Felony expungement is the process by which felony charges are deleted from one’s criminal record. Expungement allows a person to state under oath that the felony never occurred; it is as if the person was never charged with the crime. Felony expungement is also called “record sealing”, “expunction”, or “setting aside a conviction”.
The laws governing felony expungement are different from state to state. Some states do not allow felony expungement at all, while in some states only some felonies may be expunged. Also, federal felonies generally may not be expunged, although the defendant may be granted a pardon in very limited instances.
What are the Requirements for Felony Expungements?
The different requirements for felony expungement vary widely according to the laws of the state where the felony was committed. Expungement may also depend on the state definition for what is a felony. You may wish to inquire with a lawyer for the specific details of felony expungement in your area. However, felony expungement usually requires:
- Filing a request: Felony expungement is not automatically granted. A request must be submitted in writing to a judge who will conduct a hearing to determine eligibility. There is sometimes a fee for filing the request
- Fulfillment of sentencing: All fines and incarceration sentences must be completely fulfilled before filing for expungement
- Waiting period: Most states require a waiting period before a request for expungement may be filed. This is usually anywhere from 5-10 years after discharge or completion of the sentence
- Probation: Probation must be completed without any violations or incidents. Some states do not grant expungement for felonies unless probation has also been granted
Which Felonies may NOT be Expunged?
It is somewhat difficult to state which felonies may or may not be expunged due to the vast differences in state laws. Generally speaking, the more serious the felony charges, the less chance there is that it may be expunged. On the other hand, less serious felonies such as non-violent crimes (drug possession, prostitution) are more likely to be expungeable.
Some felonies that are usually not eligible for expungement are:
- Felonies where the victim is younger than 18 years old
- Sexual crimes such as rape or sexual battery
- Corrupting a minor
- Child pornography
Also, some felonies may still have legal consequences even if they have been expunged. For example, California has a “Three Strikes” law that imposes a life sentence on defendants who have been charged with three felonies. If a person has committed a felony in California, it may still count towards the three strikes even if has been expunged. The felony will not appear on the person’s record but the prior felony conviction may be cited if future felonies are committed.
Can a Felony be reduced to a Misdemeanor?
Yes- depending on the facts of the case, felonies can often be reduced to misdemeanor charges, especially for non-violent crimes. Misdemeanors are much easier to expunge than felony charges. Therefore a skilled criminal attorney will always research to see whether felony charges may be reduced to a misdemeanor.
Some states only classify three types of crimes: felonies, misdemeanors, and “wobblers”. Wobblers are in between felonies and misdemeanors in terms of the severity of legal consequences. They may often be punishable either as a felony or a misdemeanor. It is often these types of crimes that are eligible for reduction from felony to misdemeanor.
It is always best if the lawyer seeks to reduce the charge from felony to misdemeanor before it is entered into the record. That way the defendant has a better chance towards expungement upon completing their sentencing.
Also, some employers and authorities can still inquire whether a person has had any charges expunged (though they may not be able to inquire as to the nature of the charges). It is always more advantageous to state that one has had a misdemeanor expunged rather than a felony.
Do I Need a Lawyer for Felony Expungement?
Felony expungement is an important process that can help a person obtain a clean record. Since the requirements are so different by jurisdiction, it may be helpful to speak with a lawyer for more advice on how to get a felony expunged. An experienced expungement lawyer will be able to guide you through the process and assist you in filing your request.