If a person has a criminal record, they may find it beneficial to have their record sealed or expunged as this would allow them to honestly answer “no” in situations where they may be asked to divulge any criminal history that they may have. For example, applying for a job or attempting to rent an apartment. Not every type of arrest or conviction can be expunged, and in fact, which records are able to be expunged varies greatly from state to state.
Expungement is the process of virtually erasing criminal records which detail either arrest or conviction. While the specific requirements differ in each state, most states do have laws specifying that once a record has been expunged, it does not need to ever be disclosed, including to potential landlords or employers.
Once eligibility for expungement is determined, in some states, when the situation is fairly simple and straightforward, hiring an attorney is not necessary to complete the process. Many states and courts offer all of the necessary information and forms as free downloads on their websites. While the information and the downloads are free, people filing a request for expungement can expect to pay a court fee at the time of filing. In the event that the situation surrounding the criminal records is more complex, a qualified criminal law attorney may be needed to facilitate the application for expungement.
In the event that a person is successful at getting their record sealed or expunged, there are still situations that could void the sealing and thereby make the records visible again. Many states will allow conviction records to be expunged only once per individual, so if a person has previously had a record expunged, they would not be able to expunge additional criminal records. Additionally, if a person is charged with a crime, in most states, any previously expunged convictions will be made accessible to the prosecutor. Any previously expunged convictions can be used to show a pattern of crime and can be used as justification for more severe charges.
Quite often, repeat offenders receive increased or heavier sentences. Because of this, if a person is convicted of a repeat offense, both the judge and the prosecutor have access to expunged records, which the prosecutor will consider when asking for and the judge will consider when choosing sentences for repeat convictions.
Additional situations which may require the temporary voiding of expunged records is when a person is applying for some government jobs, such as positions within juvenile court services, court administrative positions, or agencies the review license applications for handguns. Other professions that often require employers to have knowledge of or access to expunged records include law enforcement, school teachers, and professions that require a professional license, such as nursing, medicine, pharmacy, and law.
Expunging federal convictions is significantly more complicated and presents much more of a challenge compared to state convictions. There is no federal set of comprehensive statutes for allowing expungement for various arrest and conviction records. The federal statute does not provide for expungement, however it does, in certain situations allow the dismissal of cases with possession of minor amounts of certain controlled substances. US Code, Title 18, Part II, Chapter 229, Subchapter A, Statute 3607 covers special probation and dismissal procedures for drug possessors. While a dismissal is not the same thing as an expungement, it will allow the power to deny that a person has/had a conviction. Dismissal only applies to convictions relating to simple illegal possession of certain substances and must also meet additional requirements such as being a first offense, for only certain drugs, the amount of the drug the person had in their possession and the circumstances surrounding the illegal possession.
A person’s ability to expunge a federal conviction record depends on where the conviction took place. There are thirteen federal circuits, some of which have ruled that a judge’s inherent power to “make things right” will allow for them to consider the expungement of arrest and conviction records, while some of the circuits have not given judges the right of expungement. If a conviction took place in a circuit that does not give judges the right of expungement, the courts will refuse to even hear whatever merits the person may have for their case. Even if a person’s conviction took place in a circuit that does give judges the right of expungement, it is extremely rare for a federal judge to grant an expungement. In fact, a person would need to provide enough evidence to convince the judge that without an expungement their basic legal rights will not be preserved.
Adding to the difficulty of the expungement of federal convictions is the fact that there is no set way rules regarding how to request or apply for an order of expungement. If a person determines that they want to move forward with a request for expungement, it is advisable that they procure the services of an experienced criminal defense attorney whose experience includes regular practice in the circuit court district in which they were convicted.
In the state of Florida, a person’s record may be eligible if they were arrested for or charged with a crime, but were never convicted. In this situation, the accused can only qualify to have their record sealed if they have not previously had a record expunged, even if it was in another state. Additionally, there are many other exceptions and requirements pertaining to expungement of a non conviction, all of which are spelled out in Florida Statute 943.0585.
In the event that a person plead guilty or nolo contendere to a crime, or if they were found guilty, the list of crimes that cannot legally be expunged, under Florida law, is quite extensive. Felony convictions, for example, are not eligible to be sealed or expunged. Additionally, in Florida, driving under the influence is not eligible for expungement. On their website, the Florida Department of Law Enforcement provides an Expunge/Seal Package that provides additional information and a complete listing of offenses that are not qualified for expungement.