A criminal record has a tendency to lie dormant until you need something important. Like a good job. Then, because many top employers these days do background checks on potential employees, it rears its ugly head and torpedos your hopes and dreams.
What many people aren’t aware of is that convictions are not the only thing that can wind up on their criminal record. In most states, any charges that were ever filed against you, even if you were later fully acquitted, will show up during a background check to cast doubts about your character.
For this reason and more many people desire to have their records expunged. Some are successful while others are not.
What is Expungement?
Expungement is the act of having your record of encounters with the law (remember, they don’t always have to be convictions) destroyed or sealed. In the past, the term quite literally meant the record was destroyed.
Today, however, it may mean destroyed or it may mean the record has been sealed and access limited.
Are There Uniform Standards for Expunging Records?
Almost every state allows for expungement or sealing of records although they tend to go about it in different ways. Some are very tight-fisted indeed when it comes to handing out this type of official forgiveness. For example:
- North Carolina only allows for one adult expungement per lifetime.
- Georgia allows for what it calls “record restriction” which is not expungement but does put restrictions on who can view what information.
- Nevada does not allow any records to be expunged, that is, destroyed. Although they do allow some records to be sealed.
- Maine also does not allow for expungement and only allows juvenile records to be sealed.
Benefits of Expungement
- In many states, once criminal records have been expunged or sealed the person whose records they were is allowed by law to answer “no” when asked if he’s ever been convicted of a criminal offense.
- Also, whereas in the past someone may have lost a job solely because they had some minor conviction on their record, once that conviction is expunged or sealed it won’t come up anymore when a potential employer does a background check on them.
There are cases however when even an expunged record might still come back to haunt someone. Such as if they get arrested for another crime after their prior was expunged or they apply for a job that requires a security clearance.
Who is Eligible to Have Their Records Expunged?
Most states today offer some form of an official cleansing of old criminal records although only a relative handful actually expunge those records. That is, destroy them. The rest engage in various levels of record sealing. But even then they won’t do so unless you officially request it and the offense you wish sealed meets certain requirements. Typically a state will not expunge or seal records having to do with:
- Sexual offenses whether committed as a minor or adult.
- Murder, attempted murder or manslaughter convictions.
- Some states will neither expunge nor seal drunk driving convictions.
- Arson, terrorism, kidnapping, domestic violence and drug trafficking are also typically ineligible for expungement.
As we mentioned earlier it is not only convictions or guilty pleas that show up on your criminal history in many states. Often times a person who thought they had a perfectly clean record will be surprised when they are rejected for a job because of an arrest that happened years before related to a charge that was later dismissed.
Both the US and other countries allow for not guilty findings, acquittals, dismissals, simple arrests without charges and more to be a part of a person’s “criminal” history, even if they were never convicted of a crime. If you think that’s not fair you’re not alone but there is something you can do about it.
The “Certificate of Actual Innocence”
Those who have been arrested but never charged, had charges dropped or were found not guilty of charges against them may apply for a Certificate of Actual Innocence or CAI, (sometimes called a petition for factual innocence) in addition to requesting expungement or sealing of those records. What’s the point of obtaining a CAI?
- The CAI is considered by many in the legal profession to be the icing on the expungement cake, stating as it does that a person never should have been arrested to begin with.
- CAIs are particularly useful for people who were arrested as a result of mistaken identity or who were framed for a crime.
- The CAI can be shown to an employer or anyone else as official proof that the state recognizes the person’s innocence.
Keep in mind not every state is willing to hand out CAIs and in some states, even if you were convicted of a crime and that conviction was later overturned, you will not be able to obtain a CAI for it.
Expunging Juvenile Records
The expunging of records is most common when it comes to juvenile offenders. While the practice is controversial, and resistance has been building to it in recent years, many states still automatically expunge the record of juvenile offenders when they turn 18. While other states wait until the person turns 21 or even 24, as is the case in Florida.
There are also cases where a person’s juvenile record – or at least aspects of it – may not be expunged under any circumstances. Such as if:
- The person is a repeat offender.
- They have been found guilty of a sex-related crime.
- They have pled guilty to a sex-related offense.
- They have a history of violent offenses.
- They have been found guilty of other crimes that would be considered felonies if they were adults.
Petitioning to have your record expunged can open the doors to a brighter tomorrow. But never assume that having your record expunged or even sealed is a given.
Different states have different criteria they apply when it comes to expungement and some states are very unforgiving.