted—pubs, restaurants, shops and other premises must be licensed by the local authority. The individual responsible for the...
).
If a person has had an MIP record expunged this way, the law states they cannot "be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of failure to recite or acknowledge such arrest, plea, trial, conviction or expungement in response to any inquiry made for any purpose whatsoever."
A person is only entitled to one MIP expungement under this special provision.
New Hampshire
New HampshireNew Hampshire
New Hampshire is a state in the New England region of the northeastern United States of America. The state was named after the southern English county of Hampshire. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Atlantic Ocean to the east, and the Canadian...
statues allows any person whose arrest has resulted in a finding of not guilty, or whose case was dismissed or not prosecuted, to petition for annulment of the arrest record at any time, free of charge.
Any person who has been convicted may petition for annulment after he/she has completed all requirements of their sentence, including probation, and paid a $100 fee to the department of corrections to cover the cost of a investigation into the criminal history of the petitioner:
- For a violation, one year, unless the underlying conviction was for an offense specified under habitual offender law.
- For a class A or B misdemeanor excluding sexual assault, 3 years.
- For a class B felony other than incest or endangering the welfare of a child by solicitation, 5 years.
- For a class A felony, 10 years.
- For sexual assault, 10 years.
- For felony indecent exposure or lewdness, 10 years.
The person whose record is annulled shall be treated in all respects as if he had never been arrested, convicted or sentenced, except that, upon conviction of any crime committed after the order of annulment has been entered, the prior conviction may be considered by the court in determining the sentence to be imposed, and may be counted toward habitual offender status.
In any application for employment, license or other civil right or privilege, or in any appearance as a witness in any proceeding or hearing, a person may be questioned about a previous criminal record only in terms such as ""Have you ever been arrested for or convicted of a crime that has not been annulled by a court?
New Jersey
New JerseyNew Jersey
New Jersey is a state in the Northeastern and Middle Atlantic regions of the United States. , its population was 8,791,894. It is bordered on the north and east by the state of New York, on the southeast and south by the Atlantic Ocean, on the west by Pennsylvania and on the southwest by Delaware...
statutes allow expungement of conviction of many indictable offenses, disorderly persons offenses, municipal ordinances, and juvenile adjudications. The statutes disallow expungement for convictions if the applicant has been convicted of two or more indictable offenses, or four or more disorderly persons offenses. If the applicant has a combination of one criminal conviction and up to two disorderly persons convictions, the criminal conviction can be expunged when the waiting period has elapsed, but the disorderly persons conviction can never be expunged. A person who has had an indictable charge dismissed on account of a diversion cannot thereafter have a criminal or disorderly persons conviction expunged
The waiting period was ten years for indictable convictions, and remains five years for disorderly offenses, and two years for municipal ordinances. In 2010, the waiting period on indictable convictions was lowered to five years. However, applicants who have not waited the full ten years must satisfy the judge that granting the expungement is in the public interest. No such showing need be made once the full ten years has elapsed. Waiting periods begin to run on the date of sentencing, the date all fines are paid, or the completion date of probation or parole, whichever occurs last. Not all offenses are eligible and several new ineligible offenses were added by the 2010 changes, including convictions that took place before the changes.
There is no waiting period for most dismissals and acquittals. However, if the dismissal arose on account of a diversion, there is a six month waiting period. If the acquittal resulted from a finding of insanity or lack of mental capacity, the offense cannot be expunged. Motor vehicle offenses cannot be expunged.
Expungements give the person the legal right to state, even under oath, that the event never occurred. All civil disabilities associated with the conviction are eliminated. However, expunged records must still be recited in certain situations. These situations include applications for employment with a law enforcement agency, applications for employment in the judicial system, and applications for a subsequent expungement.
Not all states honor New Jersey Expungements. White v. Thomas, 660 F.2d 680, 685 (5th Cir., 1981), cert. den., 455 U.S. 1027 (1982), held that each state may interpret its own law to determine what recognition it may give to the expungement order of a sister state.
