If you have a felony conviction you know that your criminal record is the ONE thing that stands between you and a brighter future. The only way to resolve this issue once and for all is to have your record sealed or expunged.
Any time a prospective employer or landlord conducts a background check on you, there is a huge risk of getting turned down from your dream job or apartment because they will get access to your arrests or convictions.
Its important to realize that getting your criminal record expunged is a huge challenge. Most of the time, to be successful you need help of a lawyer, or someone who has a lot of knowledge and experience with sealing records.
Lets take a look at what it means to expunge a record, and what it takes to make it happen.
What does it mean to have a criminal record expunged?
Expunging a criminal record means that the court orders for this record to be deleted. That’s right, it basically ceases to exist in the eyes of the law. So, if a judge grants you record expungement, you will never have to worry having to answer “yes” to any crime related questions on any application or during a job interview.
A true expungement means that all copies of the criminal record (those in court and in the county files) are physically destroyed. However, some states actually prohibit the physical destruction of criminal records; instead they seal them from public access.
Different states have various rules and regulations about expunging or sealing criminal records, as well as eligibility criteria for having this done.
There are no federal laws regarding expunging adult criminal record, because federal crimes can not be expunged.
Sealed vs expunged record
Having your criminal record expunged means that it will literally be deleted, as if it never existed. Having it sealed means that it still exists, but it no longer shows up on the public record. This means that a sealed record can still be accessed and reviewed if there is formal court order for this action.
However, similar to expunged records, sealed records should not show up on the background check.
Also, if you have your record sealed, you can honestly answer “no” to all questions on a job or any other application that asks about criminal convictions.
Who is eligible to have their records expunged?
There are a few scenarios where a judge may decide to grant a request to expunge criminal records. As mentioned before, each state has their own set of requirements, so you would need to check with a local court clerk or a lawyer about your specific case. For example, some states, including the state of New York, don’t allow criminal record expungement at all.
All states impose a waiting period that must pass before you can be eligible. This can be either 3, 5 or more years.
1. Records of an arrest
The easiest record to have expunged is one where an arrest took place, but charges were either never pressed, or the matter was cleared up and the suspect was found not guilty. These records still remain as part of the public record and show up in the criminal background check, even though you actually didn’t do anything wrong. However, even having an arrest on your record can seriously damage your chances of getting a good job, an apartment or a bank loan.
2. Having a conviction expunged
If you have an actual conviction, it will be a lot harder to have your record expunged. However, its still possible. In some states, expungement may only be available once you have served out your sentence, including any period of probation.
In general, the more serious the crime, the less likely are the chances of record expungement. In most states, felony convictions as well as sex related crimes are not eligible for expungement.
Here are some circumstances which will increase the chances of having records expunged
– A first time offense
– There are not charges or arrests since the time of the first conviction
– You have served out your probation term on best behavior
– You have gone through a rehabilitation program, community service, etc
– Its a misdemeanor as opposed to a felony conviction
– You were a juvenile at the time of the arrest
3. Certificate of actual innocence
If you were arrested for something, but found not guilty, the best thing to do is to pursue a certificate of actual innocence. Depending on the state, you may be eligible in the following situations:
– prosecutor did not file criminal charges after you were arrested
– jury acquitted you – found you not guilty
– court dismissed your case
Keep in mind, that certain states, have a specific time frame within which you are eligible to apply for this certificate. For example, in California, you need to apply within 2 years of the arrest, and a late application will not be considered.
Ultimately, a certificate of innocence proves your factual innocence, and essentially states that the criminal record should have never existed in the first place.
How to apply for expungement
While its more difficult and time consuming to deal with record expungement on your own, its still possible. You don’t need a lawyer to successfully complete this process.
The first step is to visit your local country criminal court and obtain all necessary paperwork. Ask the clerk to give you an application for a “Motion for Expungement”
Along with this application, you will need to provide other documents (requirements vary by state). Here are the common ones you can anticipate will be needed:
Certificate of eligibility (from your state’s probation department)
Acceptance of service
Consent and waiver of hearing
Statements from victim and prosecutor
Findings of fact and conclusions of law
Once you have all the paperwork, an officer from your state’s probation department will work with you to create a report petitioning for expungement. This report will show whether or not the crime or incident in question was an isolated one time event, and how you have behaved since the time of conviction. The judge will use this report to rule whether or not you are eligible.
You will also need to pay a filing fee for the paperwork. This fee varies by state, but is on average $110-350.
Once you file all the paperwork, it will take some time for the court to process it and set the date for your hearing. In some cases this waiting period can be several weeks or more.
You should be prepared that a prosecutor may challenge your motion for expungement by filing an objection before the hearing. This is where a lawyer can help you by arguing your case for you. However, many people choose to go through this process alone, because getting a lawyer is too expensive.
