Expungement in the United States

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Expungement in the United States is a process which varies across jurisdictions. 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.

Federal[edit]

Federal offenses are difficult to obtain expungement and vary based upon the federal circuit. Some federal circuits have upheld the inherent right of judges to order expungement while others have held the opposite.[1]

Legislation[edit]

Second Chance Act

U.S. Representative Charles B. Rangel (D-NY15) 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".

Fresh Start Act

U.S. Representative Steve Cohen (D-TN9) introduced H.R. 2449 or The Fresh Start Act of 2011 during the 112th Congress, which would have allowed certain non-violent offenders to seek expungement of otherwise lifelong felonies.[2]

The REDEEM Act

In July 2014, Senators Rand Paul and Cory Booker introduced the Record Expungement Designed to Enhance Employment (REDEEM) Act, a bi-partisan bill in an effort to reform the criminal justice system which would, in part, allow for the expungement of Federal criminal records for one time, non-violent offenses.[3][4]

State[edit]

Alabama[edit]

Alabama recently passed expungement legislation in 2014. Another Bill is being looked at 2/7/17

Arizona[edit]

Arizona's expungement equivalent is "setting aside" a conviction. Arizona's setting aside statute[5] allows a defendant to petition the court to have a conviction set aside after the terms of the sentence are met. If the court grants the petition, the defendant is "released from all penalties and disabilities resulting from the conviction other than those imposed by the Department of Transportation."[5] The conviction can be used in any subsequent criminal prosecution.[5]

California[edit]

California has several post-conviction remedies that are sometimes called expungement.[6] For misdemeanor and felony crimes (not involving a sentence in state prison), a petition for expungement is filed in the court of conviction, seeking to have the conviction dismissed pursuant to Penal Code section 1203.4. For crimes involving a prison sentence, a petition for a Certificate of Rehabilitation (CR) is issued by the courts and filed with the California Department of Corrections and Rehabilitation. Unlike an expungement, which is filed in the court of conviction, a petition for a Certificate of Rehabilitation is filed in the current county of residence. If the Certificate of Rehabilitation is granted, it automatically becomes an application for a pardon by the California Governor.[citation needed]

Further, Penal Code 851.8 provides that defendants whose cases have been dismissed or who were never charged after arrest may petition for a Declaration of Factual Innocence. If granted, all records of arrest and prosecution are to be seated for three years, then permanently obliterated. Copies of this order are sent to both the CA Department of Justice and the FBI. Those granted this remedy may legally deny being arrested in all instances as the arrest is deemed "never to have occurred" in the first place.

Colorado[edit]

Colorado law has recently been changed via Colorado HB 11-1167, which allows drug conviction to be sealed. This requires strict conditions to be met concerning the original violation and the time and behavior since the conviction. This is part of a greater movement by the Colorado Criminal Justic Reform Coalition (ccjrc.org) to create a way for forgiviness and redemption for people who have been convicted based on past drug convictions.

Connecticut[edit]

In the State of Connecticut, individuals within a certain age group are defined as "Youthful Offenders" and the majority of those convicted within the defined age limitations may have their criminal record erased under Sec. 54-76o of CHAPTER 960a.[7]

Florida[edit]

Florida law allows for expungement of criminal records where the criminal case resulted in a dismissal by the court, a nolle prosequi (charges dropped) by the state attorney, or an acquittal by the judge or jury. Most types of criminal charges can also be sealed where the case resulted in a withhold of adjudication. There are certain types and categories of criminal charges that cannot be sealed if the person received a withhold of adjudication.[8] To be eligible for sealing or expungement, the defendant must not have been adjudicated guilty of any criminal offense, must not have previously received an expungement or sealing, and must not be in the process of obtaining another sealing or expungement in another court. All criminal records are eligible for expungement if the charges end up being dismissed by the court, dropped by the state, or if the person was found not guilty by a judge or jury after trial. However, some criminal records are ineligible sealing if the charges resulted in a final disposition of Adjudication Withheld.[9][10] A Certificate of Eligibility from the Florida Department of Law Enforcement is required prior to petitioning the court for an order to seal or expunge a record. An application to the FDLE must be completed and be accompanied with a certified disposition of the charge(s) seeking to be sealed or expunged. If an expungement is sought, the application to the FDLE must also be signed by the State Attorney attesting to the fact that the charges were dropped, dismissed, or that the person was found not guilty after trial. There is a $75.00 charge for the Certificate of Eligibility. After obtaining the required certificate of eligibility, the person then must file a petition to seal or expunge and attach the FDLE certificate of eligibility, an affidavit indicating that they are eligible for sealing or expungement, and a proposed order for the judge to sign if the petition is granted.

