Expunge an Arrest

A criminal record can cause you difficulty, whether you’re trying to get a new job or rent a new apartment. This can be even more frustrating if the only blemish on your record is an arrest that didn’t lead to conviction. In all but five states, you can get that arrest expunged from your record, which means the arrest is erased or eliminated from your record. In many states, you can have an arrest expunged even if you were convicted of a crime, provided you’ve met all the qualifications.

Steps

Researching State Law

1. Determine what options for expungement are available in your state. Not all states allow criminal records to be expunged, and those that do may only allow it in specific instances.
   • You must follow the expungement rules and procedures of the state where you were arrested, even if you are a resident of another state.
   • Some states allow for “sealing” rather than “expungement” specifically. If a criminal record is sealed, it’s hidden from the general public but still exists on your record as a whole. Sealed records can be unsealed in some instances. Expungement removes the record entirely, and cannot be undone.
2. Find out what crimes are covered. Some states such as Colorado allow expungement of many types of crimes, while others such as Wyoming prohibit any expungement at all.
   • Generally, it is quicker and easier to get an arrest record expunged if the charges were dismissed and you were not convicted of a crime.
   • Many states do not allow expungement of a conviction for a sexual offense, and do not allow expungement at all for registered sex offenders.
   • In most states, expungement is available only for first-time misdemeanors and non-violent felonies. An arrest for a serious, violent felony often cannot be expunged even if your arrest did not lead to conviction.
3. Review the elements of expungement. Although expungement laws differ and there's no universal process, getting an expungement can help you accomplish things you might have found difficult with an arrest on your record.
   • Most states allow you to deny you were ever arrested or charged with a crime if you're asked on a basic job or school application.
   • If you apply to rent an apartment, the arrest won't show up, which means landlords will be more likely to rent to you and might charge you less of a security deposit.
   • If a single arrest is your only brush with the law, expungement of that arrest gives you a blemish-free criminal record for most purposes.
4. Decide whether you would benefit from expungement. Depending on your goals for getting an expungement, the process may be more trouble than it’s worth.
   • For example, in California, an expungement does not remove the conviction from your criminal history, seal the court case file, reinstate your right to possess firearms, allow you to omit the conviction from some employment applications, or allow you to run for public office.
   • Before you begin the process of requesting expungement, make sure that in your state you can use expungement to get the benefit you seek. For example, suppose you were convicted of theft. If you want to be able to answer “no” when a potential employer asks if you’ve ever been convicted of a crime, it may not be worth it to you if your state doesn’t allow you to deny an expunged conviction.
   • Forty states allow expungement of arrests that didn’t lead to conviction, but 11 of those states don’t permit you to deny the arrest if asked on an employment or rental application if you’ve ever been arrested.
   • All but three of the 16 states that allow expungement of convictions also allow you to deny the conviction if asked.
   • Law enforcement agencies and courts still have access to expunged arrests, and may use the information when investigating a crime.
   • If you’re convicted of another crime after having a prior conviction expunged, the expunged conviction may still be used in sentencing. For example, although you have your DUI conviction expunged, if you are convicted of DUI again it would be treated as your second conviction.
   • Generally, if you’re applying for a professional license or a job in law enforcement, you still have to disclose any criminal records you’ve had expunged.

Qualifying for Expungement

1. Successfully complete all probation or diversion programs. If you were convicted of a crime, you must finish everything the judge ordered, including paying any fines or restitution, before you apply to have your record expunged.
   • Diversion programs often are available for first-time offenders charged with minor crimes. The program typically lasts from six months to a year and can include drug or alcohol abuse counseling and rehabilitation, community service, and paying fines or restitution to any victims.
   • If you received a suspended sentence and were put on probation, you typically must complete your entire probation term without a single violation or incident to be eligible for expungement. For example, a college student convicted of drug possession might be given 90 days probation and ordered to pay a fine. Provided he reports to his probation officer, fulfills all the conditions of his probation, has no further brushes with the law, and pays his fine in full, he could possibly get that conviction expunged.
2. Wait the required time after arrest. The waiting period after an arrest or conviction before you can file to have the record expunged depends on several factors including your age and the severity of the crime.
   • In some states you only get one or two opportunities to expunge an arrest record, regardless of whether you were convicted of any crime.
   • The waiting period doesn’t begin until after all sentences have been completed, including probation, and any fines have been paid.
3. Avoid committing other crimes. In most states you are not eligible for expungement if you have any criminal charges pending or have broken the law since your arrest.

