In the state of Pennsylvania, the opportunity to expunge a criminal conviction is somewhat more limited than in some other states. But Pennsylvania laws have been updated in recent years, so expungement is more widely available than it was previously.
Still, what has not changed is that Pennsylvania law regarding expungement of a criminal record is still complicated and depends on the nature of the crime as well as characteristics of the person who seeks the expungement.
Expungement of a criminal record In Pennsylvania means that a person’s criminal record, as it exists at the time of the expungement, is fully destroyed, so no one can see it, not even the courts or members of law enforcement agencies. The process for expunging records is different from that for sealing records, and the result is different as well. Sealing records limits access by the public, but the records can still be accessed by law enforcement and certain employers, such as those that require a federal security clearance.
Whether a person’s criminal record is expunged or sealed, a person is no longer required to disclose it on housing or most employment applications. Generally speaking, expungement is not available for the most serious crimes, such as violent felonies.
An alternative to expungement is a pardon. A lawyer must file a request for a pardon. A pardon exempts a person from punishment and is considered a sign of forgiveness from the court. It does not have anything to do with the person’s innocence and does not eliminate public access to the criminal record of the person who is given the pardon.
Under Pennsylvania’s recently update expungement laws, the process of having records expunged is now available to those convicted of the following types of offenses:
In Pennsylvania, some of the misdemeanors for which expungement is not available include the following:
- Firearm and weapons offenses;
- Sex crimes;
- Animal cruelty;
- Intimidation of or retaliation against witnesses;
- Any offense that carries a sentence of imprisonment for two or more years;
- If the offender has multiple prior convictions, one of which had a sentence imprisonment for at least a one-year.
What Is Needed to Qualify for Expungement?
The following are necessary qualifications for granting of expungement:
- If the person committed a second-degree misdemeanor when under age 25, the person must have had other convictions in the 10 years prior to requesting expungement;
- If the person was convicted of a third-degree misdemeanor, they must have had no other convictions in the 7 years prior to requesting expungement;
- If the person was convicted of a so-called “summary” offense such as loitering or underage drinking, the person must have had no additional convictions for more than five years prior to seeking expungement;
- For those in Accelerated Rehabilitative Disposition (ARD) programs, for cases such as DUI, the expungement process may be started automatically by completing the program. Accelerated Rehabilitative Disposition is a state program for first-time offenders whose purpose is to offer a speedy disposition of charges, without the need for trials and other court proceedings.
- It is supposed to identify offenders who are deemed to be candidates for rehabilitation, so their cases can be removed from the criminal justice system and resolved in an alternative manner.
Is Expungement Automatic If I Qualify?
The fact that a person may qualify because they meet one of the criteria mentioned above does not guarantee that expungement Is going to be granted. Although the recently changed state laws on expungement make many more people eligible, they do not guarantee that a person who qualifies will be granted expungement by a court.
While a person may qualify, prosecutors are allowed to argue against the granting of expungement, if they disagree that expungement should be granted. The decision is up to a judge. The judge will review the facts of the case and will grant expungement to those who have been truly rehabilitated and are not considered a threat or danger to society.
Expungement is simply not available for people who are in a Pennsylvania alternative sentencing program known as “Accelerated Rehabilitative Disposition” (ARD). Accelerated Rehabilitative Disposition is available for such offenses as sexual abuse of a minor. However, when the requirements of an ARD program are satisfied, arrest records are automatically expunged. Notice that the only records expunged in this situation are records of arrests.
In addition, certain misdemeanors that involve firearms or violence cannot be removed from a person’s record. Most of these crimes involve punishment by a minimum term of two or more years in prison. Crimes such as assault, kidnapping, sex offenses, and crimes with victims who are minors usuallly have longer sentences and cannot be expunged, even if the convicted person otherwise qualifies for it. There are exceptions as noted above.
Even if a person has a conviction that is eligible for expungement, their personal history can disqualify them from obtaining expungement. The court will not expunge misdemeanors if the person seeking it has any of the following disqualifying characteristics:
- Has been convicted of a crime within the last decade;
- Has a conviction for a first-degree felony;
- Has two or more first-degree misdemeanors or felonies within the last 15 years;
- Has had four or more convictions within the last 20 years.
However, the Pennsylvania Clean Slate Act states that certain misdemeanors that previously did not qualify for expungement are now do qualify. A court is now allowed to expunge certain first-degree misdemeanors and simple assault crimes that are second- or third-degree misdemeanors.
Again, some crimes that are eligible for expungement include the following:
- First-degree misdemeanors which are punished by imprisonment for less than two years;
- Second-degree misdemeanors;
- Third-degree misdemeanors.
A person can also expunge charges that never resulted in a conviction. Arrests and charges that never resulted in a criminal conviction, because there was never a trial for whatever reasons, can still show up on a person’s background check. A person must petition a court for expungement in order to obtain destruction of these records.
Employers and landlords might still gain access to them and assess a person’s trustworthiness negatively, if they find an arrest on a person’s record, even if the prosecution dropped the charges or dismissed a case.
How Do I Get an Expungement?
In order to have a conviction expunged in Pennsylvania, the defendant must petition the state court that has jurisdiction over the records. After receiving the petition, if the court grants the expungement, the court then sends a certifying order to the relevant agency which has control over the records. The entire expungement process reportedly takes about 3 to 4 months.
Finally, even though a conviction has been expunged, a Pennsylvania court may keep and use the record of a conviction for certain, specific purposes. The purposes for which an expunged record might be kept may include determining future eligibility for probation programs, or to identify people in future criminal investigations. And a person should recognize that criminal records accumulated after an expungement are not automatically expunged. A person would have to go through the process again to expunge new records.
Do I Need a Lawyer to Expunge a Conviction in Pennsylvania?
As you can see, there is still a lot of complexity to Pennsylvania expungement law. A person should consult an experienced Pennsylvania expungement attorney to find out if they are eligible for having their criminal records expunged.
If your attorney determines that expungement is available in your case, they can represent you during the process and make the best arguments as to why you are deserving of expungement.