EFFECT OF A CRIMINAL RECORD SEALING OR EXPUNGEMENT

The person who is the subject of a criminal history record that is expunged or sealed may lawfully deny or fail to acknowledge the arrests covered by the expunged record, except when the subject of the record: 1. Is a candidate for employment with a criminal justice agency; 2. Is a defendant in a criminal prosecution; 3. Concurrently or subsequently petitions for relief under the record sealing or expungement statutes; 4. Is a candidate for admission to The Florida Bar; 5. Is seeking to be employed or licensed by or to contract with the Department of Children and Families, the Division of Vocational Rehabilitation within the Department of Education, the Agency for Health Care Administration, the Agency for Persons with Disabilities, the Department of Health, the Department of Elderly Affairs, or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the disabled, or the elderly; 6. Is seeking to be employed or licensed by the Department of Education, any district school board, any university laboratory school, any charter school, any private or parochial school, or any local governmental entity that licenses child care facilities; 7. Is seeking to be licensed by the Division of Insurance Agent and Agency Services within the Department of Financial Services; or 8. Is seeking to be appointed as a guardian pursuant to Florida Statute Section 744.3125. [11]

Georgia[edit]

Georgia law allows for "records restriction" which allows for the record of an incident to be restricted from the publicly available criminal records that the public are able to view. It does not allow for expungement in the traditional sense.[12]

Illinois[edit]

Illinois law allows the sealing or expungement of parts of the records of a conviction.[13] Sealing a conviction prevents the public, including employers, from gaining access to that record.[13] To be eligible for sealing of a conviction record in Illinois one must have been sentenced to supervision.[13] A waiting period of four years also is required, beginning at the time of discharge from supervision, where no convictions were entered.[13] Some misdemeanors are ineligible for sealing.[13] Effective January 1, 2014, many class 3 and 4 felonies are eligible for expungement.[1]

Indiana[edit]

Indiana's Second Chance law, sponsored by Sen. Greg Taylor, D-Indianapolis, allows for the expungement of certain misdemeanor and felony offenses. Indiana Code 35-38-9-2 through 35-38-9-6 allows for the expungement of misdemeanors, and non-violent felonies. Crimes of a sexual nature are excluded from the law. A waiting period of 5 years is required for misdemeanors, as well as 8 years for a lesser felony. Ten years must have passed for more serious felonies. No charges must be pending against the individual and a fee must be paid to the clerk of the court. The individual's driver's license must not currently be suspended and they may not have a pending suspension. The person must have successfully completed their sentence, including any term of supervised release, and satisfied all other obligations placed on the person as part of the sentence. More serious felonies may require consent of the prosecutor. [14]

Kentucky[edit]

Kentucky allows for the limited expungement of misdemeanor charges. For cases that were dismissed, or acquitted, an application for expungement can be made 60 days after the dismissal – KRS 431.076. The expungement of a misdemeanor conviction is permitted after five years after the completion of the sentence / probation if there have no further convictions during that time period, and certain other conditions have been met – KRS 431.078. Sex offenses, and crimes against children are not eligible for expungement. Kentucky requires that each person seeking an expungement obtain a certificate of eligibility from the Kentucky Court of Justice prior to petitioning for the expungement in the local court where the case was filed.[15]

Missouri[edit]

Missouri has two forms of expungement, one generally applicable to criminal cases and a unique one for the crime of being a minor in possession of alcohol.

If certain requirements are met, Missouri law allows a person to have an arrest record expunged, which the law of Missouri defines as the process of legally destroying, obliterating or striking out records or information in files, computers and other depositories relating to criminal charges.[16] Records expunged under this provision still may be opened to law enforcement if the person is charged with a subsequent offense or if any of the requirements of expungement no longer are met.[16]

In 2005, the Missouri General Assembly enacted a special new section in the state's Liquor Control Law allowing for the complete and total expungement for the offense of being a minor in possession of alcohol.[17] Unlike ordinary expungement, the MIP expungement exists with the explicit legislative mandate that the effect of an order of expungement under it "shall be to restore such person to the status occupied prior to such arrest, plea or conviction, as if such event had never happened."[17]

New Hampshire[edit]

New Hampshire statutes allow any person whose arrest has resulted in a finding of not guilty, or whose case was dismissed or not prosecuted, to petition for annulment of the arrest record at any time, free of charge.[18]

Any person who has been convicted may petition for annulment after he/she has completed all requirements of their sentence, including probation, and paid a $100 fee to the department of corrections to cover the cost of an investigation into the criminal history of the petitioner:

  • For a violation, one year, unless the underlying conviction was for an offense specified under habitual offender law.
  • For a class A or B misdemeanor excluding sexual assault, 3 years.
  • For a class B felony other than incest or endangering the welfare of a child by solicitation, 5 years.
  • For a class A felony, 10 years.
  • For sexual assault, 10 years.
  • For felony indecent exposure or lewdness, 10 years.

