How To Expunge A Criminal Record
April 17, 2017
In the legal world, an “expungement” is the process by which a record of criminal arrest or conviction is destroyed or sealed from the state or federal record. Getting an expungement can be very valuable, opening up many opportunities and avenues of success that otherwise would be unattainable. An expungement order issued by a court allows the recipient to act as though the criminal offense never occurred. The benefits of an expungement are many, but one of the greatest benefit is that the record is removed from the public and cannot be seen by employers, landlords, and others. It is important to note that expungements do not “forgive” the underlying offense completely, but it does at least remove the records of the offense so that one can move on in life.
One of the most frequently asked questions regarding expungements is the following: How do I expunge my record? The short answer is that you obtain your criminal records, draft and file the necessary petitions with the original sentencing court, and prepare for a hearing on the matter. The process and meaning of “expungement” varies depending on the state, but the general outline is essentially the same. For example, in some states such as Michigan or Illinois, the court removes the record of the crime from public inspection. In other states like California, the record is not completely removed from public view and instead it is labeled as “dismissed.”
Finally, some states, like Ohio, simply have a “record seal,” which is basically their version of an expungement, and it accomplishes a similar goal. In very few cases does an expungement completely destroy the physical record, but this can occur in certain states like Kentucky which offers a true misdemeanor or felony expungement. This article will examine the main points of expunging a record and how one can work toward removing a criminal record. For more information on the difference between an expungement and a record seal, see our recent blog post on the topic.
Step 1: Request your criminal record
The first and perhaps the most important step is requesting and obtaining your criminal record. If you already have records saved from your criminal matter, then you can obviously skip this step. If you have a record limited to one or two offenses from just one or two counties, you can start looking for your records by checking the website of the sentencing court. Many courts have online databases that you can easily search by entering your first and last name. Most of these searches can be done for free, but other times there is a fee to submit a background check. If the court clerk does not offer this web search, you can call the clerk to determine how to submit a record request. Usually, it involves submitting some sort of formal request by fax or mail and paying a fee for document copies.
Typically, you want to request copies of the following:
- Complaint information
- Case summary
- Probable cause affidavit
- Grand jury indictment (if your state has grand jury proceedings)
- Judgement and sentencing information/final disposition
The final disposition of a case is the best place to view a criminal record because it is the final settlement of a matter and references the decision rendered by the court.
If you have a more extensive criminal record, or else are unsure of where your charges originated, getting a fingerprint background check may be a better option. This service is usually offered by police departments, but it can vary depending on the state or county. To get a statewide background check, you may call your local police/state police department and ask about this service. You can also request a copy of your criminal record maintained by the FBI. To obtain your FBI criminal report, you may either request it directly from the FBI, or use an FBI-approved Channeler. For more information, see the FBI website on how to request a copy of your Identity History Summary Check.
Step 2: Determine your eligibility
This is a crucial step in the expungement process, and one in which can be very difficult without the assistance of an experienced attorney. Every state’s expungement statute is different, and there are specific requirements that must be met in order to be eligible. Once you have your full criminal record, examine the state’s laws regarding which offenses qualify for expungement. In most cases, there are limitations to how many convictions can be on your record before you are deemed ineligible under the law. For example, in Ohio, you may not have more than two misdemeanor convictions, or one misdemeanor and one felony conviction. Still, there are certain offenses that can never be expunged, such as violent offenses, sexual offenses, and driving under the influence.
Additionally, there is almost always a time requirement that must be met to expunge a record. Usually, you can petition to get an arrest record or non-conviction (dismissed) case expunged at any time. However, in Ohio, you must wait one year after full discharge to apply to have a record sealed. For felony convictions, you must wait three years before applying. Therefore, if you are sentenced to probation, you must wait until the time period ends beginning on the date that you completed your probation. Still, determining eligibility is a difficult step to correctly accomplish without an attorney’s assistance. Some state statutes can cross-reference other statutes, and without the knowledge of how to properly conduct legal research, mistakes can be easily made. You could end up wasting a great deal of time and money filing for an expungement when you may not even be eligible in the first place. Unfortunately, mistakes like these are made all the time.
