Expunged Records vs. Sealed Records: Definitions and Comparison

An expunged criminal record means it is fully cleared from private and public records. The court issuing the order directs public offices that hold records of the case to destroy them. However, some states like Minnesota use the term "expungement" to actually mean sealing your record.

A sealed criminal record looks like the crime never happened to the general public — but certain government and law enforcement agencies can unseal the arrest record with a court order and see any criminal history.

Whether a criminal case can be sealed or expunged depends on the following:

• The state in which the record exists
• That state's criteria for eligibility

Expungement is not available at the federal level for federal crimes. It is generally prohibited for sex offenses.

DUI expungement is a popular option that only some states allow.

Expunged Record: Overview

The process of clearing an arrest or criminal conviction from a person's criminal record is called expungement.

While this is an attractive option, it isn't available for all arrests and convictions. Whether expungement is available mainly depends on the jurisdiction in which the arrest or conviction occurred. The police department where you were taken after an arrest is typically the jurisdiction of your case.

If your jurisdiction allows for expungement, the next step is to determine if the particular arrest or conviction is eligible for expungement.

For example, a state may require that a certain amount of time passes following an arrest before it becomes eligible for expungement. Other states might have a list of criteria you need to meet. State laws may only allow certain convictions to be expunged, such as gross misdemeanors or misdemeanors, but not felony convictions. Oftentimes, domestic violence offenses and traffic offenses are not eligible.

Although most states provide for confidentiality related to juvenile records, the ability to expunge or seal a juvenile record also varies based on state law.

Sealed Record: Overview

When a person's record is sealed, it is not readily available to the public. However, sealed records can still be accessed or "re-opened" by criminal justice agencies or government organizations with a court order.

Just like the process and criteria for sealing a record, how and when a record can be unsealed depends on a particular jurisdiction's laws.

For example, a person who was acquitted at trial may be able to seal any record of their arrest or detention. Others arrested for a crime might be able to request to have their arrest record sealed and destroyed if:

• They never had criminal charges filed against them
• The charges against them were dismissed

Expunged vs. Sealed Records vs. Pardons

Expungement will clear a conviction or arrest off of a person's criminal record and background check. A sealed record only hides the record from public view. The record still exists to some organizations, but not to the general public. The process for expungement or sealing of criminal records will be set out in state law.

Expungement or sealing records differs from a pardon for a crime. Expungement or sealing does not excuse or forgive the criminal conduct. It usually occurs after the adjudication or dismissal of a criminal case. A pardon does excuse conduct or provide amnesty. It will remove or decrease the penalties faced by the criminal defendant. Although it usually follows conviction and sentence, it may not. President Ford's pardon of President Nixon's conduct during the Watergate scandal occurred when no criminal charges were pending. The process for granting pardons vests in the executive — the Governor (state government) or the President (federal government).

It's important to compare the pros and cons of expunged vs. sealed records. They may differ greatly or essentially mean the same thing depending on the jurisdiction. Your decision might also be determined by:

• The cost of each option
• The process (which could require you to take time off from work and return to court or simply file paperwork)
• If you need (and can currently afford) an attorney to complete the process
• The timeline needed to complete the process (which could take weeks or months)

Remember that these options may be limited in some states. States also may use the terms interchangeably — so ask an attorney what results you will get from each option.

In some states and cases, organizations like the FBI or local law enforcement can still see expunged or sealed records such as an arrest. The details of the case and your criminal history may be mostly hidden but show as an arrest only. In short, some organizations may still see that some criminal offense exists on your record. Some government organizations, like the state attorney's office, can review sealed records and dig deeper to get the information they want about someone's criminal history. States often provide prosecutors with such authority when dealing with a crime where a prior conviction enhances a new charge.

You can still join the military with some sealed or expunged criminal records. Military services have their own criminal law codes and may require a criminal record waiver or may treat your civilian criminal charges differently.

Sealed Records: State-Specific Examples

As noted above, expungement is usually a better option than sealing a record because it is more likely to be permanent. Unfortunately, expungement isn't available in every jurisdiction.

Whether an offender's record will be sealed and the process for sealing the record will depend on the circumstances of the arrest or conviction.

Arizona Expungement and Sealed Record Examples

In Arizona, for example, some criminal records can't be expunged. The state does permit the expungement of a marijuana criminal offense. An Arizona resident with a criminal record can obtain a "set aside" or potentially seal their record. A "set aside" doesn't clear or hide a conviction but rather indicates that the offender has completed all penalties associated with the crime.

California Expungement and Sealed Record Examples

In California, a person who's been arrested or convicted can seek to seal their record. The process is called a petition for dismissal.

The state did not have a true expungement option until recently. Starting July 1, 2023, residents can petition for some criminal records to be sealed and expunged under SB-731, which is a “clean slate law."

Clean Slate Laws

Several states have clean slate laws that automatically expunge a criminal record. This includes:

• Connecticut
• Delaware
• Michigan
• Pennsylvania
• Utah
• Colorado (starting in 2024)

These laws often only apply to misdemeanor and non-violent crimes. Sex offenders and those convicted of other serious crimes will not qualify. Such laws may share several characteristics. One common factor is the ability for offenses to "fall off" a criminal defendant's record automatically after a waiting period. The waiting period is typically a clean record for a certain amount of years.

In recent years, more states have proposed Clean Slate Acts. Some proposals may be in progress but not enacted at this time.

Sealing Your Criminal Record

Not all criminal records are eligible for expungement or sealing. And expungement and sealing statutes only direct government agencies to seal or destroy public records. They have no effect on private entities such as newspapers that reported an arrest or conviction.

If expungement or sealing is available, it can limit exposure of past criminal conduct on a job application or a landlord's lease. It may help you pass a background check. It doesn't hurt to explore what options are available to you. Obtaining legal advice from a professional who understands how the system works in your state can be helpful.

The best way to cover your bases is to discuss your situation with an experienced criminal defense attorney near you. The final decision on expungement may be left to the judge's discretion. An attorney can explain if petitioning for expungement or sealing is worth your time and money and explain the likely outcomes.