The person whose record is annulled shall be treated in all respects as if he had never been arrested, convicted or sentenced, except that, upon conviction of any crime committed after the order of annulment has been entered, the prior conviction may be considered by the court in determining the sentence to be imposed, and may be counted toward habitual offender status.

In any application for employment, license or other civil right or privilege, or in any appearance as a witness in any proceeding or hearing, a person may be questioned about a previous criminal record only in terms such as ""Have you ever been arrested for or convicted of a crime that has not been annulled by a court?

New Jersey[edit]

New Jersey statutes allow expungement of conviction of many indictable offenses, disorderly persons offenses, municipal ordinances, and juvenile adjudications. With the exception of applicants who have graduated from a "special drug probation," the statutes disallow expungement for convictions if the applicant has been convicted of two or more indictable offenses,[19] or four or more disorderly persons offenses.[20] If the applicant has a combination of one criminal conviction and up to two disorderly persons convictions, both the criminal conviction and disorderly persons convictions can be expunged after the waiting period has been satisfied.[19] A person who has had an indictable charge dismissed on account of a diversion cannot thereafter have a criminal or disorderly persons conviction expunged.[21] However, no number-of-conviction limitations are imposed for persons who have satisfied drug court "special probation" and who have had no subsequent criminal, disorderly persons, or petty disorderly persons convictions.

The waiting period was ten years for indictable convictions, five years for disorderly offenses, and two years for municipal ordinances. In 2010, the waiting period on indictable convictions was lowered to five years. On April 18, 2016, the waiting period for disorderly persons offenses was lowered to three years. However, applicants who have not waited the full ten years for indictable offenses, or the full five years for disorderly persons offenses, must satisfy the judge that granting the expungement is in the public interest. No such showing need be made once the full ten (or five) years have elapsed.

Waiting periods begin to run on the date of sentencing, the date all fines are paid, or the completion date of probation or parole, whichever occurs last. There is no waiting period for most dismissals and acquittals.[22] However, if the dismissal arose on account of a diversion, there is a six-month waiting period.[23] If the acquittal resulted from a finding of insanity or lack of mental capacity, records of the arrest cannot be expunged.[24] Traffic offenses cannot be expunged.[25] However, records of arrests and convictions for disorderly persons offenses that are defined in Title 39 (traffic statutes) may be eligible to be expunged. No New Jersey published decisions address that issue.

Expungements give the person the legal right to state, even under oath, that the event never occurred. Civil disabilities associated with the conviction are eliminated. However, expunged records must still be recited in certain situations. These situations include applications for employment with a law enforcement agency, applications for employment in the judicial system, and applications for a subsequent expungement. Records expunged after completion of "Special Probation" (see first paragraph, above) become automatically unexpunged if the person is thereafter convicted of another criminal, disorderly persons, or petty disorderly persons offense.

Not all states honor New Jersey Expungements. White v. Thomas, 660 F.2d 680, 685 (5th Cir., 1981), cert. den., 455 U.S. 1027 (1982), held that each state may interpret its own law to determine what recognition it may give to the expungement order of a sister state. The United States Supreme Court has not weighed in on that issue.

New York[edit]

New York Criminal Procedure Law 160.50 permits the "sealing" of cases where charges were dismissed, vacated, set-aside, not filed, or otherwise terminated. Otherwise, New York does not allow expungements, or "sealings," of cases where a conviction was entered, except for some older controlled substance, marijuana, and loitering offenses. Sealing a record under 160.50 will prevent the public from having access or seeing the records, including fingerprint cards, photographs, court entries, and other information related to the case. The record may still be made available to some entities, such as courts and law enforcement.

New York also permits the expungements of non-criminal dispositions (violations and traffic infractions, such as disorderly conduct) through New York Criminal Procedure Law 160.55. Misdemeanor[citation needed] and felony adjudications are not eligible.

