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Post Conviction Relief FAQ

Criminal LawPost Conviction Relief / Post Conviction Relief FAQ

EXPUNGEMENTS

Q: What, exactly, is expungement?

A: First-time offenders convicted of certain types of crimes can have their records “expunged” (sealed) after their cases have been resolved. This means that these prior convictions are no longer in the public record. Records are expunged so that first-time offenders who paid their debt for particular crimes can go on with their lives as though the convictions had never occurred.

Q: Who qualifies for expungement?

A: First-time offenders who have committed crimes that the law allows to be expunged can qualify. Generally, a first-time offender is someone who has had only one misdemeanor or felony conviction. With the exception of convictions for DUI or refusing to take a breathalyzer test, most traffic and driver’s license violations are not considered prior convictions, so would not generally qualify for expungement. So, for example, if you have had seven speeding tickets and one theft conviction, only the theft conviction would qualify to be expunged.

Q: Might I ever be considered a first-time offender even though I have more than one conviction?

A: Yes. If your offenses were committed at the same time or arose from the same act, the court still may find you to be a first offender. Also, if you have two or three convictions that occurred within a three-month period and were tried in the same court proceeding, you may be considered a first-offender. If the court determines that you will be considered a first offender, your convictions can qualify to be expunged.

Q: If the records are only sealed, does this mean they can still be accessed?

A: Yes. The records are not destroyed, but can be used by a limited number of persons and for a limited number of reasons. For example, if an employer asks if you have been convicted of a certain crime (say, theft) that might have a bearing on the position you are seeking (say, as a real estate office manager with access to clients’ house keys), then you would have to acknowledge the expunged conviction. Sentencing courts and law enforcement officials investigating later crimes also may use expunged records. In addition, if you are seeking a position involving the direct care of an older adult or with a board of education, the employer may access your sealed conviction.

Q: What kinds of criminal convictions generally can be expunged?

A: Felonies and misdemeanors generally can be expunged, unless a criminal statute specifically states that a particular crime is not expungeable.

Q: What kinds of criminal convictions cannot be expunged?

A: Any offense requiring a mandatory prison sentence cannot be expunged. Such crimes include rape, sexual battery, corruption of a minor, sexual imposition, or obscenity or pornography involving a minor. Violent felonies, domestic violence, and violent first-degree misdemeanors or felonies and misdemeanors in which the victim is a child (under 18) likewise are not eligible for expungement. As mentioned above, no driver’s license and motor vehicle violations, nor bail forfeitures in traffic cases can be expunged, as they are not regarded as prior convictions.

Q: How soon after an offense can I apply for expungement?

A: If you qualify as a first-time offender for a misdemeanor offense, you may apply for an expungement if one year has passed since your sentence ended. For example, if you were sentenced to two years of probation, you could file for an expungement one year after your last day of probation. If you were convicted of a felony, you would have to wait three years after the end of your sentence. In addition, the one- and three-year time periods will not begin until you pay any restitution you might owe.

Q: Assuming I am a first-time offender and my offense is expungeable, how do I file for an expungement?

A: You may apply for expungement to the court in which you were sentenced. Once you apply, the court will set a hearing date. The probation department will usually investigate your case and prepare a report for the court to use in determining whether or not to grant the expungement. The prosecutor may challenge the expungement by filing an objection before the hearing date.

Q: How does the court decide whether or not to grant me an expungement?

A: The court will perform a test to weigh your interest in clearing your name against the government’s need to allow public access to your records. The court will review the probation report to see how you have behaved since the conviction. If the report shows that your crime was an isolated incident and that you have since shown a desire to get on positively with your life, then the court will probably grant the expungement.

Q: Will the court automatically grant an expungement if my case was dismissed, or if I had a “not guilty” verdict, or if the grand jury issued a “no bill” and refused to indict me?

A: No. Regardless of the outcome in the case, you must follow the procedure outlined in this article to get the records expunged. There is, however, generally no waiting period to file for expungement of a dismissal, not guilty verdict or a “no bill.”