Having a criminal or arrest record can make some of the basic functions in life more challenging. From securing a new job, renting an apartment, or gaining custody of your child, your criminal or arrest record may lead to some uncomfortable conversations about your past.
The good news is that you may have the option to have your record expunged. Our guide and FAQ below will detail the steps you can take to start the process and will also address some frequently asked questions about how to expunge your record.
What Is Expungement?
Expungement means to erase or obliterate. In law, it refers to the process by which a criminal or arrest history can be destroyed or sealed from the record. Virtually all states have enacted laws allowing people to expunge criminal and arrest records, but specific expungement laws vary from state to state. Once a history is expunged, it doesn’t need to be disclosed to employers, landlords, or schools.
So how do you start the process? Here’s an overview of the steps involved in getting an expungement.
1. Obtain a Background Report
It’s essential to obtain a comprehensive background check report before starting the expungement process. The information found on background reports used by employers, landlords, and school admissions departments comes mainly from public records.
However, it’s not always clear what gets included in a background check. Information about passing bad checks and credit card fraud may be included in consumer credit reports, while juvenile records may not show up as some states automatically seal or expunge them. That’s why it’s important to first check to see what shows up on your report.
2. Check Your Eligibility
In many states, you’re eligible for expungement only after serving your entire sentence, including probation. Some states also require waiting periods during which you remain crime-free, before you can apply for expungement.
For instance, if you’ve been convicted of a non-violent misdemeanor in Arkansas, you may have to wait 60 days after completing your sentence before seeking an expungement. In contrast, if you were convicted of a violent crime, you will likely have to wait 5 years and 60 days after completing your sentence to seek an expungement. During this waiting time, you can’t commit any other crimes. A lawyer can help you determine whether you meet your state’s eligibility requirements.
3. File a Petition
If you’re eligible for an expungement, you’ll need to file a petition with the courthouse to have your record expunged. In your petition, you’ll need to provide an explanation as to why your petition should be granted. You’ll also need to pay a fee and will also usually be required to schedule a hearing with a judge who will review your petition.
Paperwork requirements vary from state to state but they may use different terminology to refer to expungement and they may have specific rules on what to file and who to serve that vary among states. For example, in California you would file a Petition for Dismissal, but other states like Illinois you would file a Request to Expunge your criminal records.
4. Consult a Lawyer
If you’re worried about how to expunge your record, a lawyer can increase your chances of success. A lawyer who’s licensed in your state will be well-versed in the requirements and will be able to help you to fill out your paperwork correctly and get it submitted via the proper channels.
FAQ About Expungements
What’s the Difference Between Sealing My Record and Having It Expunged?
If you’re wondering how to expunge your record or seal it, you should know that there’s a difference between the two. Sealing a record means your record will be closed from public view. The record will still exist, but employers, landlords, and others won’t be able to access it. Sealed records can still be opened by court order, as for use in a later court case.
Expungement means your record is treated as if it no longer exists. Your criminal file would be removed from public records entirely, rather than just sealed. States have enacted differing rules about sealing records and expungements.
Some jurisdictions allow comprehensive expungement, which means that a judge will issue orders to reporting agencies and even law enforcement departments to seal the petitioner’s court, arrest, and investigative records. Other jurisdictions will offer Certificates of Actual Innocence, which are helpful when arrest records can’t be sealed. In some instances, your state court may request you to fill out a Petition for a Certificate of Innocence to request the actual Certificate of Innocence. Contact your state court for details.
Can All Crimes Be Expunged?
Some states have different views on what can be expunged from criminal records. For example, some will allow for expunging misdemeanor offenses, but not felonies.
Not all criminal offenses can be expunged; most jurisdictions will not allow murders and aggravated sexual offenses to be concealed from background checks. Some states also restrict the expungement of driving offenses, such as DUIs.
I Was Convicted in Federal Court. Can My Record Be Expunged?
Virtually all expungement proceedings occur in state courts. It’s very rare to obtain an expungement from a federal court. This is because there is no federal statute that governs expungement, although some jurisdictions may recognize an inherent authority for courts to expunge records in limited situations. Consult with an attorney in your area to see whether this may apply to you.
Can My Juvenile Record Be Expunged? What About My Adult Record?
The majority of expungements are usually granted for juvenile records. Some states allow adults to get their records expunged, while others don’t.
How Can I Get My Record Expunged for Free?
Details on how to expunge your record vary, as each state has its own process. Some states require fees for filing expungement paperwork, while others allow you to complete the process for free. In situations where you were arrested but not charged, charged and dismissed, or acquitted, you may be eligible to have your records expunged free of charge.
What Is the Difference Between Being Arrested and Convicted?
An arrest is when an individual is taken into custody upon suspicion of a crime. A conviction is a formal declaration of guilt in a criminal case that a judge or jury decides.
How Long Does It Take To Expunge the Criminal Record Once You Have Made the Petition?
The time needed for an expungement depends on many factors, including how fast your case is docketed, your jurisdiction, the number of pending claims, whether there are objections to the petition, and other essential factors. In most cases, an expungement takes six months or longer. The state is given a period of time to object to the petition for expungement, usually around 60 days.
Is There a Way to Speed up the Expungement Process?
The amount of time an expungement takes depends on many factors. However, you can expedite the expungement process by gathering relevant information and filing your paperwork promptly. The expungement process will depend on the court’s calendar, the number of pending cases, the jurisdiction, whether any objections have been filed, and other factors that may be out of your control.
What Is the Difference Between an Expungement and a Pardon?
With a pardon, the executive branch of the government forgives you for your crime. A pardon will free you from the obligations of your sentence. This does not necessarily mean the crime will be wiped from your record, as with an expungement. In some states, but not all, a pardon does include an expungement. In states that do not include expungement, you’d need to apply separately to have your record expunged after being pardoned.
Have Additional Questions About Clearing Your Record?
An expungement can help you seal or destroy a criminal record, but it’s not always a straightforward process. If you’re wondering how to expunge your record, an experienced attorney can answer any specific questions you may have about the expungement process in your state. Get the process started with a free legal review today.