Expungement

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 may include one or more of the following:[4]

• 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:[4]

• Murder
• Felonies and first degree misdemeanors in which the victim is under 18 years of age
• Rape
• Sexual battery
• Corruption of a minor
• Sexual imposition
• Obscenity or pornography involving a minor
• Serious weapons charges

Most jurisdictions have laws that allow - and in some states 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.[5]

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.[6]

Procedures for obtaining an expungement are different in each state, but tend to follow a similar process:[7]

• The petitioner verifies his or her eligibility for expungement under state law;
• The petitioner prepares a petition for expungement, often using a standard petition form;
• The petitioner files the petition with the court where the conviction occurred, and serves copies of the petition on other interested parties such as the prosecutor's office;
• The court holds a hearing on the petition to verify that the petitioner is eligible for expungement and that the grant of expungement is proper;
• The court issues an order either granting or denying the petition.

There is no post-conviction relief available in the federal system, other than a presidential pardon.[8]

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".

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.

A criminal record can only be expunged by the jurisdiction in which it was created. The federal government cannot order the expungement of state criminal records. States cannot order the expungement of records from other states or jurisdictions.

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 often disclose that you have an expunged conviction. Failure to disclose an expunged criminal charge may result in denial of a license or denial of a security clearance by the Department of Justice. Some criminal convictions may warrant automatic denials of licensure, whether expunged or not.

One of the major benefits for the individual 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 may restore gun rights in some states but will not be sufficient to restore firearms rights in others. Seeking restoration of firearm rights may requires that the petitioner specifically request restoration of those rights, or may require that the petitioner obtain a pardon that fully restores his or her civil rights.

California's expungement law permits someone convicted of a crime to file a Petition for Dismissal[9] with the court to re-open the case, set aside the plea, and dismiss the case.[10] 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.[10] 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.[10] A successful expungement will not erase the criminal record, but rather the finding of guilt will be changed to a dismissal.[10] 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.[10] 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.

For persons who serve sentences in the state prison system (felons), they must apply to the Superior Court for a Certificate of Rehabilitation (CR).[11] 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.[12] and a request for a pardon is automatically sent to the governor.[13]

Juvenile criminal court records remain unless the individual petitions to have them sealed. This may be done when they reach their 18th birthday,[14] even though some states provide for automatic expungement of certain juvenile records regardless of age.

There is not much that can be done to remove or conceal a driving under the influence record, but in the state of California, it can be expunged. California Penal Code 1203.4[15] 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.

In states like California, state laws allow an individual to reduce a "wobbler" offense[16] 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.