What is an Expungement?
* This is general information about expungement that is not accurate in all states. Please go to the state page where your record is located.
Expungement is a legal procedure designed to destroy or remove from view all or part of the records of a case. The exact definition of expungement, which is usually defined by statute, can vary greatly by state. To get state specific expungement information click here and choose your state.
An expungement can also mean that the adverse finding or guilt is removed by withdrawing, vacating, annulling or setting aside the finding of guilt, thereby expunging the conviction from the records (and often lifting some or all of the legal ramifications of the original adverse finding) without otherwise affecting access to the records.
In many jurisdictions the expunged records can still be considered by courts in future cases or used by law enforcement and government agencies for limited purposes. The quickest and easiest way to see if your case is eligible for expungement in your state is to take our free expungement eligibility test.
Expungement laws are typically enacted to accomplish public policy goals that can include allowing those who demonstrate rehabilitation to integrate back into society, providing incentives for rehabilitation, increasing incentives for plea bargains to be accepted, and keeping the effects of punishment proportional with the offense. Expungement laws must balance the public policy goals against the public's need to access criminal history.
The need for expungement has greatly increased in the last decade because of the dramatic increase in the use of criminal background checks. For instance, studies showed that about 30 percent of employers conducted criminal background checks in 1994. That number increased to 84 percent by 2004.
The increase in criminal background checks has been driven by two things. First, the terrorist attacks of 9/11 dramatically heightened concerns over security, which increased criminal background checks for everything from employment to international travel. Second, advances in computers, software and the internet have made it easier for companies to gather criminal records and distribute them to consumers at a very affordable price.
Because of the increased demand for criminal background checks and the better quality of data at a lower price, the harmful consequences of a criminal record can now last a lifetime, unless the records are expunged. Many people contend that this is an injustice as it is now consequence of the sentence that was not contemplated or intended at the time of sentencing.
To address the changed consequences, many states have recently made attempts to modernize their expungement laws, including states such as Oklahoma, Utah, Nebraska, Alabama, New York, and Rhode Island. There have been various federal laws proposed to expand expungement at the federal level, but none have made it out of committee.
How do I expunge my conviction?
* This is general information about expungement that is not accurate in all states. Please go to the state page where your record is located.
The first step is to determine if you are eligible for expungement in your state. The quickest and easiest way to find out if you qualify for a record expungement is to take this free online expungement eligibility test or call (877) 573-7273 for a free phone consultation.
The process by which to expunge a criminal record varies from state to state. However, there are certain elements that remain the same in all expungement proceedings.
Although each state has its own procedures and requirements for expungement, all require the person petitioning for expungement to have completed their probation and paid all fines, taken all court appointed classes, remained in good standing and must have not been convicted of a second crime during the rehabilitation period.
The next step in applying to have your record expunged (beyond contacting a licensed attorney) is to find out as much information about the original case as possible. This may mean calling the Clerk of the Superior Court for the county in which you were convicted and asking them to send you a copy of your conviction from that county.
The next step varies from state to state and depends on the complexity of the conviction(s). Each conviction must have a separate filing to be expunged. At this point, the person wishing to have an expunged record must draft and file a motion asking to reopen the case and change the finding to "not guilty."
Local rules may require you to serve a copy to the District Attorney, and file a proof of service with the court. After the petition has been filed, you must show up for the hearing date. However, having a proficient attorney to argue your case in court and file the appropriate motions will allow your case to proceed smoothly and with a much better chance of success for expungement.
Excellent, licensed lawyers, will often provide the necessary legal research for your case, prepare and file the required motions, and argue your case in court. Higbee & Associates also provides its clients unique access to an online case management system where they are able to track the progress made on their court cases.
Laws and conditions in which a record can be sealed or expunged varies by case and by state. To fully understand your specific situation and options for record sealing or expungement it is suggested that you contact us so that we can adequately provide professional legal assistance on your case.
How long does expungement take?
* This is general information about expungement that is not accurate in all states. Please go to the state page where your record is located.
Expungement, the process by which a criminal record is re-opened and changed from "convicted" to "dismissed without guilt," varies from state to state. In order to have a record expunged in most states, it is often required to be a first-time offense. Clearing a criminal record cannot happen overnight, or even right after the conviction. Most often there is a period before a petition can be made to the courts to have an expungement.
In order to be eligible to dismiss a criminal conviction, probation must have been completed, or if no probation has been given, all fines and restitution must have been taken care of. Sometimes there is also a wait period, depending on the state, of up to five years after the probation has been completed before being eligible for expungement. Many judges observe this waiting period before the petition can be filed as an indication of rehabilitation.
The procedure generally involves a petition to the court, which includes an affidavit and motion seeking the relief, and then it will be reviewed by a judge. However, although the process seems as simple as filing a single application and handing it over to the court, it is often much more complicated. In certain cases, the papers must be served to a District Attorney, or legal documentation must be prepared to be signed by a judge. If done incorrectly, the process can take much longer than need be or can possibly even be denied because improper procedure was followed. Further still in some cases, a court hearing is required. Expunging a criminal record may take months, depending on the background circumstances surrounding the conviction. The courts perform work on a first come, first serve basis. So the sooner a petition is filed, the sooner it will be reviewed. Since the timing of the process varies from state to state and by case, a general estimate of the time it takes to have a criminal record expunged can be anywhere from 2-6 months.
Higbee & Associates have licensed attorneys who evaluate each case, perform the necessary case research, derive the necessary supporting evidence, deliver the motion to court, and argue the case in court if a hearing is required. The attorneys of Higbee & Associates handle all matters diligently and efficiently to ensure that clients who need an expungement are well taken care of.
