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Expungement is a court-ordered process in which the legal record of an arrest or a criminal conviction is "sealed," or erased in the eyes of the law. When a conviction is expunged, the process may also be referred to as "setting aside a criminal conviction." The availability of expungement and the procedure for getting an arrest or conviction expunged will vary according to the state or county in which the arrest or conviction occurred. For more basics, download FindLaw's Guide to Expungement.
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 sealed, 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.
Legal Effect of an Expungement:
An expungement ordinarily means that an arrest or convictions "sealed," or erased from a person's criminal record for most purposes. After the expungement process is complete, an arrest or a criminal conviction ordinarily does not need to be disclosed by the person who was arrested or convicted. For example, when filling out an application for a job or apartment, an applicant whose arrest or conviction has been expunged does not need to disclose that arrest or conviction.
In the United States, most states allow for expungement of criminal records, though laws vary significantly by state. The availability of expungement and the type of charge or conviction that may be expunged will depend upon the laws of the state in which the case was prosecuted. In some states, once sealed or expunged, all records of an arrest and/or subsequent court case are removed from the public record, and the individual may legally deny or fail to acknowledge ever having been arrested for or charged with any crime which has been expunged. Even after expungement, other states may maintain a public or confidential record of the charge and its disposition.
Are Expunged Records Completely Gone?
An expunged arrest or conviction is not necessarily completely erased, in the literal sense of the word. An expungement will ordinarily be an accessible part of a person's criminal record, viewable by certain government agencies, including law enforcement and the criminal courts.
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.
Factors Determining Eligibility for Expungement:
Whether you may get a criminal record expunged depends on a number of factors, including the jurisdiction; the nature of the crime or charge; the amount of time that has passed since the arrest or conviction; and your criminal history. Some states, including New York, don't allow for the expungement of criminal convictions at all.
Requirements may 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 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
- Sexual battery
- Corruption of a minor
- Sexual imposition
- Obscenity or pornography involving a minor
- Serious weapons charges
Most jurisdictions have laws that allow - and in some states 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.
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