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In the common law legal system, an expungement proceeding is a type of lawsuit in which a first time offender of a prior criminal conviction seeks that the records of that earlier process be sealed, making the records unavailable through the state or Federal repositories. If successful, the records are said to be "expunged". Black's Law Dictionary defines "expungement of record" as the "Process by which record of criminal conviction is destroyed or sealed from the state or Federal repository." While expungement deals with an underlying criminal record, it is a civil action in which the subject is the petitioner or plaintiff asking a court to declare that the records be expunged.
A very real distinction exists between an expungement and a pardon. When an expungement is granted, the person whose record is expunged may, for most purposes, treat the event as if it never occurred. A pardon (also called "executive clemency") does not "erase" the event; rather, it constitutes forgiveness. In the United States, an expungement can be granted only by a judge; while a pardon can be granted only by the President of the United States for federal offenses, and the state governor, certain other state executive officers, or the State Board of Pardons and Paroles (varies from state to state) for state offenses.
Each jurisdiction whose law allows expungement has its own definitions of expungement proceedings. Generally, expungement is the process to "remove from general review" the records pertaining to a case. In many jurisdictions, however, the records may not completely "disappear" and may still be available to law enforcement, to sentencing judges on subsequent offenses, and to corrections facilities to which the individual may be sentenced on subsequent convictions.
Criminal records in each state of Australia are covered by state law. In New South Wales, the relevant legislation is the Criminal Records Act 1991. Under the Act, an offender's criminal record may become spent if they do not re-offend for a period of 10 years. Offenses resulting in a prison term of more than six months will not become spent. Additionally, for certain employment occupations (e.g. education or child services), a "full disclosure" check is required, and spent convictions are still visible.
In the United Kingdom the term "spent conviction" is used. The relevant legislation is the Rehabilitation of Offenders Act 1974. In the data retention model of the Police National Computer, arrests which do not lead to a finding of guilt "step down" as soon as the relevant decision is made (typically a "not guilty" verdict or a dismissal of charges) and become visible to law enforcement only. Records of cautions and minor convictions do not step down and remain on the PNC and on enhanced CRB checks until the offender's 100th birthday.
Since the passing of the Protection of Freedoms Act 2012, people convicted for homosexual acts between consenting adults under section 12 of the Sexual Offences Act 1956 can apply to have the conviction totally removed from their criminal record. Clause 86 confirms the effect of a successful application would ensure the person is considered as having not committed, nor been charged, prosecuted or convicted of a homosexual act.
In the United States, criminal records may be expunged, though laws vary by state. Many types of offenses may be expunged, ranging from parking fines to felonies. In general, once sealed or expunged, all records of an arrest and/or subsequent court case are removed from the public record, and the individual may legally deny or fail to acknowledge ever having been arrested for or charged with any crime which has been expunged.
However, when applying for a state professional license or job that is considered a public office or high security (such as security guard, law enforcement, or related to national security), you must confess that you have an expunged conviction or else be denied clearance by the Department of Justice, and some such convictions may warrant automatic denials of licensure, whether expunged or not. There is no post-conviction relief available in the federal system, other than a presidential pardon.
Congressman Charles B. Rangel proposed the Second Chance Act in 2007, 2009, and 2011, which was intended to "[amend] the federal criminal code to allow an individual to file a petition for expungement of a record of conviction for a nonviolent criminal offense".
Eligibility for an expungement of an arrest, investigation, detention, or conviction record will be based on the law of the jurisdiction in which the record was made. Ordinarily, only the subject of the record may ask that the record be expunged. Often, the subject must meet a number of conditions before the request will be considered. Some jurisdictions allow expungement for the deceased.
Requirements often include one or more of the following:
- Fulfilling a waiting period between the incident and expungement;
- Having no intervening incidents;
- Having no more than a specified number of prior incidents;
- That the conviction be of a nature not considered to be too serious;
- That all terms of the sentence be completely fulfilled;
- That no proceedings be pending;
- That the incident was disposed without a conviction; and
- That the petitioner complete probation without any incidents.
Types of convictions that are often not eligible for expungement include:
- Felonies and first degree misdemeanors in which the victim is under 18 years of age
- Sexual battery
- Corruption of a minor
- Sexual imposition
- Obscenity or pornography involving a minor
- Serious weapons charges
In some jurisdictions, all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person's detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system can be expunged. Each state sets its own guidelines for what records can be expunged, or for whether expungements are available at all. The petitioner requesting an expungement of all or part of their record will have to complete forms and instructions to submit to the appropriate authority. The petitioner may choose to hire an attorney to guide them through the process, or he/she can decide to represent themselves. This is called appearing pro se.