A unique feature that they offer provides each client with access to an online database to ensure that each client is kept updated on the status of their expungement, and can easily track the the updates on their case so that they are continually aware of its current status.
Who can see that my record has been expunged?
* This is general information about expungement that is not accurate in all states. Please go to the state page where your record is located.
After expungement, when a criminal background check is done that searches for convictions, the record will NOT show up because it is no longer a conviction. That being said, the arrest still remains on the record, as there is a difference between expungement and sealing an arrest.
The law varies from state to state, but generally, you do not have to disclose your expunged conviction when applying for a job, so when applying to a school or for a new job, a person with an expunged criminal conviction can honestly answer "no" when asked if they have any previous convictions.
In an Internet-reliant age, anyone with a credit card can perform a background check online on anyone they wish. With a background check, if your record has been expunged, the criminal conviction will not be apparent even if a previous arrest might be. It will simply show as a record of arrest with no conviction. Although the criminal record has been expunged, the remaining arrest could also prove as a hindrance in landing a job.
Once the expungement is granted, the next step involves the courts updating their records so that sites such as Backgroundchecks.com and Experian.com also have correct records and change their information so that it shows up as dismissed, accordingly. Generally, courts update their records within 48 hours. That being said, the Department of Justice usually take an additional 30 days, and the federal agencies (such as the FBI) take upwards of an additional 30 days on top of that.
On average, it takes about 40-60 days for the effects of an expunged record to be updated in law systems. However, some law firms offer the option of removing or updating the expunged information from background checks online. Higbee & Associates offers a service to remove the expunged records from over 600 private databases, combined with a free background check to verify the cleared record.
Why should I get an expungement instead of a pardon?
* This is general information about expungement that is not accurate in all states. Please go to the state page where your record is located.
Generally, each state's governor or a pardon board of high-ranking state officials has the power to grant a pardon under state criminal law. However, only about 1 in 5000 are granted. Pardon procedures vary from state to state, but it is always free to apply for a pardon. Like an expungement, there is also a wait period from the initial arrest or conviction or parole and the application for a pardon. The wait period to apply for a pardon is commonly 5 years, but may vary based upon state. [source]
There are two types of pardons, conditional and unconditional pardons. An unconditional pardon fully restores a person's rights and innocence as if they had never committed the crime. A conditional pardon, however, comes with conditions before it may become effective, such as serving a sentence or completing parole. Pardons usually are associated with guilt, such that a pardon does not imply innocence and is merely a forgiveness of the offense. This should be viewed as an alternative when expungement is not possible due to ineligibility or any other exigent circumstances.
In some states where expungement is not an option, such as Alabama or Maine, a pardon is the only way to clear a criminal record. However, the speed and efficiency of garnering an expungement instead of a pardon, where applicable, is much quicker and easier. Also, obtaining an expungement is a way to reinstate most rights.
Ending probation early to expedite expungement eligibility
* This is general information about expungement that is not accurate in all states. Please go to the state page where your record is located.
Before becoming eligible to expunge a criminal conviction from a record, probation must be either completed or terminated. Some states will allow you to file for early termination of probation. In order to apply to end probation early, all fines and court costs must be paid and you must have completed all court-ordered classes. The request to end probation early can be filed at any time, but your best chance at winning the motion is when you have served at least fifty percent of the probationary term.
The court often considers such factors as criminal history, age, seriousness of offense, compliance with other terms of sentence, the need for relief, as well as the amount of time spent on probation, when reviewing a request for early termination of probation. The process typically takes anywhere from 1 to 3 months, depending on the workload of the court and the state in which the application is filed.
While you may file the motion without the help of an attorney, a licensed attorney is recommended when dealing with applying to end probation early. Some cases are more complex than others, and there are a large number of limiting factors that the courts deliberate on when considering each case.
Because there are so many factors that influence the court's decision, if you apply for early probation termination without a licensed attorney and are denied, it may seriously negatively affect any future applications to end probation early. Certain procedures, such as applying for a pardon, require a form that is already created by the court. However, probation termination is not one of these procedures. Instead, a formal motion must be prepared and delivered to the courts.
Difference between expungement and sealing an arrest
* This is general information about expungement that is not accurate in all states. Please go to the state page where your record is located.
Sealing an arrest record involves completely removing a criminal arrest from the public. The record of the arrest, for all intents and purposes, is technically "destroyed," and it is only available to law enforcement. With an expungement, the record will reflect a dismissed case with a finding of "not guilty," but still show the original arrest and charge. Sealed records can be opened if an individual has applied for a professional license, such as a medical or law license. The law and terminology for sealing or expunging a record varies from state to state.
Some felony and misdemeanor offenses that can be expunged include:
- Petty theft
- Grand theft
- Possession of marijuana (or other controlled substances)
- Shoplifting
- DUI
- Domestic Violence (DV)
- Assault, battery, assault with a deadly weapon
- Receiving stolen property
- Robbery
- Burglary
- Prostitution
- Indecent exposure
- and many more...
Find out if you qualify for a record expungement by taking our free expungement eligibility test or call us at (877) 573-7273.
Didn't find the answer you were looking for? Check out our Free Expungement Information and Education page.
About The Author
Mathew Higbee is a recognized authority on criminal record clearing. He has worked on more than 2,000 expungement cases in 6 states. He successfully argued the published case of People v. McLernon which helped define California's expungement law.
Mathew Higbee is licensed to practice law in California, Michigan, Minnesota, Nevada, Utah and Washington.
We are currently expunging records in Arizona, California, Florida, Illinois, Indiana, Michigan, Minnesota, Nevada, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Tennessee, Texas, Utah, and Washington with more states coming soon. We also offer our other record clearing services nationwide.