New York
New YorkNew York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
Criminal Procedure Law 160.50 permits the "sealing" of cases where charges were dismissed, vacated, set-aside, not filed, or otherwise terminated. Otherwise, New York does not allow expungements, or "sealings," of cases where a conviction was entered, except for some older controlled substance, marijuana, and loitering offenses. Sealing a record under 160.50 will prevent the public from having access or seeing the records, including fingerprint
Fingerprint
A fingerprint in its narrow sense is an impression left by the friction ridges of a human finger. In a wider use of the term, fingerprints are the traces of an impression from the friction ridges of any part of a human hand. A print from the foot can also leave an impression of friction ridges...
cards, photographs, court entries, and other information related to the case. The record may still be made available to some entities, such as courts and law enforcement.
New York also permits the expungements of non-criminal dispositions (violations and traffic infractions, such as disorderly conduct
Disorderly conduct
Disorderly conduct is a criminal charge in most jurisdictions in the United States. Typically, disorderly conduct makes it a crime to be drunk in public, to "disturb the peace", or to loiter in certain areas. Many types of unruly conduct may fit the definition of disorderly conduct, as such...
) through New York Criminal Procedure Law 160.55. Misdemeanor and felony adjudications are not eligible.
Effective 2009, New York Criminal Procedure § 160.58, an petitioner convicted of most felony drug, marijuana, or Willard non-drug eligible crimes may request to have their records for those crimes sealed if they successfully complete DIVERSION, DTAP, or a similar substance abuse treatment program recognized by the court. The sealing will also extend to up to three of the petitioners misdemeanor drug convictions.
Ohio
OhioOhio
Ohio is a Midwestern state in the United States. The 34th largest state by area in the U.S.,it is the 7th‑most populous with over 11.5 million residents, containing several major American cities and seven metropolitan areas with populations of 500,000 or more.The state's capital is Columbus...
is a "sealing." Sealing allows first-time offenders to petition the court for the sealing of a conviction record. To be eligible, one must not have any current charges pending, or prior or subsequent criminal convictions, other than minor misdemeanors and those arising from the same incident. Completion of the court's sentence (fines, restitution, jail/prison, probation, etc.) and a waiting period from the date of discharge is also required (one year for misdemeanors or three years for felonies). Some serious offenses are ineligible.
Oregon
137.225¹Order setting aside conviction or record of arrest
• fees
• prerequisites
• limitations
(1)(a) At any time after the lapse of three years from the date of pronouncement of judgment, any defendant who has fully complied with and performed the sentence of the court and whose conviction is described in subsection (5) of this section by motion may apply to the court where the conviction was entered for entry of an order setting aside the conviction; or
(b) At any time after the lapse of one year from the date of any arrest, if no accusatory instrument was filed, or at any time after an acquittal or a dismissal of the charge, the arrested person may apply to the court that would have jurisdiction over the crime for which the person was arrested, for entry of an order setting aside the record of the arrest. For the purpose of computing the one-year period, time during which the arrested person has secreted himself or herself within or without the state is not included.
(2)(a) A copy of the motion and a full set of the defendant’s fingerprints shall be served upon the office of the prosecuting attorney who prosecuted the crime or violation, or who had authority to prosecute the charge if there was no accusatory instrument filed, and opportunity shall be given to contest the motion. The fingerprint card with the notation "motion for setting aside conviction," or "motion for setting aside arrest record" as the case may be, shall be forwarded to the Department of State Police bureau of criminal identification. Information resulting from the fingerprint search along with the fingerprint card shall be returned to the prosecuting attorney.
(b) When a prosecuting attorney is served with a copy of a motion to set aside a conviction under this section, the prosecuting attorney shall provide a copy of the motion and notice of the hearing date to the victim, if any, of the crime by mailing a copy of the motion and notice to the victim’s last-known address.
(c) When a person makes a motion under subsection (1)(a) of this section, the person must pay a fee of $80. The person shall attach a certified check payable to the Department of State Police in the amount of $80 to the fingerprint card that is served upon the prosecuting attorney. The office of the prosecuting attorney shall forward the check with the fingerprint card to the Department of State Police bureau of criminal identification.