Filing for Expungement

1. Locate your records. In many states, you must gather information about the record you want expunged, including documents such as the certified disposition of the charge, the arrest record, the arrest warrant, and proof that you completed any court-ordered probation or diversion programs.
   • The documents you need typically are available at the police precinct where you were arrested, or the court where your case was heard.
   • You probably will have to pay fees for certified copies of these documents.
2. Request your criminal history and fingerprint records from the local police station. These and other similar records typically are necessary to complete a request for expungement.
   • Some states, such as Florida, require new fingerprints to be taken and submitted with your expungement petition.
3. Complete the necessary forms. Your state will have forms, typically called a Motion or Petition for Expungement, that you must fill out to request the expungement of a criminal record.
   • You should consider talking to a criminal defense attorney if you find the forms or process difficult, or have problems getting the necessary information to complete the forms.
4. File and serve your expungement forms. Once completed, you must file your forms with the proper court. In some states, you also must serve the forms to district attorneys or law enforcement agencies.
   • You will have to pay a fee when you file your forms, which are usually a few hundred dollars. You also will have to pay fees for service of process. These fees are nonrefundable.
   • The filing fee will vary based on the state and county where you were arrested or convicted, as well as the type of crime involved. Most states allow you to apply for waiver of the fee if you cannot afford it.
   • Once filed, the clerk will stamp your petition, assign a docket number, and give you the date and time of your hearing.
   • If you’re required to serve your expungement petition to district attorneys or other law enforcement officials, you cannot do this yourself. The court will have a list of local process serving companies.

Attending Your Hearing

1. Appear in court for your hearing. Depending on the state, you may be asked to appear either before a judge or before a parole board for a hearing or interview regarding your request for expungement.
   • The judge typically has discretion as to whether she will order expungement of your criminal record based on the facts and arguments during the hearing.
   • Even though the hearing may be somewhat less formal than a trial, treat it just as you would a formal trial. Arrive early, dress professionally and conservatively, and behave appropriately. Address the judge and other court officials politely and treat them with respect.
   • Bring your own copies of all the documents you’ve filed, as well as any other documents you believe have relevance to your case.
2. Answer any questions asked by the judge. The judge needs to decide if you’ve been successfully rehabilitated, and may ask you questions about your education, home and family life, financial health, physical well-being, or employment.
3. Listen to any objections. Your hearing may be attended by any police officers or district attorneys who object to the expungement of your record.
   • Depending on the objection, the judge may ask you questions about it.
4. Follow up after your hearing. If your expungement is granted, you’ll need to obtain copies of your signed and filed Expungement Order and mail them to the relevant law enforcement agencies. The court will let you know who needs to receive a copy of the order.
   • If your petition is denied, ask the judge to list the reasons for the denial and explain what you can do to clean your record. Typically after those issues have been resolved you can reapply for expungement.

Tips

• Juvenile records typically are expunged when the individual reaches the age of majority. In some states the records are destroyed. In others, the records are sealed and unavailable to the public. If you have a juvenile record, follow up with the applicable court to make sure no further actions are necessary to expunge it.
• Although you do not need a lawyer to represent you during your expungement hearing, consulting a legal professional is recommended. If you choose to represent yourself, court staff can answer questions about the forms you need and court procedures, but they cannot give you legal advice.
• If you have a mistaken arrest, an acquittal, or charges that were dropped or dismissed, the record of your arrest will not be removed unless you take action to have it expunged.
• In most states, you must also petition the state to destroy any DNA samples that may have been taken when you were arrested.
• Some states have diversion programs for people convicted of drug offenses such as possession, or for first-time offenders. These programs usually include expungement of the offender’s record with successful completion of the program.
• In California, you may be able to get a Certificate of Rehabilitation even if you can’t get an expungement. The Certificate states that you are a rehabilitated member of society who no longer commits crimes.
• If you were arrested but never convicted, you may be able to get a Certificate of Actual Innocence, which is more powerful than mere expungement because it establishes that you were completely innocent of the offense in question, the arrest shouldn’t have taken place, and the record shouldn’t exist.

Warnings

• If you have been arrested for a federal crime, expungement may be more of a challenge. There is no federal law providing for the expungement of criminal records for any reason, and the federal courts are divided on whether judges have this authority.
• State governors and the president of the United States can pardon criminal convictions. However, a pardon works differently than an expungement and the two are not interchangeable. With a pardon, the arrest and conviction will still appear on your record, but there will be a line indicating you were pardoned.

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