Anybody can make a mistake or have a momentary lapse in judgment. But when this lapse in judgment results in arrest, criminal charges or a criminal conviction it can haunt you for a long time, especially when a prospective employer is seeking to conduct a criminal background check. There is, however, a legal remedy available to limit the negative effects of the records relating to these incidents under certain circumstances: Expungement.The legal remedy of expungement serves to seal the records related to criminal charges and convictions from the general public (It does not provide for the destruction or return of the records to you).
The first step in expunging your criminal records is to determine whether it is necessary for you to pursue your expungement pursuant to the court’s statutory authority or pursuant to its inherent authority. Statutory expungement is available where your criminal matter was “resolved in your favor” and extends to records held by both the judiciary and executive-branch agencies, including the records held by the Bureau of Criminal Apprehension. If the matter was not “resolved in your favor,” it is possible, but difficult, to be granted expungement of your criminal records pursuant to the court’s inherent authority. If you are granted expungement pursuant to the court’s inherent authority it is most likely the remedy will only extend to the sealing of the court’s records but you should contact a good expungement attorney regarding the possibility of extending the remedy to records held by other branches.
So, how do you know if your criminal matter was “resolved in your favor?”
For the purposes of expungement, a case is “resolved in your favor” if you were never convicted and you did not enter a guilty plea. This means if the case was dismissed prior to a plea or you were found not guilty, the matter was “resolved in your favor.” If you plead guilty and the matter was subsequently dismissed, as in the case when you receive a stay of imposition or a stay of adjudication, the matter was not resolved in your favor. As mentioned above, if the matter was “resolved in your favor” you are entitled to a statutory expungement. In most counties, this means you will not need to pay a filing fee to receive this remedy and you may not even need to appear at a hearing.
If the matter was not resolved in your favor, which is the case for the majority of criminal matters, you are not entitled to expungement and you will need to prove to the court that either your constitutional rights are being seriously infringed upon by the retention of the records related to your criminal matter or that, on balance, the benefit to you from getting an expungement is more than the disadvantage it would be for the public to not have access to your criminal record. The court will make this determination based on a number of factors, including, (a) the extent you demonstrate difficulties in securing employment or housing as a result of the records sought to be expunged; (b) the seriousness and nature of your criminal offense; (c) the potential risk to the public’s right to access the records; (d) any additional offenses or rehabilitative efforts since the offense, and (e) other objective evidence of hardship under the circumstances. If you determine your case was not “resolved in your favor,” you should be sure to contact the BCA to see what records are on file via both a public record search and a private record search (some minor crimes are not reported). Based on this information, you can determine what would be reported by the BCA even if you were successful in your request for an expungement and the records of the court were sealed.
As stated above, expungement is a complicated process, best pursued with the assistance of an attorney. It involves a lot of paperwork and attention to detail, and will take at least four months to complete the process. If you decide to go forward and request an expungement, you should talk to an attorney, or at a minimum, be sure you understand all of the required procedures and that you carefully follow them.