Reasons for denial
In some cases, a judge may deny your petition for record expungement. Common reasons why this happens are:
– You have a felony conviction or a sexual offense
– If you committed a federal crime, it would not be eligible for expungement.
– Your court case is still open
– You didn’t meet the necessary waiting period before applying
– There are outstanding fines or dues that have not been paid
– You didn’t meet the terms of probation
– You have a pending arrest or another criminal conviction
How much does it cost to hire a lawyer?
Many people don’t have the skills and the knowledge required to complete all the legal paperwork for expungement without making any mistakes. If your application has errors or omissions, this may significantly delay your hearing, or can lead to a flat out rejection of your petition. Its important to note that in case your petition is denied, re-applying is very expensive and challenging.
This is why many people choose to hire a lawyer to help them through this process. If you have a single criminal charge that needs to be expunged attorney fees can be around $900-1,500, depending on the state, nature of the crime, experience of the lawyer, and other details. However, if there are several charges, or if the case is more complex, the cost can be as high as $2,300-4,500+ If you are looking for attorney help with JUST the paperwork, the fees can be around $400-600.
If you choose to hire and experienced attorney to represent you, here is what you can expect from them:
– Determine if you qualify to have your record sealed or expunged
– Answer all your questions and explain everything instead of you spending hours looking for info on line
– Obtain all required documents
– File for Certificate of Eligibility on your behalf
– Prepare paperwork for petitions, affidavits, and orders.
– Serve all required agencies.
– File all necessary paperwork with the court
– Represent you at the required hearings
In 2019, about 1/3 of Americans have some type of criminal record. An estimated 3/4 of ex-offenders who are released from prison are arrested again within the next five years. The main reason is failure to reintegrate back into society, find a job, housing, etc. Thus, having a criminal record presents a huge stumbling block for people are looking for a second chance in life: employment, affordable housing, business and educational opportunities.
According to Kentucky Senator, Rand Paul: “The biggest impediment to civil rights and employment in our country is a criminal record”. This is why, on March 9, 2015, Senator Paul together with Senator Cory Booker of New Jersey introduced the Redeem Act to Congress.
The Redeem Act would allow for the following:
– Federal pathway for adult ex-offenders to petition for expungment of non-violent crimes
– Automatically expunge none-violent juvenile crimes if committed before the age of 15
– Automatically seal none-violent juveniles offenses committed after the age of 15
– Offer incentive to states to raise the legal age of trying someone as an adult from 16 or 17 to 18 years old.
– Ban the widespread use of room confinement (solitary confinement) for juveniles
– Lift the federal ban on obtaining TANF and SNAP benefits by adults charged with drug-related crimes
– Asks for improvement on the accuracy and completeness of criminal background checks conducted by the FBI for private employers.
Does an expunged record show up on the background check?
Having an expunged record show up on a background check is extremely rare. However, it does happen to some people. The reason is that sometimes copies of a criminal record continue to exist in certain private or public databases.
If an agency doing the background check happens to have access to such a database, they will uncover your expunged record. If an employer denies you a job based on this discovery, you have a right to fight this, because LEGALLY, your record no longer exists.
What you need to do to prevent this from happening ever again is go to a judge and request two documents:
1. certificate of disposition
2. a record of expungement
Then you need to give both to the background checking agency. In turn, its their responsibility to verify the documents with the judge and to update their background report. The agency will also send the documents to the county, so that they in turn can update their records by deleting your criminal background.
Which agencies can see sealed criminal records?
Even if you have had your record sealed or expunged, and the general public no longer has access to it, certain agencies have to right to see your records under special circumstances.
Agencies that have access to sealed records:
– Local police department / sheriff’s office
– State law enforcement agencies, such a Highway Patrol
– Federal law enforcement agencies, such as FBI, DEA, CIA, Homeland Security, etc
– State Attorney or US Attorney’s offices
– The US Military and its branches
When are you required to disclose that you have an expunged record?
There are certain careers and occupations where an applicant is required by law to voluntarily disclose that they have a sealed criminal record. These may vary by state, but here are the agencies with which you must share this information when applying for a job or certification
– Working as a police office or in corrections
– Applying for the BAR exam to become licensed as a lawyer
– Enlisting in the military
– Applying for employment or licensing with the Department of Education, any district school board, charter, private, parochial school or university.
– Seeking employment at a local government agency that licenses child care facilities
– Applying for a job or license with the:
Department of Children and Family Services
Agency for Health Care Administration
Agency for Persons with Disabilities
Department of Juvenile Justice
Be aware of social media
Its important to keep in mind that today there can be many traces left of a past crime on various social media platforms. Even if there is no record of your crime that turns up through a standard background check, many employers go through the trouble of conducting an online search, to see what it turns up about a prospective candidate. Evidence of your past crimes may turn up in the most unexpected places on the web.
Still, legally an employer has no right to deny you a job (if you are qualified candidate) based on information that surfaces from the internet. You can also explain and show proof that your record has been expunged.