When expungement of an arrest or conviction is an option in a state or county, in most instances a person's criminal record must meet certain standards in order to qualify for the process. Expungement eligibility usually depends on a number of factors, including:
- The amount of time that has passed since the arrest or conviction;
- The severity and nature of the event for which expungement is sought (i.e. a conviction for a sex offense may lead to a denial of expungement);
- Events in the applicant's criminal record (including arrests or convictions in all jurisdictions, not just the offender's state/county); or
- The severity and nature of other events in the applicant's criminal record.
Depending on the state and/or county, special eligibility rules might exist for expungement of arrests or convictions that occurred while the offender was a juvenile, and arrests or convictions for sex offenses. The basics of expungement eligibility are covered below.
The Expungement Process
While the process will be different in each state or county, typically, it starts with filing an application or petition for an expungement. Not all jurisdictions use the same terminology. So, for example, while Utah refers to this as expungement of records, California refers to it as cleaning your record with a dismissal, and some states like Michigan refer to it as setting aside a conviction. Regardless of the description used, the effect is the same as the process will result in the removal or sealing of your criminal records.
When filing an application, your court will likely have standard forms to use as well as checklists of documents and information you'll need to include with your request. It's critical to make sure that you include all of the necessary items in your request. If certain documents or information are not available, then your application should explain what steps you took to find them and why you were not able to obtain them.
Often times, however you can receive everything that you'll need to include with your request from the county prosecutor's office. In many jurisdictions, you will even need to obtain approval from the prosecutor's office before your request goes to the court.
Usually, when the court grants a petition or application, it will issue an order of expungement which can then be served on other agencies. This makes sure that any records they have on your are also sealed or removed. These agencies often include:
- The arresting agency (such as the local police department or sheriff's office);
- The booking agency (such as the county jail); or
- Your state's department of corrections (covering your records while serving any prison sentences)
Expungement Eligibility: Other Considerations
If your underlying convictions involve sex offenses, then you may be subject to certain registration and reporting requirements. If you obtain an expungement of your criminal records, don't assume that this will automatically remove any registration or reporting requirements.
In California, for example, in addition to an order dismissing your criminal records, you will also need to file a separate motion to be relieved of your registration and reporting requirements. If that separate request is not granted, you would still need to follow the registration and reporting laws in your state.
Get Legal Help with the Expungement Process
It's good to know that those arrested or (in some cases) convicted of a crime sometimes have the option of removing the incident from their records. But each case is different, so it helps to know what the expungement eligibility is in your jurisdiction. Learn more about your expungement eligibility by discussing your case with an experienced criminal defense attorney near you.