(3) Upon hearing the motion, the court may require the filing of such affidavits and may require the taking of such proofs as it deems proper. The court shall allow the victim to make a statement at the hearing. Except as otherwise provided in subsection (12) of this section, if the court determines that the circumstances and behavior of the applicant from the date of conviction, or from the date of arrest as the case may be, to the date of the hearing on the motion warrant setting aside the conviction, or the arrest record as the case may be, it shall enter an appropriate order that shall state the original arrest charge and the conviction charge, if any and if different from the original, date of charge, submitting agency and disposition. The order shall further state that positive identification has been established by the bureau and further identified as to state bureau number or submitting agency number. Upon the entry of the order, the applicant for purposes of the law shall be deemed not to have been previously convicted, or arrested as the case may be, and the court shall issue an order sealing the record of conviction and other official records in the case, including the records of arrest whether or not the arrest resulted in a further criminal proceeding.
(4) The clerk of the court shall forward a certified copy of the order to such agencies as directed by the court. A certified copy must be sent to the Department of Corrections when the person has been in the custody of the Department of Corrections. Upon entry of the order, the conviction, arrest or other proceeding shall be deemed not to have occurred, and the applicant may answer accordingly any questions relating to its occurrence.
(5) The provisions of subsection (1)(a) of this section apply to a conviction of:
(a) A Class C felony, except for criminal mistreatment in the first degree under ORS 163.205 (Criminal mistreatment in the first degree) when it would constitute child abuse, as defined in ORS 419B.005 (Definitions), or any sex crime.
(b) The crime of possession of the narcotic drug marijuana when that crime was punishable as a felony only.
(c) A crime punishable as either a felony or a misdemeanor, in the discretion of the court, except for:
(A) Any sex crime; and
(B) The following crimes when they would constitute child abuse as defined in ORS 419B.005 (Definitions):
(i) Criminal mistreatment in the first degree under ORS 163.205 (Criminal mistreatment in the first degree); and
(ii) Endangering the welfare of a minor under ORS 163.575 (Endangering the welfare of a minor) (1)(a).
(d) A misdemeanor, including a violation of a municipal ordinance, for which a jail sentence may be imposed, except for endangering the welfare of a minor under ORS 163.575 (Endangering the welfare of a minor) (1)(a) when it would constitute child abuse, as defined in ORS 419B.005 (Definitions), or any sex crime.
(e) A violation, whether under state law or local ordinance.
(f) An offense committed before January 1, 1972, that if committed after that date would be:
(A) A Class C felony, except for any sex crime or for the following crimes when they would constitute child abuse as defined in ORS 419B.005 (Definitions):
(i) Criminal mistreatment in the first degree under ORS 163.205 (Criminal mistreatment in the first degree); and
(ii) Endangering the welfare of a minor under ORS 163.575 (Endangering the welfare of a minor) (1)(a).
(B) A crime punishable as either a felony or a misdemeanor, in the discretion of the court, except for any sex crime or for the following crimes when they would constitute child abuse as defined in ORS 419B.005 (Definitions):
(i) Criminal mistreatment in the first degree under ORS 163.205 (Criminal mistreatment in the first degree); and
(ii) Endangering the welfare of a minor under ORS 163.575 (Endangering the welfare of a minor) (1)(a).
(C) A misdemeanor, except for endangering the welfare of a minor under ORS 163.575 (Endangering the welfare of a minor) (1)(a) when it would constitute child abuse, as defined in ORS 419B.005 (Definitions), or any sex crime.
(D) A violation.
(6) Notwithstanding subsection (5) of this section, the provisions of subsection (1) of this section do not apply to:
(a) A conviction for a state or municipal traffic offense.
(b) A person convicted, within the 10-year period immediately preceding the filing of the motion pursuant to subsection (1) of this section, of any other offense, excluding motor vehicle violations, whether or not the other conviction is for conduct associated with the same criminal episode that caused the arrest or conviction that is sought to be set aside. Notwithstanding subsection (1) of this section, a conviction that has been set aside under this section shall be considered for the purpose of determining whether this paragraph is applicable.
(c) A person who at the time the motion authorized by subsection (1) of this section is pending before the court is under charge of commission of any crime.
(7) Notwithstanding subsection (5) of this section, the provisions of subsection (1)(a) of this section do not apply to criminally negligent homicide under ORS 163.145 (Criminally negligent homicide), when that offense was punishable as a Class C felony.
(8) The provisions of subsection (1)(b) of this section do not apply to:
(a) A person arrested within the three-year period immediately preceding the filing of the motion for any offense, excluding motor vehicle violations, and excluding arrests for conduct associated with the same criminal episode that caused the arrest that is sought to be set aside.
