The process of expungement essentially treats a first time offender’s criminal record as if it doesn’t exist. In essence, a person’s legal record becomes sealed, or in some cases, permanently erased, in the eyes of the law. Every state has its own set of options and limits for recording sealing or expungement.
However, all states permit some form of expungement for juvenile offenses, with some states automatically expunging juvenile criminal records once the defendant reaches eighteen years of age. The severity of the case also influences expungement. Expungement may also be referred to as setting aside a conviction, or petition for dismissal.
A misdemeanor offense is a lesser crime that is punishable by a monetary fine, or a sentence of less than one year in jail. Some examples of misdemeanors include:
- Petty theft;
- Public intoxication;
- Simple assault;
- Disorderly conduct;
- Reckless driving;
- Resisting arrest; or
- DUI and traffic offenses.
All of the misdemeanors listed above are also offenses that are commonly expunged.
If a person has had their record sealed, they do not need to mention this in instances such as applying for a job. Thus, in most cases, an expunged arrest or conviction will not be found when a potential employer, educator, or other company initiates a background check. Generally, an expungement process typically costs between $400 and $1,000, but may vary due to your personal circumstances and case.
It is important to understand that not every misdemeanor qualifies for expungement. Every state has their own set of qualifications, and these laws frequently change. Additionally, many misdemeanors are simply too close in nature to felony crimes to set aside a conviction. An example of this is if a DUI case involves serious injury to another person.
These misdemeanors are known as “wobblers”, as they “wobble” the line between simple misdemeanor and serious felony, and can be treated as either. Most felonies cannot be expunged, and as such, many of these “wobblers” may not be expunged in some states either.
Criminal record expungement depends on a few factors. These include the jurisdiction, the nature of the misdemeanor, the amount of passed time since the arrest or conviction, and the criminal history of the defendant.
Each court has their own expungement process, but typically, the first step is to apply for the expungement, in writing. Misdemeanor expungement is not automatically granted in most cases, so it is necessary to specifically request it. From there, the criminal record of the person requesting expungement will be thoroughly reviewed in order to determine eligibility.
Again, each state has their own eligibility criteria; generally, this includes:
- Fulfilling a waiting period, such as one to three years after discharge from jail, or paying fines;
- Having no more than a specific, set amount of prior charges on record;
- Serving or fulfilling the terms of the original sentence;
- All pending proceedings being resolved prior to petitioning for dismissal; and
- Completing required probation without any incidents or violations.
Once the district attorney or prosecutor’s office has been served with your request, they will review the petition, confirm facts and eligibility, and file any objections they may have. The court then receives the petition, as well as any objections, and may schedule a hearing to determine the outcome of the case. The judge will hear both sides and make the decision to approve or deny the expungement request.
Misdemeanor expungement is not a magic wand. This means that it does not make the prior offense disappear completely, and there are several misdemeanors that do not qualify for expungement. Expungement cannot restore gun ownership privileges, and it cannot excuse a person from sentences that require the defendant to register on a sex offender list.
Additionally, it is often the responsibility of the defendant to notify any agencies and organizations that have previously recorded the conviction. This could include other courts, family services agencies, and the department of motor vehicles.
The defendant will likely need to submit a copy of the expungement order, along with a request that these agencies update their own records to reflect the change. Expungement is not automatic.
Some misdemeanor crimes are classified as “priorable,” meaning a crime that can be used to increase the severity of the sentence for future, related crimes. If a priorable misdemeanor has been expunged, it will still be removed from the defendant’s record; however, future convictions for similar crimes may lead to an enhanced conviction, influenced by the expunged crime, even if the priorable was previously expunged.
Having a misdemeanor expunged is a complicated process that involves a legally complicated process of determining eligibility. A knowledgeable and qualified criminal defense attorney will educate you on your state’s requirements for an expungement of your specific case.
They will also help you understand your eligibility, as well as represent you in court, and assist you in notifying all appropriate agencies of the expungement if need be.