Effective 2009, New York Criminal Procedure § 160.58, a petitioner convicted of most felony drug, marijuana, or Willard non-drug eligible crimes may request to have their records for those crimes sealed if they successfully complete DIVERSION, DTAP, or a similar substance abuse treatment program recognized by the court. The sealing will also extend to up to three of the petitioners misdemeanor drug convictions.[citation needed]

The 2010 amendment to New York Criminal Procedure Law Article 440 creates a specific mechanism for survivors of trafficking to vacate prior prostitution convictions if the acts were committed as a result of having been trafficked. The law now provides, in relevant part, that a motion to vacate a judgment of conviction may be granted where: "...the arresting charge was under section 240.37 (loitering for the purpose of engaging in a prostitution offense, provided that the defendant was not alleged to be loitering for the purpose of patronizing a prostitute or promoting prostitution) or section 230.00 (prostitution) of the penal law, and the defendant’s participation in the offense was a result of having been a victim of sex trafficking under section § 230.34 of the New York Penal Law or trafficking in persons under the Trafficking Victims Protection Act." C.P.L. § 440.10(i) (2009) (effective Aug. 13, 2010). See http://www.sexworkersproject.org/downloads/2012/20120422-memo-vacating-convictions.pdf

North Carolina[edit]

North Carolina's expungement statute, allows for one adult expungement per lifetime. Cases in which there was a dismissal of charges or a finding of not guilty can be expungement once the judgement is entered. Non-violent Class H and I felonies and non-violent misdemeanors can be expunged 15 years after completion of sentence. Exceptions are for drug related charges that involve methamphetamines or heroin, or possession with intent to sell and deliver or sell or deliver cocaine. Offenses that include inclusion of a registry such as the sex offender registry are non-expungible.[26]

Ohio[edit]

Ohio is a "sealing" state[27] Sealing allows eligible offenders to petition the court for the sealing of a conviction record, or the record of a case resulting in an acquittal, no-bill, or dismissal of the criminal charges.[28] To be eligible to have a conviction sealed, one must have no pending criminal charges, and have been convicted of not more than one felony, two misdemeanors, or one felony and one misdemeanor, other than multiple offenses which arose from the same act, or that were adjudicated in the same proceeding where the criminal acts occurred within a three month period of each other.[29] Minor misdemeanor convictions are not considered for purposes of determining who is an eligible offender, nor are traffic convictions except for those offenses specifically included by statute, examples of which include as driving under suspension and operating a vehicle while intoxicated.[30] To seal the records of a conviction, a defendant must first complete all terms of the sentence imposed in the case sought to be sealed, including the payment of all fines, but exclusive of court costs and restitution obligations, and the completion of all terms of incarceration, probation, and other sanctions imposed as part of the sentence in the case.

A convicted offender is eligible to petition the sentencing court for the sealing of the records of the case after one year has passed from the date the defendant completed their sentence in a misdemeanor case or three years in cases that resulted in a felony conviction. There is no waiting period in the case of criminal proceedings that resulted in an acquittal or dismissal with prejudice, however; where a no bill is returned by a grand jury as to an individual, or the proceedings against them are dismissed without prejudice, they are ineligible to petition for the records of the case to be sealed until two years have passed from the date it was returned.[28] Convictions for certain offenses are ineligible for sealing, including many sexual offenses, crimes against children, felonies of the first and second degree, and offenses for which a mandatory term of imprisonment applies,[31] however; proceedings terminated by acquittal or dismissal with prejudice are not subject to this limitation.[32] Where a prosecution is terminated by a dismissal without prejudice, but the statute of limitations has not yet expired for every dismissed charge, the Ohio Courts of Appeal are in conflict as to whether the defendant is eligible to have the case sealed. While the plain language of the statutes does not require the expiration of the statute of limitations prior to entry of an order sealing the records of a dismissed case, as recognized by several Ohio Courts of Appeal, at least one Appellate Court has ruled otherwise.[33] This case has been certified as creating a conflict among the Ohio Courts of Appeal which will be resolved by the Ohio Supreme Court.[34]

Oklahoma[edit]

Oklahoma allows for four different types of criminal records expungement under Oklahoma Statue Title 22 – Criminal Procedure. Section 18 Expungement allows for the sealing of certain nonviolent felonies and misdemeanors. These records are still accessible by court order but are sealed from the public. Expungement under Section 19a allows for the expungement of criminal history if a person was the victim of identity theft and used that stolen identity to commit a crime. Section 60.18 Expungement allows for the expungement of Victim Protective Orders. Section 991(c) Expungement is available if a person has been given a deferred sentence and the conditions of the deferred sentence have been met. Immediate court records will be sealed under Section 991(c) but the Oklahoma State Bureau of Investigation will show that a person "plead not guilty, case dismissed."[35]