(b) An arrest for driving while under the influence of intoxicants if the charge is dismissed as a result of the person’s successful completion of a diversion agreement described in ORS 813.200 (Notice of availability of diversion).
(9) The provisions of subsection (1) of this section apply to convictions and arrests that occurred before, as well as those that occurred after, September 9, 1971. There is no time limit for making an application.
(10) For purposes of any civil action in which truth is an element of a claim for relief or affirmative defense, the provisions of subsection (3) of this section providing that the conviction, arrest or other proceeding be deemed not to have occurred do not apply and a party may apply to the court for an order requiring disclosure of the official records in the case as may be necessary in the interest of justice.
(11) Upon motion of any prosecutor or defendant in a case involving records sealed under this section, supported by affidavit showing good cause, the court with jurisdiction may order the reopening and disclosure of any records sealed under this section for the limited purpose of assisting the investigation of the movant. However, such an order has no other effect on the orders setting aside the conviction or the arrest record.
(12) Unless the court makes written findings by clear and convincing evidence that granting the motion would not be in the best interests of justice, the court shall grant the motion and enter an order as provided in subsection (3) of this section if the defendant has been convicted of one of the following crimes and is otherwise eligible for relief under this section:
(a) Abandonment of a child, ORS 163.535 (Abandonment of a child).
(b) Attempted assault in the second degree, ORS 163.175 (Assault in the second degree).
(c) Assault in the third degree, ORS 163.165 (Assault in the third degree).
(d) Coercion, ORS 163.275 (Coercion).
(e) Criminal mistreatment in the first degree, ORS 163.205 (Criminal mistreatment in the first degree).
(f) Attempted escape in the first degree, ORS 162.165 (Escape in the first degree).
(g) Incest, ORS 163.525 (Incest), if the victim was at least 18 years of age.
(h) Intimidation in the first degree, ORS 166.165 (Intimidation in the first degree).
(i) Attempted kidnapping in the second degree, ORS 163.225 (Kidnapping in the second degree).
(j) Attempted robbery in the second degree, ORS 164.405 (Robbery in the second degree).
(k) Robbery in the third degree, ORS 164.395 (Robbery in the third degree).
(L) Supplying contraband, ORS 162.185 (Supplying contraband).
(m) Unlawful use of a weapon, ORS 166.220 (Unlawful use of weapon).
(13) As used in this section, "sex crime" has the meaning given that term in ORS 181.594 (Definitions). [1971 c.434 §2; 1973 c.680 §3; 1973 c.689 §1a; 1973 c.836 §265; 1975 c.548 §10; 1975 c.714 §2; 1977 c.286 §1; 1983 c.556 §1; 1983 c.740 §17; 1987 c.320 §31; 1987 c.408 §1; 1987 c.864 §6; 1989 c.774 §1; 1991 c.830 §6; 1993 c.546 §98; 1993 c.664 §2; 1995 c.429 §9; 1995 c.743 §1; 1999 c.79 §1; 2007 c.71 §35; 2009 c.360 §1; 2009 c.560 §1]
Note: Section 27, chapter 659, Oregon Laws 2009, provides:
Sec. 27. (1) In addition to the fee provided in ORS 137.225 (Order setting aside conviction or record of arrest), upon the filing of an application under ORS 137.225 (Order setting aside conviction or record of arrest) (1), the court shall order the defendant to pay a fee of $250 to the court.
(2) This section applies only to applications filed under ORS 137.225 (Order setting aside conviction or record of arrest) (1) on or after October 1, 2009, and before July 1, 2011.
(3) Fees imposed under this section in the circuit court shall be deposited by the clerk of the court in the Judicial System Surcharge Account. Fees imposed in a justice court under this section shall be paid to the county treasurer. Fees imposed in a municipal court under this section shall be paid to the city treasurer.
