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 What is Expunction?

Expunction, also known as “expungement,” is a legal process through which people with criminal records can make those records inaccessible to the public, i.e. cleared or sealed. Expungement is a legal process that is available in all states in the U.S., but it is not available to everybody who has a misdemeanor or felony conviction on their criminal record.

How Can I Get My Criminal Record Expunged?

There is no constitutional right to have a criminal record expunged. It is a matter of state law. In states where it is available, it is available only on a limited basis. People seeking to get their records expunged have to meet certain qualifications and follow certain procedures. As expungement is a privilege, most states only allow it if the person with the record can show that they have effectively been rehabilitated and have reentered society. Generally, expungement is not available for all types of crimes. It is not available in all circumstances. On the contrary, it is usually only available in limited circumstances.

Some states allow a person to expunge their criminal record if a certain amount of time has passed since their conviction, and they have already finished serving their sentence.

In almost every state that allows expungement, what is cleared or sealed is limited. Expungement is usually not available for serious or violent crimes. Additionally, if a person are required to register as a sex offender as a result of a conviction, expungement does not clear away that requirement.

Whether expungement is allowed and under what circumstances in a sampling of states is as follows:

  • Arizona: It is possible for most people to expunge their criminal records in Arizona. This is the case even if the person served time in prison. In Arizona, the process is known as “setting aside.” It takes about 3 months to accomplish this in most counties in the state.
    • Setting aside the conviction does not result in permanent destruction of court records of a conviction. Rather, It changes court records so they no longer show the word “guilty and convicted” to “finding of guilt set-aside and case dismissed.” Then, because most background checks only report convictions, background checks would not show set-aside convictions. And for those few background checks that show all cases, even cases that have been dismissed, it looks better to have a set-aside conviction than an actual conviction.
    • Some crimes are not eligible for set aside in Arizona as follows:
  • Colorado: If a person has been tried and found guilty in Colorado, then the chance of getting their record expunged is greatly reduced. This does not mean it cannot be done, but generally convicted felons cannot have their records sealed. This is especially true if the person is convicted of domestic violence or sexual assault. However, depending on the circumstances, the judge can grant expungement after a period of time when the person has completed their probation. First time offenders have the best chance of success with a request for expungement in Colorado;
  • Illinois: A person who seeks expungement in Illinois must first petition the court. The court then decides if expungement is to be granted.The judge basically considers whether the right of the public to access a person’s criminal record outweighs the petitioner’s interest in keeping their record private. The nature of the crime is an important factor in the determination. Records of more serious crimes are much less likely to be expunged than records of less serious crimes.
    • When a record is sealed, it means that only a court order can open it. On the other hand, when a record is expunged, then it disappears from all public records. That includes any documents, fingerprints, arrest reports or mug shots that are part of the record. Electronic records are also erased.
    • A court in Illinois will expunge a criminal record only if certain conditions are met. There are three situations in which an expungement can be granted easily. One is If a person has been tried and found not guilty. The second is if there was no finding of probable cause to proceed to trial. And the third is if the case was dismissed.
    • The other pathway to expungement is if the governor grants the person a pardon. Otherwise, if a defendant is convicted of a non-violent crime and has completed any court-ordered supervision for two years, they can then request expungement.
    • Under Illinois law the criminal record of a person who has been convicted of a sexual offense involving a minor, or who has a DUI supervision requirement or is given a conditional discharge is not be eligible for expungement;
  • New York: Unfortunately, New York does not allow a person to have a felony or misdemeanor conviction expunged or sealed. There is only one exception and that is for people who were convicted of certain drug possession crimes and were required to complete a drug treatment program as part of their sentence. Cases of this type can often be sealed.
    • There are also legal ways for a person to have some or all of their rights restored in New York.
    • New York provides for expungement of a criminal record in only very limited circumstances. A New York court does expunge some infractions automatically. If a person was found guilty of traffic infractions or cases classified as “violations,” such as a disorderly conduct charge, they are expunged automatically. Again, however, misdemeanor and felony convictions cannot be expunged. A special provision exists that allows for the expungement of some DNA records only.
    • This situation could arise if the DNA was taken because of a felony or misdemeanor conviction, and the conviction was overturned on appeal, a pardon was granted, or the conviction was vacated by a court. Also, DNA records obtained in connection with a plea agreement may possibly be expunged. On the other hand, the records directly related to the conviction or plea agreement cannot be expunged.
  • Florida: Florida allows a person to expunge a criminal record if their case did not end in a finding of guilt after a trial, a plea of guilty or no contest. Or, if a criminal record has already been sealed for 10 or more years, it might be expunged. A person may be able to seal their Florida criminal record if adjudication was withheld in the case and the person successfully completed their sentence. Not all offenses are eligible even on this basis.
    • In Florida, expungement is only available for arrests that did not lead to a conviction or for criminal records that were sealed 10 or more years ago. It typically takes about 7 months in Florida to get an expungement if it is available. Florida has a separate legal process to restore firearm rights if that is the main reason for which a person wants an expungement. However, reportedly, the backlog for processing these requests is such that it can take over 4 years to get an expungement.

What Happens if My Criminal Record Gets Expunged?

Generally, if a person has had their conviction expunged, they can legally deny ever having been convicted of a crime in almost any situation. If they are looking for a job and they are asked if they have ever been convicted of a crime, the person can legally say that they have never been convicted of a crime.

There are, however, exceptions to this rule as there are certain jobs that require a person to disclose even those convictions that have been expunged. Such jobs might be roles that involve caring for children, certain government jobs, and the like.

Do I Need a Lawyer to Get My Criminal Record Expunged?

If you want to get your criminal record expunged, you should talk to a lawyer to see if you are eligible in the state in which you were convicted of a crime. A good expungement lawyer will be able to tell you whether expungement is available in your situation and if so, the steps to take to request an expungement. Your lawyer can help you through the process of getting your record cleared or sealed.

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