Everyone makes mistakes. For most of us it’s not a big deal. We learn from them, we mature, we move on. Unfortunately when those mistakes involve a criminal conviction, your past can haunt you for the rest of your life. Many people with a criminal record can find themselves answering for the same crime. Many applications require you to disclose your criminal history. Applications for jobs and college are of particular concern. Not only is it embarrassing to tell complete strangers about your past indiscretions, but now your dreams to improve your professional life can hang in the balance.
Unfortunately, as computer technology continues to improve, it gets harder and harder to hide your past. These days, the vast majority of states keep very meticulous computerized records and Google is littered with advertisements for back ground check companies. Now pretty much anyone with a high speed internet connection and twenty bucks can find out your criminal history in five minutes.
While history can never be erased, you may be able to secure the privacy of your records if you can obtain an expungement. An expungement, if granted, will require all law enforcement agencies to keep your record sealed. With certain exceptions, you will be able to treat the arrest as if it never happened.
In order to be eligible for expungement you must meet certain qualifications. These qualifications change depending upon what you were convicted of.
Certain serious convictions can never be expunged. Examples are Homicide, kidnapping, human trafficking, Child luring, Aggravated sexual assault, aggravated criminal sexual contact, Robbery, Arson, terrorism, perjury, false swearing, and certain offenses where the victim was a child. Conspiracies and attempts to commit these crimes are also not expugnable.
While convictions for sale or distribution of controlled dangerous substances are also technically not expugnable, if they are third or fourth degree and the court finds that it is in the public interest to grant the expungement, you may still be able to clear them from your record. Please note that if the Controlled dangerous substance was 25 grams or less of marijuana, or 5 grams or less of hashish, you can still get an expungement without a finding that it is in the public interest.
If you are convicted of an indictable offense (fourth degree or higher) which is not listed above, you may be eligible for an expungement. For the offense to be expugnable you must not have been convicted of any other indictable offenses. You also must not have been convicted of any more than two Disorderly Persons or Petty Disorderly Persons offenses. For the purposes of expungement, crimes committed at or about the same time may be considered one offense. Please check with an attorney to see if this applies. Also be aware that convictions from other states count as an offense. Whether they will count as an indictable offense depends on the nature of the offense. Again, an attorney can help you in making this determination.
Disorderly persons and petty disorderly persons offenses are expugnable so long as there is not more than three total convictions. Again, crimes committed at the same times may count as a single crime and crimes from out of state count as an offense. Our office will be happy to assist you in determining whether you are eligible. Lastly, a conviction for a municipal ordinance violation should be treated as a disorderly persons or petty disorderly persons offense to determine whether the conviction can be expunged.
Lastly, a record for arrest where there was no conviction and for successfully completing a Pre-trial intervention or conditional discharge program can be expunged. While these are not technically convictions, a record is still kept on file and can be found with the same ease as a conviction record. If you are worried you may have an arrest record, my office will be happy to assist you in determining whether you need an expungement. One strange exception applies here. If you were arrested and found not guilty by reasons of insanity, the arrest is not expugnable.
If the conviction is expugnable, you must next determine whether enough time has elapsed for you to receive an expungement. The waiting period begins to accrue once the person has met all conditions of their sentence including payment of fine, parole, probation, or release from jail. How long a person must wait depends upon the conviction.
Indictable offenses are expugnable after ten years. In certain instances you may be able to expunge indictable offenses in five years when it is in the “public interest.” Also, if the ten year requirement would have been met but for payment of a fine, the court may waive the requirement if payments are being made on a court authorized plan, or the fine was not paid because of “compelling circumstances.” Disorderly and petty disorderly persons offenses require you to wait five years. Offenders under the age of 21 who were convicted of Marijuana CDS offenses may be able to get an expungement after one year if the conviction was for possession or distribution of less than 25 grams of marijuana or 5 grams of hashish. This applies only if there were no probation violations, no other convictions, and there were no prior dismissals because of a diversionary program. Municipal ordinance violations are expugnable after two years. Arrest records for PTI, conditional discharge, and other diversionary programs are expungable six months after successful completion. Arrests where there was a dismissal without any conviction are expungable at any time.
Applying for an expungement can be difficult. It requires you to obtain your complete criminal history, file a motion with the court, and put several law enforcement organizations on notice. You may even be required to attend a hearing if any of the law enforcement agencies object. This process is tedious and must be done right to make sure your record is completely clear.
Lastly, it is important to note that your expunged record does not disappear. It is just sealed. Certain circumstances can cause it to come up. Most commonly, if you are involved in criminal proceedings again, it can be used to the same extent had it not been expunged. While most employers will not be able to obtain the records, law enforcement agencies may consider the record. This includes jobs with corrections departments, prosecutors, courts, and police. Lastly, while your expunged record is not available publicly any private individual or agency not associated with law enforcement can still use the record if it was made available to them prior to the expungement.
If you are uncertain whether you are eligible for an expungement or if you plan to expunge your record call my office for a free consultation. Do not risk trying to do this without the assistance of an attorney. There are a lot of documents that must file appropriately and one might result in your record still being available when you think it is sealed. The advice of an experienced attorney can prevent this from happening. My office is happy to help you get the second chance you deserve.