What Does my Expungement Lawyer Need to Know?

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 What is “Expungement”?

To “expunge” is to erase something or remove it completely. In law, “expungement” is the process by which a judge issues a court order to destroy or remove a record of a criminal conviction from state records. In the United States, virtually all expungement proceedings take place in state courts.

Expungement orders from federal courts are extremely rare, and there is no federal statute governing its application at the federal level. An expungement order directs the court to treat the criminal conviction as if it had never occurred, essentially removing it from a defendant’s official criminal record.

This legal process can be life-changing for someone with a past conviction or arrest record by opening up more options to them. For example, after the expungement process is complete, the person who was arrested or convicted is not legally required to disclose the incident to anyone.

This allows them to live more freely, without worry that past legal mistakes will follow them all their life. As an example, the expunged crime will not show up in a background check done by a potential private employer or landlord. Depending on the state, it may show up if the person applies for a state or federal government job.

Note that an expungement order concerns court records only. Expungement orders do not remove records from the press or social media, for example. It is not capable of erasing the conviction from anyone’s memory, nor from public records, newspapers, and the like. And in many states, police officers can still see the complete criminal records even after an expungement.

Expungement is not forgiveness for committing a crime. That is a legal pardon or clemency. In the United States, pardons are granted by public officials, not courts. The President, for example, issues pardons annually. State governors may also pardon certain defendants in their states. Expungement proceedings, however, must be ordered by a judge.

What Are State Laws Concerning Expungement?

Each state has its own laws about what may be expunged and how it is to be done. States vary as to whose records are eligible for expungement. In some states, such as Maine and North Dakota, only juveniles may have a record expunged. There is also variation about which offenses may be expunged – driving offenses, for example, may not be expunged from records in some states. Other serious offenses, including murder, kidnapping, and rape, may also be ineligible for expungement.

State courts also differ about the procedures for applying for an expungement, and about how records will be managed under an expungement order. Once a record is ordered by a court to be expunged, states then have laws about how the records are to be handled; they are typically either sealed or destroyed.

If a record is sealed, it may remain available to law enforcement officers, but removed from the public. If a record is destroyed, all relevant documentation is removed from the state court system following the state’s protocols for records destruction and even police officers will not have access to them.

What Questions Should I Expect at a Meeting with an Expungement Lawyer?

It’s important to prepare for your first appointment with an expungement lawyer. Expungements involve a detailed legal and factual analysis. In order to evaluate your claim and provide accurate legal advice, the lawyer must have a lot of information. While every lawyer has his or her own interview process, the following is a list of common questions:

1. Where Did the Offense Occur?
Expungement laws and procedures vary dramatically from state to state. Some states permit the expungement of a wide variety of criminal records, while elsewhere expungement (or record sealing) is more restricted. The lawyer cannot provide accurate advice unless he or she knows which laws apply to your case.

Typically you must file your expungement request in the original court that handled your criminal case. If you have any court documents, bring them with you to the appointment.

2. What Was the Offense?
Usually, a state’s expungement rules vary depending on the severity of the offense. It is easier to expunge a misdemeanor than a violent felony. For example, there may be extended waiting periods or other requirements for serious felonies. Most states prohibit the expungement of certain criminal offenses. These typically include violent crimes, sex crimes, and serious drug offenses. Again, these rules vary from state to state.

At your appointment, be prepared to discuss your criminal history in detail. If you have any police reports, court documents, or other information, bring them with you to the appointment.

3. Were You Convicted?
Some states only permit the expungement of non-conviction records. Non-conviction records include:

  • Arrest records that did not result in criminal charges,
  • Charges that were dismissed or withdrawn,
  • Cases ending in an acquittal, and
  • Cases that were resolved through a diversion program.

If you were convicted of a crime, you may have additional requirements in an expungement claim. For example, you typically must complete the terms of your sentence (including probation and the payment of fines) before you are eligible. If you have documents showing the successful completion of your sentence or the payment of your fines, bring them with you.

4. Do You Have Other Arrests or Convictions?
Many states limit the number of times you can expunge your record. Depending on where you live, you may be eligible for a single expungement. Other states require you to file a separate expungement request for each individual criminal offense. And, most states will not expunge your record if you have pending criminal charges. Be prepared to discuss your criminal history in detail.

5. When Did the Crime Occur?
Many states impose waiting periods in expungement cases. These waiting periods vary from a relatively short period of time to many years. In order to determine your eligibility, the expungement lawyer must understand when the crime occurred, when you were convicted, and when you completed your sentence (including probation and the payment of fines).

6. How Old Were You at the Time of the Crime?
If you were a juvenile at the time of the criminal offense, it will be easier to expunge your record. Most states have relatively generous rules about juvenile expungements—especially if you haven’t been charged with or convicted of subsequent crimes as an adult.

7. Do You Have Evidence of Rehabilitation?
In order to expunge your claim, you may have to convince a judge that expungement is in the community’s best interest. To prove this, you can show that you have a steady job, you are enrolled in school, and are otherwise contributing to society. Be prepared to discuss your lifestyle since your arrest or conviction.

8. What Should I Bring to a Meeting with an Expungement Lawyer?
It is important to bring any evidence you have to your first appointment. This may include court and criminal justice records, evidence that you have completed a drug or other rehabilitation program, evidence of clean medical health and/or clean drug tests, evidence concerning any immigration violations you might have, and other evidence supporting your claim that you qualify for a waiver of inadmissibility. This information will help the lawyer evaluate and understand your claim for a waiver.

Where Can You Find the Right Lawyer?

Before you try to file on your own, consider meeting with an expungement lawyer. Expungement claims can be very complicated—and a single mistake may result in a denial of your request. A lawyer can help you understand your rights and ensure that your claim is properly presented to the judge.

As mentioned above, states vary greatly in how they handle expungement requests: what crimes can be expunged, how to apply, whether someone your age can receive an expungement, how long you have to wait after conviction of a crime to request an expungement, and more. It is important to have the help of a local expungement attorney who will take into account the rules of your state and the facts of your case.


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