Understanding How Criminal Records Are Sealed (Expunged)

Q.: What, exactly, is sealing of the records, or expungement?

A.: First-time offenders convicted of certain types of crimes can have their records “expunged” or 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 those who have not previously been in trouble with the law and have paid their debt for particular crimes can go on with their lives as though the convictions had never occurred.

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

A.: Yes. The records are not destroyed and 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.

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

A.: Felonies and misdemeanors other than motor vehicle violations or minor misdemeanors that do not fall into certain categories can generally be expunged, unless a criminal statute specifically states that a particular crime is not expungeable. Expungeable offenses include most types of theft and shoplifting, vandalism, trespass, criminal mischief, disorderly conduct and similar non-violent crimes.

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 and first-degree misdemeanors or those in which the victim is a child (under 18) likewise are not eligible for expungement. In addition, no driver’s license and motor vehicle violations, nor bail forfeitures in traffic cases can be expunged. Since minor misdemeanors, such as possession of less than 100 grams of marijuana or certain disorderly conduct are not considered crimes, they also cannot be expunged.

Q.: Who qualifies for expungement?

A.: First-time offenders who have committed crimes not falling in the “non-expungeable” category qualify. A first-time offender has had only one conviction. Most traffic and driver’s license convictions are not considered previous convictions. Therefore, if you have had seven speeding tickets and one theft conviction, only the theft conviction counts and you would be eligible for expungement of the theft conviction.

Q.: How soon after an offense might I be able to apply for expungement?

A.: If you qualify as a first-time offender for a misdemeanor offense such as shoplifing, you may apply for an expungement if one year has passed since the termination of your sentence. 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 like grand theft, you would have to wait three years after the termination of your sentence.

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

A.: Generally, you may apply for expungement in the court in which you were sentenced, or, if you were convicted in another state or in a federal court, you may apply to a court of common pleas. Once you apply for an expungement, the court will set a hearing date. You usually will work with the probation department to 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 with your life in a positive way, then the court will probably grant the expungement.

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information contained herein is general and should not be applied to specific legal problems without first consulting with one of our attorneys.

 
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