Expungement is a legal process where an individual’s criminal records are removed from public records and treated as if they no longer exist. This process may be helpful if an individual is applying for a job or looking for a place to live. Depending on the individual’s location, they may be able to file a petition with the court for a minor crime or a felony to be expunged from their record.
The rules and requirements for expungement vary greatly from state to state. It is usually easier to expunge or seal minor crimes, such as misdemeanors, and juvenile records. Some states allow expungement of felony crimes.
An individual may wish to have a crime expunged for several reasons. For example, some convictions may cause an individual problems when trying to obtain employment, professional licensing, and/or the right to vote, especially for felony convictions. Even if the individual is not convicted, the arrest and criminal prosecution on their record can cause similar issues.
I’d Like to Get a Felony Expunged — Is This Possible?
Expungement of a felony from an individual’s criminal record is an extremely difficult task. Generally, the more serious the crime, the less likely an individual will be able to have it expunged. Felony convictions for crimes such as first degree murder and child pornography are not typically eligible for expungement.
There are factors that may increase the likelihood that the court will consider a request for an expungement. These include:
- Whether the individual was a minor at the time the crime was committed;
- The nature of the crime;
- How much time has passed since the conviction or arrest; and
- If all court ordered requirements for the sentence are completed.
There is a difference between a felony arrest and a felony charge. A felony arrest occurs when an individual is placed in custody based on the belief that they committed a felony. A felony charge means that an official legal proceeding was initiated against the individual. It is more likely a court will expunge a felony arrest than a felony charge.
A felony conviction remains on an individual’s criminal record for life. The only way to remove it is through expungement. It can be possible to have felony conviction expunged from an individual’s record. There are usually state specific criteria that must be met prior to petitioning the court for an expungement.
One the criteria of an individual’s jurisdiction are met, they may file a petition with the court for expungement. The petition is typically filed in the same court the criminal case occurred. Depending on the state, other information, such as a certified copy of the individual’s criminal record, may be required.
If a Felony is Expunged, Does that Mean it is Totally Erased from My Record?
In most states, a felony that has been expunged is no longer a matter of public record. That means an individual is not required to report the charge or conviction on applications for employment, housing, public benefits, or education. Typically, if the potential employer performs a background check, the expunged felony will not show up.
There are, however, limitations to an expungement. For example, law enforcement agencies can still view expunged records. Both law enforcement and the courts may be allowed to consider expunged charges if they impact sentencing in a later criminal case.
Additionally, many states require a potential employee to disclose expunged offenses if they are applying for positions such as law enforcement, financial services, and/or working with children. An individual may also have to disclose expunged charges when applying for a professional license such as legal, medical, and/or pharmacy licenses.
Is Expungement the Same as Record Sealing?
No, expungement and record sealing are different. If a criminal record is sealed, it still exists, it just cannot be accessed by employers and other individuals. Usually, an individual’s juvenile criminal records are sealed once they reach 18 years of age. However, they may still be accessible via a court order.
Expungement, however, results in the actual criminal charges and arrest files being erased as if they did not occur. It is important to note the following about expungement and record sealing:
- Many felonies cannot be expunged;
- The majority of sex offenses are not eligible for record sealing;
- Expungement usually occurs with juvenile offenses or misdemeanors; and
- In some jurisdictions, although records are sealed, the original sealed conviction may still be used to increase the severity of a future sentence.
What Are the Requirements for Felony Expungement?
As noted above, in most states, an individual must meet certain requirements in order to have a felony expunged. Depending on the jurisdiction, the criteria may include:
- The completion of a waiting period after the conviction, which varies by state;
- Satisfying the terms of the conviction, which may include serving jail time, completing probation, and/or paying fines and/or restitution;
- A record clear of subsequent criminal charges and/or convictions; and
- Proof that the individual is rehabilitated and contributes to society, which may include employment, education, and/or volunteer work.
Can All Felonies be Expunged?
No, all felonies cannot be expunged. Most states will not expunge violent felonies, sex offenses and other serious crimes including weapons charges. The specific felonies that will not be expunged vary from state to state.
Some states do not permit felony convictions to be expunged. In such states, an individual can expunge felony criminal records only if the charges were dismissed, withdrawn, pardoned, or resulted in a non-conviction, such as deferred sentencing or a finding of not guilty.
Which Felonies Are Not Eligible for Expungement?
Most states that allow felony expungements have limitations on what can be sealed and/or expunged. As noted above, expungement is usually not available to individuals who committed serious or violent crimes. In addition, individuals required to register as sex offenders cannot have themselves removed from the registry when their record is expunged. Federal crimes also cannot be expunged.
Since the laws vary, it can be difficult to state with certainty what is and what is not eligible for expungement. As noted above, the more serious the crime, the less likely it will be expunged. Examples of felonies that are usually not eligible for expungement include:
- A felony in which the victim was under the age of 18;
- Sex crimes such as rape or sexual battery;
- Corrupting a minor; and/or
- Child pornography.
Certain felonies may still have legal consequences even if they are expunged. This may be the case in states which have three strikes laws, such as California. Under this law, even if a felony has been expunged, it may still count towards the three strikes. So, even if the felony does not appear on an individual’s record, they may still be cited if future felonies are committed.
There are some types of crimes that may be eligible for a reduction from a felony to a misdemeanor. A misdemeanor is easier to expunge than a felony, especially for non-violent crimes. Some states will recognize wobbler crimes, or crimes that can be charged as a misdemeanor or felony depending on the facts of the case. A felony reduction lawyer can help determine if a charge is eligible to be reduced from a felony to a misdemeanor.
Do I Need an Attorney for Help with Felony Expungement?
An criminal lawyer can assist you with a felony expungement. An experienced expungement lawyer can advise you on the process, assist with all steps and represent you during any court proceedings. You must file a petition with the court, follow procedural rules, present evidence to support the expungement request and possibly testify.
It is important to have an attorney’s assistance to present your best case since a felony stays with you for life. It may be possible to handle the process alone but there are many steps that must be completed in a timely manner and correctly before the court will even consider an expungement request. A expungement lawyer can advise you on local laws regarding expungement and protect your rights during the process.