(4) The collections and revenue management program established under ORS 1.204 (Judicial Department collections and revenue management program) may not be reimbursed under ORS 1.204 (Judicial Department collections and revenue management program) from amounts imposed under this section. [2009 c.659 §27]
Tennessee
TCA 40-32-101 is the statute and provides some expungements at no cost. TCA 40-32-101(a)(1)(A) All public records of a person who has been charged with a misdemeanor or a felony shall, upon petition by that person to the court having jurisdiction in the previous action, be removed and destroyed without cost to the person, if: The charge has been dismissed, a no true bill was returned by a grand jury, a verdict of not guilty was returned, whether by the judge following a bench trial or by a jury, the person was arrested and released without being charged. TCA 40-32-101(a)(1)(B) A person applying for the expunction of records because the charge or warrant was dismissed in any court as a result of the successful completion of a pretrial diversion program pursuant to §§ 40-15-102 — 40-15-107, shall be charged the appropriate court clerk's fee pursuant to § 8-21-401 for destroying such records. TCA 40-32-101(a)(3) Upon petition by a defendant in the court that entered a nolle prosequi in the defendant's case, the court shall order all public records expunged. TCA 40-32-101(a)(5) All public records concerning an order of protection [ex-parte, exparte] authorized by title 36, chapter 3, part 6, which was successfully defended and denied by the court following a hearing conducted pursuant to § 36-3-605, shall, upon petition by that person to the court denying the order, be removed and destroyed without cost to the person.Texas
TexasTexas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
expungement law allows expungement of arrests which did not lead to a finding of guilt, and class C misdemeanors if the defendant received deferred adjudication, and completed community supervision. The release, dissemination or use of expunged records by any agency is prohibited. Unless being questioned under oath, the defendant may deny the occurrence of the arrest and expungement order. If the defendant was found guilty, pled guilty, or pled no contest to any offense other than a class "C" misdemeanor, it is not eligible for expungement; however, it may be eligible for non-disclosure if deferred adjudication was granted. However, if the person who has had a record expunged is applying for enlistment into the Armed Services, the charge must be revealed or the person shall be disqualified from enlistment and may be liable for criminal action for fraudulent enlistment if the charge is not revealed.
Utah
The Utah Bureau of Criminal Identification has published a pamphlet that provides an overview of Utah's expungement law. The law itself is set forth in Utah Statute 77-18-2. In essence, first degree crimes cannot be expunged. Second degree forceable crimes cannot be expunged. Crimes other than those can.Washington
Washington's expungement equivalent is called "vacating a judgment." It allows the court to vacate certain felony convictions which occurred after July 1, 1984. Revised Code of Washington (RCW) Chapter 9.94A.640 allows the court to withdraw the finding of guilt and vacate a misdemeanor or gross misdemeanor. Once vacated, or expunged, the person's criminal record will not include that case. State law gives the person the right to state to anyone, including prospective employers, that the person was not convicted of that offense, after a vacate motion has been granted.Immigration consequences
For all practical purposes, there is no such thing as an expungement of a conviction for immigration purposes. In reviewing the character and fitness of an immigrant along the different steps from permanent residency to citizenship, United States Citizenship and Immigration ServicesUnited States Citizenship and Immigration Services
United States Citizenship and Immigration Services is a component of the United States Department of Homeland Security . It performs many administrative functions formerly carried out by the legacy United States Immigration and Naturalization Service , which was part of the Department of Justice...
looks to see if the petitioner has ever been convicted of a crime. Even if the immigrant was convicted, made restitution, and as part of a plea agreement had the court record expunged, that initial conviction will still appear on the immigrant's record and the immigrant may well find him/herself in deportation proceedings (as was the case of Padilla v. Kentucky (2010)). In Padilla, the U.S. Supreme Court ruled that Padilla has received ineffective assistance of counsel because he had not been warned of the possible immigration consequences of his guilty plea..
See also
- PardonPardonClemency means the forgiveness of a crime or the cancellation of the penalty associated with it. It is a general concept that encompasses several related procedures: pardoning, commutation, remission and reprieves...
- Record sealingRecord sealingRecord sealing is the practice of sealing or, in some cases, destroying court records that would otherwise be publicly accessible as public records. The term is derived from the tradition of placing a seal on specified files or documents that prevents anyone from reviewing the files without...
- Second Chance Act (2009)
- Rehabilitation PolicyRehabilitation PolicyRehabilitation policies are those that intend to reform criminal offenders rather than punish them or segregate them from the greater community.-History:...
Further reading
- Margaret Colgate Love, Relief From the Collateral Consequences of a Criminal Conviction: A State-By-State Resource Guide (June 2008)
- California Expungement FAQ