Oregon[edit]

137.225¹

Order setting aside conviction or record of arrest

• fees
• prerequisites
• limitations

(1)(a) At any time after the lapse of three years from the date of pronouncement of judgment, any defendant who has fully complied with and performed the sentence of the court and whose conviction is described in subsection (5) of this section by motion may apply to the court where the conviction was entered for entry of an order setting aside the conviction; or

(b) At any time after the lapse of one year from the date of any arrest, if no accusatory instrument was filed, or at any time after an acquittal or a dismissal of the charge, the arrested person may apply to the court that would have jurisdiction over the crime for which the person was arrested, for entry of an order setting aside the record of the arrest. For the purpose of computing the one-year period, time during which the arrested person has secreted himself or herself within or without the state is not included.

(2)(a) A copy of the motion and a full set of the defendant’s fingerprints shall be served upon the office of the prosecuting attorney who prosecuted the crime or violation, or who had authority to prosecute the charge if there was no accusatory instrument filed, and opportunity shall be given to contest the motion. The fingerprint card with the notation "motion for setting aside conviction," or "motion for setting aside arrest record" as the case may be, shall be forwarded to the Department of State Police bureau of criminal identification. Information resulting from the fingerprint search along with the fingerprint card shall be returned to the prosecuting attorney.

(b) When a prosecuting attorney is served with a copy of a motion to set aside a conviction under this section, the prosecuting attorney shall provide a copy of the motion and notice of the hearing date to the victim, if any, of the crime by mailing a copy of the motion and notice to the victim’s last-known address.

(c) When a person makes a motion under subsection (1)(a) of this section, the person must pay a fee of $80. The person shall attach a certified check payable to the Department of State Police in the amount of $80 to the fingerprint card that is served upon the prosecuting attorney. The office of the prosecuting attorney shall forward the check with the fingerprint card to the Department of State Police bureau of criminal identification.

(3) Upon hearing the motion, the court may require the filing of such affidavits and may require the taking of such proofs as it deems proper. The court shall allow the victim to make a statement at the hearing. Except as otherwise provided in subsection (12) of this section, if the court determines that the circumstances and behavior of the applicant from the date of conviction, or from the date of arrest as the case may be, to the date of the hearing on the motion warrant setting aside the conviction, or the arrest record as the case may be, it shall enter an appropriate order that shall state the original arrest charge and the conviction charge, if any and if different from the original, date of charge, submitting agency and disposition. The order shall further state that positive identification has been established by the bureau and further identified as to state bureau number or submitting agency number. Upon the entry of the order, the applicant for purposes of the law shall be deemed not to have been previously convicted, or arrested as the case may be, and the court shall issue an order sealing the record of conviction and other official records in the case, including the records of arrest whether or not the arrest resulted in a further criminal proceeding.

(4) The clerk of the court shall forward a certified copy of the order to such agencies as directed by the court. A certified copy must be sent to the Department of Corrections when the person has been in the custody of the Department of Corrections. Upon entry of the order, the conviction, arrest or other proceeding shall be deemed not to have occurred, and the applicant may answer accordingly any questions relating to its occurrence.

(5) The provisions of subsection (1)(a) of this section apply to a conviction of:

(a) A Class C felony, except for criminal mistreatment in the first degree under ORS 163.205 (Criminal mistreatment in the first degree) when it would constitute child abuse, as defined in ORS 419B.005 (Definitions), or any sex crime.

(b) The crime of possession of the narcotic drug marijuana when that crime was punishable as a felony only.

(c) A crime punishable as either a felony or a misdemeanor, in the discretion of the court, except for:

(A) Any sex crime; and

(B) The following crimes when they would constitute child abuse as defined in ORS 419B.005 (Definitions):

(i) Criminal mistreatment in the first degree under ORS 163.205 (Criminal mistreatment in the first degree); and

(ii) Endangering the welfare of a minor under ORS 163.575 (Endangering the welfare of a minor) (1)(a).

(d) A misdemeanor, including a violation of a municipal ordinance, for which a jail sentence may be imposed, except for endangering the welfare of a minor under ORS 163.575 (Endangering the welfare of a minor) (1)(a) when it would constitute child abuse, as defined in ORS 419B.005 (Definitions), or any sex crime.

(e) A violation, whether under state law or local ordinance.