Step 3: File a petition for expungement
Once you have determined that you are eligible, you are ready to begin drafting your petition to expunge a criminal record. Again, every state, and even certain counties within a state, has its own procedures and forms for expungements. In some states like Florida, you will need to get a certificate of eligibility, a set of fingerprints, and a certified copy of the disposition of the case. Other states require signed affidavits to be submitted along with the petition. Just like any other step in the expungement process, it is critical that everything be done correctly. Mistakes can lead to petitions being sent back or denied by the court, which would just waste more time and expense.
Generally, the process of petitioning for an expungement consists of filling out background information, providing details about your criminal history, and affirming to the court that you are an eligible individual under the law. This step emphasizes why it is important to get complete and accurate criminal records first, as all those details are needed in filling out a petition. Technically, you may draft and file a petition for the court on your own behalf, acting as a pro se petitioner. However, it is highly recommended that you seek a law firm with experienced attorneys to assist in this step. Some states have restrictions on how many attempts you can make at an expungement, and so it is crucial that it be done correctly the first time around.
Once your petition is drafted with all the information that the court requires, you are ready to file it with the court. You may contact the court clerk first to confirm that you have the correct filing fee, number of copies, etc. Once you have everything ready, send it via mail (or deliver in-person/e-file) to the appropriate court clerk. It is recommended to include a self-addressed stamped envelope for any return correspondence from the clerk. For an example of the process and forms for expungement, you can view a criminal and traffic expungement and sealing packet on the Cook County Illinois Clerk’s website.
Step 4: Prepare for and attend expungement hearing
After the judge examines your expungement petition, the court usually sets a date for a hearing on the matter. Once again, this step will vary depending on the state. Yet, expungement hearings are commonly held so the court has a chance to hear the petitioner’s argument that their criminal record should be expunged or sealed. If you believe that you may not be able to attend your hearing, contact the clerk and inform them of this. Occasionally they will let the hearing proceed without your presence (might have to submit additional affidavit). In some cases, a hearing might not be held at all. If you believe you cannot attend the hearing, be sure that your reason is very credible (employment conflict, disability, etc.).
That said, it is highly recommended that you attend the expungement hearing. If you are attempting to expunge your record without a lawyer, it is even more crucial, as the hearing is a opportunity to put a face behind your case. Alternatively, having a lawyer represent you at the hearing can be very beneficial for several reasons. This way, you have someone that understands the process and who will work diligently to ensure your best chance of success. Either way, be sure to dress appropriately at the court hearing, and to present yourself respectfully to the court.
The hearing will usually end in three ways: 1) the court requires further information or payment, 2) the expungement petition is granted and an order is issued, 3) the expungement petition is denied.
Step 5: Keep a record of the outcome of the case
If your expungement petition is granted, and the court issues a legal order removing the criminal record, be sure to keep copies of the court’s order. Since the files will be either completely sealed or destroyed, it is important to have the legal document which states that the record was expunged. Or, if your expungement is denied, it is good to keep that record to examine why you received the denial and/or what went wrong. If your case is denied because of error, it may or may not be eligible for re-submission. This is certainly something that should be handled by an attorney. If your case is granted, then you may enjoy some peace of mind knowing that your criminal record is finally a thing of the past.
Step 6: Enforce your expungement
If granted an expungement order by the court, you have the legal authority to remove such a record from any (with few exceptions) background search database, whether public or private. There are countless websites that offer criminal background checks, and oftentimes they do not always have correct and up-to-date information on individuals. Once these companies are put on notice of the court order, they are required to correct their records. This is a key step that is often overlooked, so be sure to seek help to ensure your record is removed from the public.
For all expungement services, including expedited expungement enforcement, it is best to consult a law firm with experienced attorneys. The entire expungement process can be fairly complex, especially when dealing with different laws and ensuring the proper restoration of civil rights. In some cases, an expungement can even restore an individual’s firearm rights after a criminal conviction. Our law firm is gladly available to assist you through this process. Seeking an expungement can take some time to accomplish, so call us to start taking the necessary steps to remove your criminal record.
On September 2, 2021, the Illinois Supreme Court issued its long-awaited decision on Evans v. Cook County State’s Attorney. The decision resolved two questions that have been causing delays in the lower courts of Illinois in matters of firearm rights restoration.Read More
If you have a criminal record, you could be prohibited from buying a gun. The National Instant Criminal Background Check System (NICS) is the federal system that federal firearms licensees (FFL) such as gun shop owners, pawn shop owners, and retailers use to determine whether a person is legally permitted to purchase a firearm.Read More