Most jurisdictions have laws which allow - or possibly even require - the expungement of juvenile records once the juvenile reaches a certain age. In some cases, the records are destroyed; sometimes they simply are "sealed." The purpose of these laws is to allow a minor who was accused of criminal acts, or in the language of many juvenile courts, "delinquent acts," to erase his record, typically at the age of 17 or 18. The idea is to allow the juvenile offender to enter adulthood with a "clean slate," shielding him or her from the negative effects of having a criminal record.
Petition for expungement
California's expungement law permits someone convicted of a crime to file a Petition for Dismissal with the court to re-open the case, set aside the plea, and dismiss the case. In order for one to qualify for expungement, the petitioner must have completed probation, paid all fines and restitution, and not currently be charged with a crime. If the requirements are met for eligibility, a court may grant the petition if it finds that it would be in the interest of justice to do so. A successful expungement will not erase the criminal record, but rather the finding of guilt will be changed to a dismissal. The petitioner then can honestly and legally answer to a question about their criminal history, with some exceptions, that they have not been convicted of that crime. What is actually stated on the record of the case is that the case was dismissed after conviction. If the petitioner is later convicted of the same crime again, then the expungement may be reversed.
Certificate of rehabilitation
For persons who serve sentences in the state prison system (felons), they must apply to the Superior Court for a Certificate of Rehabilitation (CR). The CR does not remove or expunge anything negative from the individual's record; however, it places something positive on it. Among other requirements, the applicant must live in California and have done so for at least 5 consecutive years prior to applying, and been law-abiding for 7 years starting from the sooner of their release from prison or court supervision. After they meet all requirements and receive a CR, certain of their rights are restored. and a request for a pardon is automatically sent to the governor.
Juvenile criminal court records remain unless the individual petitions to have them sealed. This may be done when they reach their 18th birthday, even though some states provide for automatic expungement of certain juvenile records regardless of age.
It may be difficult to find employment when one has a DUI on his or her criminal record. There is not much that can be done to remove or conceal the DUI record, but in the state of California, it can be expunged. California Penal Code 1203.4 allows most types of convictions may be expunged. To qualify, the person must have completed probation, satisfied all financial obligations, not currently be facing charges or court supervision, and not have been sentenced to prison or parole.
States have taken significantly different approaches when it comes to expungement for controlled substance violations such as marijuana and hashish. Typically, only convictions of possession or possession with the intent to distribute are eligible for expungement. Factors such as the weight/amount of the particular substance, age of the offender, and the number of offenses may impact eligibility for expungement as well. For example, in New Jersey, the threshold is 25 grams for marijuana and 5 grams for hashish if the offense occurred when the offender was 21 years of age or younger.
Firearm rights restoration
One of the major benefits of expunging a criminal record is that there is a chance the individual may regain their right to possess a firearm. Federal laws deprive individuals with felony and domestic violence offenses of their firearm rights. Some states also have statutes depriving individuals of certain gun rights, usually for a definitive period of time. Expungement can restore gun rights in some states but not in others. Seeking restoration of firearm rights requires a separate petition – an additional step.
In states like California, state laws allow an individual to reduce a "wobbler" offense from felony to misdemeanor, which will effectively restore firearm rights, provided that the individual has not been convicted of another felony or has not lost their firearm rights for another reason.
- Black's Law Dictionary, p. 582 (6th ed. 1999)
- "Cameron Pledges Pardons for 'Outdated' U.K. Gay-Sex Convictions". Bloomberg. 14 April 2015. Retrieved 20 October 2016.
- Expungement (Erasing an Arrest or Conviction)
- Stroleny, Julian. "Expungement Permissibility". Pagan & Stroleny, P.L. Retrieved 8 January 2017.
- Expungement USA-Set Aside Conviction
- Form CR-180 Petition for Dismissal
-  California Penal Code section 1203.4
- California Penal Code § 4852.01-4852.21
- CDCR Quick Reference Guide for CRs & Pardons
- How to Apply for a Pardon
- Calif. Courts Self Help -- Juvenile records[dead link]
- "California Penal Code Sections 1191-1210.5". CA.gov. State of California.
- Wu, Stella. "NJ Rev Stat § 2C:52-5 (2013)". Justia US Law.
- Wu, Stella (July 15, 2015). "California Felony Reductions and "Wobbler" Criminal Offenses". WipeRecord. Sam Eastman.
- Margaret Colgate Love, Relief From the Collateral Consequences of a Criminal Conviction: A State-By-State Resource Guide (June 2008)