(f) An offense committed before January 1, 1972, that if committed after that date would be:

(A) A Class C felony, except for any sex crime or for the following crimes when they would constitute child abuse as defined in ORS 419B.005 (Definitions):

(i) Criminal mistreatment in the first degree under ORS 163.205 (Criminal mistreatment in the first degree); and

(ii) Endangering the welfare of a minor under ORS 163.575 (Endangering the welfare of a minor) (1)(a).

(B) A crime punishable as either a felony or a misdemeanor, in the discretion of the court, except for any sex crime or for the following crimes when they would constitute child abuse as defined in ORS 419B.005 (Definitions):

(i) Criminal mistreatment in the first degree under ORS 163.205 (Criminal mistreatment in the first degree); and

(ii) Endangering the welfare of a minor under ORS 163.575 (Endangering the welfare of a minor) (1)(a).

(C) A misdemeanor, except for endangering the welfare of a minor under ORS 163.575 (Endangering the welfare of a minor) (1)(a) when it would constitute child abuse, as defined in ORS 419B.005 (Definitions), or any sex crime.

(D) A violation.

(6) Notwithstanding subsection (5) of this section, the provisions of subsection (1) of this section do not apply to:

(a) A conviction for a state or municipal traffic offense.

(b) A person convicted, within the 10-year period immediately preceding the filing of the motion pursuant to subsection (1) of this section, of any other offense, excluding motor vehicle violations, whether or not the other conviction is for conduct associated with the same criminal episode that caused the arrest or conviction that is sought to be set aside. Notwithstanding subsection (1) of this section, a conviction that has been set aside under this section shall be considered for the purpose of determining whether this paragraph is applicable.

(c) A person who at the time the motion authorized by subsection (1) of this section is pending before the court is under charge of commission of any crime.

(7) Notwithstanding subsection (5) of this section, the provisions of subsection (1)(a) of this section do not apply to criminally negligent homicide under ORS 163.145 (Criminally negligent homicide), when that offense was punishable as a Class C felony.

(8) The provisions of subsection (1)(b) of this section do not apply to:

(a) A person arrested within the three-year period immediately preceding the filing of the motion for any offense, excluding motor vehicle violations, and excluding arrests for conduct associated with the same criminal episode that caused the arrest that is sought to be set aside.

(b) An arrest for driving while under the influence of intoxicants if the charge is dismissed as a result of the person’s successful completion of a diversion agreement described in ORS 813.200 (Notice of availability of diversion).

(9) The provisions of subsection (1) of this section apply to convictions and arrests that occurred before, as well as those that occurred after, September 9, 1971. There is no time limit for making an application.

(10) For purposes of any civil action in which truth is an element of a claim for relief or affirmative defense, the provisions of subsection (3) of this section providing that the conviction, arrest or other proceeding be deemed not to have occurred do not apply and a party may apply to the court for an order requiring disclosure of the official records in the case as may be necessary in the interest of justice.

(11) Upon motion of any prosecutor or defendant in a case involving records sealed under this section, supported by affidavit showing good cause, the court with jurisdiction may order the reopening and disclosure of any records sealed under this section for the limited purpose of assisting the investigation of the movant. However, such an order has no other effect on the orders setting aside the conviction or the arrest record.

(12) Unless the court makes written findings by clear and convincing evidence that granting the motion would not be in the best interests of justice, the court shall grant the motion and enter an order as provided in subsection (3) of this section if the defendant has been convicted of one of the following crimes and is otherwise eligible for relief under this section:

(a) Abandonment of a child, ORS 163.535 (Abandonment of a child).

(b) Attempted assault in the second degree, ORS 163.175 (Assault in the second degree).

(c) Assault in the third degree, ORS 163.165 (Assault in the third degree).

(d) Coercion, ORS 163.275 (Coercion).

(e) Criminal mistreatment in the first degree, ORS 163.205 (Criminal mistreatment in the first degree).

(f) Attempted escape in the first degree, ORS 162.165 (Escape in the first degree).

(g) Incest, ORS 163.525 (Incest), if the victim was at least 18 years of age.

(h) Intimidation in the first degree, ORS 166.165 (Intimidation in the first degree).

(i) Attempted kidnapping in the second degree, ORS 163.225 (Kidnapping in the second degree).

(j) Attempted robbery in the second degree, ORS 164.405 (Robbery in the second degree).

(k) Robbery in the third degree, ORS 164.395 (Robbery in the third degree).

(L) Supplying contraband, ORS 162.185 (Supplying contraband).

(m) Unlawful use of a weapon, ORS 166.220 (Unlawful use of weapon).

