Criminal Law

Expunging Adult Criminal Records

By Janet Portman, Attorney
An adult criminal record can be sealed when the underlying offense is relatively minor and the offender has since been law-abiding. But even then, it can be used against you in certain situations.

Having a criminal record can pose many problems for anyone who applies for a job, a place to live, a loan, or a license to practice a profession or occupation. Losing out on these opportunities can feel particularly unfair when the record-holder has since been law abiding. Fortunately, in some cases -- depending on the specifics of your record and on the law of the state in which the convictions occurred -- you may be able to clean up your criminal record through a process called "expungement" or, in some states, "expunction” or “sealing.”

This article concerns adult criminal records. If you are interested in sealing a juvenile court record, see Expunging Juvenile Court Records.

What Is Expungement?

Expungement refers to the process of destroying, erasing, or sealing arrest or conviction records. Almost every state has laws that allow people to expunge arrests, and often convictions, from their records. Though the details vary from one state to the next, most states' laws provide that once an arrest or conviction has been expunged, it need not be disclosed, including to most potential employers or landlords. For instance, suppose you were convicted of assault and later got the record sealed, and that you had no subsequent brushes with the criminal law system. When applying for an apartment, you can legitimately check the “None” box when asked to list your criminal convictions.

It’s important to understand that in some situations and for some purposes, even a properly sealed record will come to light and affect you. These situations are described below.

Is Your Record Eligible for Expungement?

Your first order of business is to find out whether your record qualifies for expungement. A few states rarely allow expungement of accurate arrest or conviction records, but most states have procedures that depend on the following factors:

  • Were you convicted of a crime, or just arrested? Some states will more readily expunge arrest-without-conviction records than those that resulted in a conviction.
  • How severe was the crime? In general, only relatively minor offenses qualify for expungement. No state allows offenders to expunge a violent felony or a serious sex offense.
  • How long it has been since you were arrested or convicted? All states impose a waiting period of three, five, or more years.
  • Did you successfully complete the terms of your sentence, probation, or diversion program? Some sentences include long probationary periods, and in those situations, the waiting period won’t begin to run until the sentence is complete, and
  • Have you have been convicted of subsequent crimes? Most states will not offer record sealing to people who have re-offended in the meantime. And, most statutes require that the offense that’s the subject of the expungement be the offender’s first conviction.

Applying for Expungement

If your criminal record is eligible for expungement, you may not need to hire an attorney to complete the process. Some states make it easy to apply for expungement, and many court websites offer expungement information and forms you can download for free. (That said, you must usually pay a fee at the time you file your paperwork with the court.) In more complex situations, you will need the assistance of a qualified criminal law attorney.

Practical and Legal Limits on the Value of Expunging

Although expunging your record will have many advantages, understand that it will not completely erase the event from the face of the earth. Your conviction will come to light and can be used against you in the following circumstances and ways:

  • Online information lives on. If the circumstances of your arrest and conviction were the subject of local news coverage, chances are that there’s an online record of that, which will not be affected by your successful record sealing. If the incident was discussed in social media, it’s still out there.
  • Subsequent criminal charges and sentences. Many criminal offenses can be charged as more serious crimes when the defendant is a repeat offender. Sentences, too, can be augmented. Your record will be available to the prosecutor and the judge should you end up in court again.
  • Applying for certain sensitive jobs. Most expungement statutes allow specified employers to gain access to your record, sealed or not. These employers include the government, particularly when you’re applying for law enforcement jobs; and private employers where you’ll be interacting with children or vulnerable adults.

Questions for Your Attorney

  • Can I expunge a record in my home state, even though I’ve been convicted of a subsequent offense in another state?
  • If I qualify under the terms of my state law, is there anything the prosecutor or the victim can do to block expungment?
  • I expunged my record and denied having a conviction when an employer asked about it. How can I deal with this employer who found my conviction in a Google search and is using it to deny my application?
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