Expungement: How to Clear Your Criminal Record

Due to today’s search technology, nearly anyone has informational access to other people’s lives, including whether someone has a criminal record. According to the American Progress for Justice, over 70 million Americans have a criminal record that can come- up on background checks.

Criminal Records are Publicly Accessible

Purpose of Expungement

The primary purpose of expunging a criminal record is to enable a person with a public criminal history to remove it from public access to improve their chances for employment, housing, and education.

As of 2022, nearly every state has laws allowing people to expunge arrests and criminal convictions from public records.

Expungement is most important when filling out a job application. If the application asks whether the applicant has ever been convicted of a crime, if the offense was expunged, the applicant can honestly and legally respond by stating no.

State Laws Govern Expungement

Since state laws differ, some states will allow expungement for misdemeanors but not felonies. Other states limit the right to expungement for misdemeanors but not violent felonies.

Finally, some states allow for expungement only if the defendant has successfully completed probation and has paid all fines and restitution to the victims.

Finding Work

Job Applicants

A criminal record can present unsurmountable obstacles to finding employment and force one to live under a dark cloud of shame that prevents such people from moving ahead and regaining social acceptance.

Obtaining employment today is difficult enough. Securing employment with a criminal record is next to impossible. According to the Justice Department, over 70 million Americans have a criminal record. Job applicants with criminal records face daunting barriers to obtaining employment.

Yet, neither federal nor state laws completely protect such job applicants from what many believe is a form of legal discrimination.

Don’t Hire Policies

Nearly 9 in 10 employers now use criminal background checks to evaluate potential job applicants.

Most large employers maintain a “don’t-hire” policy that provides for the automatic rejection of all job applicants who have criminal records, irrespective of the type of crime committed, the age of the conviction, or the degree to which the job applicant has been rehabilitated.

Ironically, these employment practices make it problematic for a person with a criminal record to become a law-abiding, tax-paying citizen without a job.

Employer Potential Liability for Not Screening Applicants Criminal History

Negligent Hiring

There has never been as much job applicant screening as there is today. One reason for all the caution is that employers are legally obliged to exercise reasonable care in hiring new employees. This includes conducting a complete civil and criminal background check on a job candidate.

Should an employer not exercise proper care in the hiring process and the subject employee subsequently injures or harms another person during employment, the employer can be held legally responsible for the damages caused by that employee under the accepted body of law known as negligent hiring and supervision.

The current reality is that neither the federal government nor state laws protect such job applicants from what is arguably a form of discrimination.

Finding Housing

Likewise, 4 in 5 landlords perform background checks on prospective tenants. Given the personal, economic, and social impact of having a criminal record, expungement and sealing criminal records is a legitimate and important way to relieve such burdens.

The Legal Process of Expungement

Commonly Used for Drunk Driving Convictions

Under most states, a motion or petition for expungement of a drunk driving conviction can be made when your court probation expires. In these states, there is a minimal waiting period, and a petition to expunge can be made by your attorney soon after you have successfully completed the terms of your probation.

At the federal level, there are no formal expungement procedures. Instead, the decision-making process has been deferred to the states. Each state has enacted its own expungement laws, which set out the following:

• Those eligible to have their criminal records expunged.
• Types of criminal offenses that can be eligible for expungement.
• The process required to apply for expungement.
• How the state manages criminal records once the court grants an expungement application.

Juvenile Records Treated Differently: In most states, applications for sealing juvenile records are among the most common and are managed through a state’s official sealing of juvenile records process.

Major Benefits of Expungement

Expungement generally refers to a judicially ordered elimination of one’s criminal record and destroying all related arrest and conviction records from the public view.

Expungement, when successfully performed, not only brings closure and relief for the ex-offender, it opens the door to re-entry into society and the workplace.

Other benefits include:

• Becoming eligible for housing assistance
• Obtaining a professional license
• Even being legally eligible for student loans

Not All Crimes Qualify for Expungement

Violent Crimes and Sex Crimes Not Expungable

The severity of the crime will often play a more significant role in whether the court will grant the expungement.

Most jurisdictions prohibit expungement for violent crimes such as:

• Murder
• Rape
• Kidnapping
• Child molestation
• Arson
• Torture

What Expungement Acomplishes

No Longer A Public Record But…

Expungement, in most jurisdictions, does not erase a criminal record with the courts or law enforcement. Instead, the process resembles a legal sealing of the record in which the crime and conviction are no longer visible as a public record.

Other Considerations

Owning A Weapon

An expungement will not change the situation if you cannot possess a firearm because of your record.

Suspended Driving Violation

Will Not Change Your Driving Record

If your driver’s license was suspended, an expungement would not operate to un-suspend your driving privilege in most jurisdictions.

Remember, the courts and law enforcement do not erase your criminal record. Further, should you be charged with another crime after your expungement, the expungement will still count as a prior for purposes of penalty enhancement and sentencing. Further, it is irrelevant whether you pled guilty or no contest to the original criminal offense.

Eligibility For Expungement

The requirements, procedure, and eligibility for expungement can vary between state jurisdictions. The relief available will mostly depend on two major factors:

• First, whether the conviction was for a serious felony
• Second, the age of the sentence

Among the two factors, the severity of the crime will be the most determinative factor in whether the court will grant an expungement.

Successful Completion of Probation

Some state jurisdictions require a minimum amount of time to pass  (if a serious crime, as much as seven years) after the successful completion of probation before an ex-offender can legally apply to the court for expungement relief.

Finally, there must not have been any arrests between the time your probation ends and the time the court decides on the offender’s application for expungement.

Certificate of Rehabilitation

In some states,  if you do not qualify for expungement, you may be eligible for a certificate of rehabilitation which is issued by the state.

A certificate of rehabilitation may help individuals apply for certain types of employment even if they do not qualify to have their records cleared through the expungement process.

Consult With a Criminal Defense Attorney

Your most immediate and best option after you complete probation is to seek legal counsel to determine whether you qualify for expungement. Your lawyer can explain the qualifying rules in your state.

If you have specific questions or require additional information about your legal rights and obligations, consult with a verified Criminal Defense Lawyer about your issues as soon as possible.