(13) As used in this section, "sex crime" has the meaning given that term in ORS 181.594 (Definitions). [1971 c.434 §2; 1973 c.680 §3; 1973 c.689 §1a; 1973 c.836 §265; 1975 c.548 §10; 1975 c.714 §2; 1977 c.286 §1; 1983 c.556 §1; 1983 c.740 §17; 1987 c.320 §31; 1987 c.408 §1; 1987 c.864 §6; 1989 c.774 §1; 1991 c.830 §6; 1993 c.546 §98; 1993 c.664 §2; 1995 c.429 §9; 1995 c.743 §1; 1999 c.79 §1; 2007 c.71 §35; 2009 c.360 §1; 2009 c.560 §1]

Note: Section 27, chapter 659, Oregon Laws 2009, provides:

Sec. 27. (1) In addition to the fee provided in ORS 137.225 (Order setting aside conviction or record of arrest), upon the filing of an application under ORS 137.225 (Order setting aside conviction or record of arrest) (1), the court shall order the defendant to pay a fee of $250 to the court.

(2) This section applies only to applications filed under ORS 137.225 (Order setting aside conviction or record of arrest) (1) on or after October 1, 2009, and before July 1, 2011.

(3) Fees imposed under this section in the circuit court shall be deposited by the clerk of the court in the Judicial System Surcharge Account. Fees imposed in a justice court under this section shall be paid to the county treasurer. Fees imposed in a municipal court under this section shall be paid to the city treasurer.

(4) The collections and revenue management program established under ORS 1.204 (Judicial Department collections and revenue management program) may not be reimbursed under ORS 1.204 (Judicial Department collections and revenue management program) from amounts imposed under this section. [2009 c.659 §27]

Tennessee[edit]

TCA 40-32-101 is the statute and provides some expungements at no cost. TCA 40-32-101(a)(1)(A) All public records of a person who has been charged with a misdemeanor or a felony shall, upon petition by that person to the court having jurisdiction in the previous action, be removed and destroyed without cost to the person, if: The charge has been dismissed, a no true bill was returned by a grand jury, a verdict of not guilty was returned, whether by the judge following a bench trial or by a jury, the person was arrested and released without being charged. TCA 40-32-101(a)(1)(B) A person applying for the expunction of records because the charge or warrant was dismissed in any court as a result of the successful completion of a pretrial diversion program pursuant to §§ 40-15-102 — 40-15-107, shall be charged the appropriate court clerk's fee pursuant to § 8-21-401 for destroying such records. TCA 40-32-101(a)(3) Upon petition by a defendant in the court that entered a nolle prosequi in the defendant's case, the court shall order all public records expunged. TCA 40-32-101(a)(5) All public records concerning an order of protection [ex-parte, exparte] authorized by title 36, chapter 3, part 6, which was successfully defended and denied by the court following a hearing conducted pursuant to § 36-3-605, shall, upon petition by that person to the court denying the order, be removed and destroyed without cost to the person.

Texas[edit]

Texas expungement law[36] allows expungement of arrests which did not lead to a finding of guilt, and class C misdemeanors if the defendant received deferred adjudication, and completed community supervision.[37] If the defendant was found guilty, pleaded guilty, or pleaded no contest to any offense other than a class "C" misdemeanor, it is not eligible for expungement; however, it may be eligible for non-disclosure if deferred adjudication was granted.

Utah[edit]

The Utah Bureau of Criminal Identification has published a pamphlet that provides an overview of Utah's expungement law. The law itself is set forth in Utah Statute 77-18-2. In essence, first degree crimes cannot be expunged. Second degree forceable crimes cannot be expunged. Crimes other than those can.[38]

Washington[edit]

Washington's expungement equivalent is called "vacating a judgment." It allows the court to vacate certain felony convictions which occurred after July 1, 1984.[39] Revised Code of Washington (RCW) Chapter 9.94A.640 allows the court to withdraw the finding of guilt and vacate a misdemeanor or gross misdemeanor.[40] Once vacated, or expunged, the person's criminal record will not include that case. State law gives the person the right to state to anyone, including prospective employers, that the person was not convicted of that offense, after a vacate motion has been granted.

