WASHINGTON, February 2, 2014 – A criminal record can pose problems for you later in life. Arrests, investigations, and even some minor convictions may be eligible to be removed from your “record” based on varying state laws. The process is called expungement. Literally, the term describes the removal of records from public inspection.
An example involves a woman who, over 30 years ago, had been convicted of a shoplifting offense. She lamented that she was “young and stupid” at the time. Over the intervening years, that early conviction haunted her and made her feel ashamed. The fact that her conviction was recently expunged was a great relief to her, and she says she can now live her life without the lingering embarrassment caused by her past.
Brushes with the law can indeed haunt you. Employers looking into your background can find convictions. School admissions committees, foster care agencies and adoption reviewers can even find arrest records. Any of these could ruin a career.
Here is Virginia’s statute on this matter:
The General Assembly finds that arrest records can be a hindrance to an innocent citizen’s ability to obtain employment, and education, and to obtain credit. It further finds that the police and court records of those of its citizens who have been absolutely pardoned for crimes for which they have been unjustly convicted can also be a hindrance. This chapter is intended to protect such persons from the unwarranted damage which may occur as a result of being arrested and convicted.
In Virginia, in order to be eligible for an expungement, you must have been found “not guilty” by a judge or jury; or the prosecutor must have effectively dismissed your case (“nolle prosequi”); or your case must have been dismissed by what is known as an “accord and satisfaction.” In many minor types of cases regarded as “minor,” following a period of time set by the court, if you have met all the necessary conditions, the court will dismiss the charge against you. You may then petition for expungement. Examples of offenses where this type of arrangement is found today include possession of marijuana, domestic or simple assault, and shoplifting.
Many states have laws that allow or even require juvenile records to be expunged once the child involved reaches a certain age. In some cases, the records are actually destroyed, while in other cases they are “sealed” or hidden from public view. These laws enable juveniles, usually when they reach age 18, to start over with a “clean slate,” thus shielding them from the negative effects of having a criminal record.
The term “sealing” is often used interchangeably with expungement. The difference is that sealing involves hiding criminal records from public view, whereas expunging usually means that these records are completely, physically destroyed. When records have been expunged but not physically destroyed, they remain available for law enforcement.
Note that an expungement is not a pardon. A pardon is an act of clemency granted by your state’s Governor wherein, by Order, you are absolved of the guilt for your criminal act. You can sometimes apply for an expungement after a pardon.
Every state has very specific procedures for removing criminal convictions from your record. Some states do not allow expungement except within very narrow circumstances. By researching the requirements (type in “expungement” followed by your state in any search engine browser), you can learn how the process can be accomplished in your state without the assistance of an attorney. The process is relatively inexpensive.
Locally, Maryland has “easier” or less complex standards for expungement than Virginia. Under Maryland Law, except for a limited number of minor common nuisance crimes, “guilty” convictions are not eligible for expungement. In Virginia, expungement is not available at all if you have actually been found guilty of any offense. The theory behind this is that expungement is an option available only to innocent persons. Read on, however, as I offer you some advice on what to do in either state.
In Maryland, you may apply (petition) for an expungement, or removal of records, from Motor Vehicle Administration files, from police files, and from court records. Here is a list of the circumstances under which you can apply for expungement of court files in Maryland:
1. If you have been arrested and charged with a crime, including a traffic violation for which a term of imprisonment may have been imposed.
2. If you have been charged with a civil offense or infraction as a substitute for a criminal charge.
3. You were found not guilty.
4. You were found guilty of certain nuisance crimes.
5. The charge was dismissed.
6. The charge resulted in probation before judgment (excluding charges of driving while under the influence or driving while impaired).
7. The State’s Attorney did not prosecute (called a “nolle prosequi)” your charge.
8. The Court indefinitely postponed your case (called a “stet”).
9. Your case was compromised (settled).
10. You were convicted of only one non-violent criminal act, and then you were granted a full and unconditional pardon by the Governor.
An expungement request can be denied. If the time period required by law has not been met, your request will be turned down. Additionally, most states will deny such requests if you have more than one criminal conviction, if you have previously expunged a conviction or arrest, if an arrest is pending, if you are a registered sex offender or have been convicted of any sexual offense, and finally, if court records reflect that the case you are concerned with is still open.
The time when you can begin the process of applying for an expungement will differ from state to state. Maryland expungement petitions usually cannot be filed until the later of three years after the conviction or completion of the sentence, including probation.
If you are arrested for a minor offense, attempt to secure a resolution of the case that does not involve a plea of guilty. Attempt to resolve the case so that the disposition of the matter is postponed, subject to dismissal at a later time if you “behave” until then. When this type of resolution is secured, your chances for getting the matter expunged later are much improved.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is available to speak to your group on numerous legal topics.