In the common law legal system, an expungement proceeding is a type of lawsuit in which the subject of a prior criminal investigation or proceeding seeks that the records of that earlier process be sealed or destroyed, thereby restoring the subject's name. If successful, the records are said to be "expunged". Black's Law Dictionary defines "expungement of record" as the "Process by which record of criminal conviction is destroyed or sealed after the expiration of time." While expungement deals with an underlying criminal record, it is a civil action in which the subject is the petitioner or plaintiff asking a court to declare that the records be expunged.
Each jurisdiction whose law allows expungement has its own definitions of expungement proceedings. Generally, expungement is the process to "remove from general review" the records pertaining to a case. In many jurisdictions, however, the records may not completely "disappear" and may still be available to law enforcement.
Who can get a court record expunged?Eligibility for an expungement of an arrest, investigation, detention, or conviction record will be based on the law of the jurisdiction in which the record was made. Ordinarily, only the subject of the record may ask that the record be expunged. Often, the subject must meet a number of conditions before the request will be considered.
Requirements often include:
- Fulfilling a waiting period between the incident and expungement;
- Having no intervening incidents;
- The number of prior incidents;
- The seriousness or type of offense involved in the incident;
- Fulling the terms of any sentence;
- Not having any pending criminal investigation or proceedings;
- That the incident was disposed without a conviction; and
- That the petitioner complete probation without any incidents.
In some jurisdictions, all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person's detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system can be expunged. Each state sets its own guidelines for what records can be expunged. The petitioner requesting an expungement of all or part of their record will have to complete forms and instructions to submit to the appropriate authority. The petitioner may choose to hire an attorney to guide them through the expungement process, or he/she can decide to represent themselves, also known as appearing pro se.
Most jurisdictions have laws which allow - or possibly even require - the expungement of juvenile records once the juvenile reaches a certain age. In some cases, the records are destroyed; sometimes they simply are "sealed." The purpose of these laws is to allow a minor who was accused of criminal acts, or in the language of many juvenile courts, "delinquent acts," to erase his record permanently, usually at the age of 17 or 18. The idea is to allow the juvenile offender to enter adulthood with a "clean slate," shielding him or her from the negative effects of having a criminal record.
United KingdomIn the United Kingdom the term "spent conviction" is used and the relevant legislation is the Rehabilitation of Offenders Act 1974. In the PNC's data retention model, arrests which do not lead to a finding of guilt "step down" as soon as the relevant decision is made (typically a "not guilty" verdict or a dismissal of charges) and become visible to law enforcement only. Records of cautions and minor convictions also step down after a specified period of time.
ArizonaArizona's expungement equivalent is "setting aside" a conviction. Arizona's setting aside statute allows a defendant to petition the court to have a conviction set aside after the terms of the sentence are met. If the court grants the petition, the defendant is "released from all penalties and disabilities resulting from the conviction other than those imposed by the Department of Transportation." In order for one to qualify for expungement, they must have completed probation, paid all fines and restitution, not served a sentence in state prison for the offense, and not currently being charged with a crime. To be eligible for sealing or expungement, the defendant must not have been convicted of or have pled guilty to any criminal offense, and must not have previously received an expungement or sealing. Some criminal records are ineligible for expungement or sealing if they resulted in a final disposition of Adjudication Withheld. A Certificate of Eligibility from the Florida Department of Law Enforcement is required prior to petitioning the court for an order to seal or expunge a record. There is a $75.00 charge for the Certificate of Eligibility. A successful sealing will limit disclosure of the record to only the Florida Bar, the Florida Department of Children and Families, the Florida Board of Education, law enforcement and in a few other circumstances. An expunged record will be unavailable for dissemination to any private or public entity, though the four agencies that can see a sealed record will be informed only that a record has been expunged.
IllinoisIllinois law allows the sealing or expungement of parts of the records of a conviction. Sealing a conviction prevents the public, including employers, from gaining access to that record.
A person is eligible for expungement in Missouri if the arrest was based on false information and the following conditions exist: Unlike ordinary expungement, the MIP expungement exists with the explicit legislative mandate that the effect of an order of expungement under it "shall be to restore such person to the status occupied prior to such arrest, plea or conviction, as if such event had never happened." All fines must be paid, and a waiting period that begins at the completion of the sentence must be met (5 years for disorderly offenses – 10 years for indictable offenses). Not all offenses are eligible.
New YorkNew York Criminal Procedure Law 160.50 permits the "sealing" of cases where charges were dismissed, vacated, set-aside, not filed, or otherwise terminated. Otherwise, New York does not allow expungements, or "sealings," of cases where a conviction was entered, except for some older controlled substance, marijuana, and loitering offenses. Sealing a record under 160.50 will prevent the public from having access or seeing the records, including fingerprint cards, photographs, court entries, and other information related to the case. The record may still be made available to some entities, such as courts and law enforcement.
New York also permits the expungements of misdemeanor and non-criminal dispositions through New York Criminal Procedure Law 160.55. Felony adjudications are not eligible.