Caveats[edit]

Immigration[edit]

For all practical purposes, there is no such thing as an expungement of a conviction for immigration purposes. In reviewing the character and fitness of an immigrant along the different steps from permanent residency to citizenship, United States Citizenship and Immigration Services looks to see if the petitioner has ever been convicted of a crime.[41] Even if the immigrant was convicted, made restitution, and as part of a plea agreement had the court record expunged, that initial conviction will still appear on the immigrant's record and the immigrant may well find him/herself in deportation proceedings (as was the case of Padilla v. Kentucky (2010)). In Padilla, the U.S. Supreme Court ruled that Padilla has received ineffective assistance of counsel because he had not been warned of the possible immigration consequences of his guilty plea.[42]

Security clearance[edit]

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 DOJ. There is no post-conviction relief available in the federal system, other than a presidential pardon.[43]

See also[edit]

References[edit]

  1. ^ http://scholarship.shu.edu/cgi/viewcontent.cgi?article=1163&context=student_scholarship
  2. ^ "Fresh Start Act of 2011 (2011 – H.R. 2449)". Retrieved 29 March 2017. 
  3. ^ "Page Not Found – U.S. Senator Rand Paul of Kentucky". Retrieved 29 March 2017. 
  4. ^ "Here are three conservative bills the House Judiciary Committee's justice reform initiative should consider – FreedomWorks". Retrieved 29 March 2017. 
  5. ^ a b c Arizona Revised Statutes (ARS) Section 13-907
  6. ^ "Cleaning Your Record – criminal_selfhelp". Retrieved 29 March 2017. 
  7. ^ http://www.cga.ct.gov/2011/pub/chap960a.htm#Sec54-76o.htm
  8. ^ Florida Department of Law Enforcement Seal and Expunge Process
  9. ^ "Statutes & Constitution : 2005–>Ch0943->Section 0585". Online Sunshine. Retrieved 29 March 2017. 
  10. ^ "Statutes & Constitution : 2005–>Ch0943->Section 059". Online Sunshine. Retrieved 29 March 2017. 
  11. ^ Florida Statute 943.0585
  12. ^ "Atlanta Expungment Lawyer | Record-Sealing Process". Atlanta Criminal Lawyers. Retrieved 2016-12-27. 
  13. ^ a b c d e 20 Illinois Compiled Statutes 2630 § 5
  14. ^ Assembly, Indiana General. "Indiana Code 2016 – Indiana General Assembly, 2017 Session". Retrieved 29 March 2017. 
  15. ^ "Expungement Certification Record Expungement". Retrieved 29 March 2017.  line feed character in |title= at position 26 (help)
  16. ^ a b Chapter 610, Revised Statutes of Missouri (R.S.Mo.)
  17. ^ a b Section 311.326, R.S.Mo.
  18. ^ "Section 651:5 Annulment of Criminal Records.". Retrieved 29 March 2017. 
  19. ^ a b N.J.S. 2C:52-2
  20. ^ N.J.S. 2C:52-3
  21. ^ N.J.S. 2C:52-14(f)
  22. ^ N.J.S. 2C:52-6(a)
  23. ^ N.J.S. 2C:52-6b
  24. ^ N.J.S. 2C:52-6(c)
  25. ^ N.J.S. 2C:52-28
  26. ^ Chetson, Damon. "Expungement Laws in North Carolina". 
  27. ^ Ohio Revised Code 2953.32
  28. ^ a b Ohio Revised Code 2953.52
  29. ^ Ohio Revised Code 2953.31
  30. ^ Ohio Revised Code 2953.31 (A)
  31. ^ Ohio Revised Code 2953.36
  32. ^ Id. cf. Ohio Revised Code 2953.36
  33. ^ State v. Dye, 2016-Ohio-5065, 2016 Ohio App. LEXIS 2871 (Ohio Ct. App., Fairfield County July 21, 2016)
  34. ^ State v. Dye, 147 Ohio St. 3d 1436, 2016-Ohio-7677, 63 N.E.3d 155 (Nov. 9, 2016)
  35. ^ "Oklahoma Statutes". Oklahoma Legislature. 
  36. ^ "CODE OF CRIMINAL PROCEDURE CHAPTER 55. EXPUNCTION OF CRIMINAL RECORDS". Retrieved 29 March 2017. 
  37. ^ TCCP Chapter 55
  38. ^ "Home" (PDF). Retrieved 29 March 2017. 
  39. ^ Revised Code of Washington (RCW) Chapter 9.94A.640
  40. ^ RCW Chapter 9.96
  41. ^ Immigration Consequences Manual, chapter 4, prepared by the North Carolina Office of Indigent Defense Services, http://www.ncids.org/Other%20Manuals/Immigration%20Manual/Text.htm
  42. ^ https://www.supremecourt.gov/opinions/09pdf/08-651.pdf
  43. ^ "Expungement – FindLaw". Retrieved 29 March 2017. 

External links[edit]