Discussing expungement with a potential client has always been difficult because in most instances I was not giving them good news. For the longest time, a person could have an adult criminal conviction expunged if:
- The individual had reached 70 years of age and had been free of arrest or prosecution for ten years following final release from confinement or supervision.
- The individual had been DEAD for three years.
- With regards to a summary conviction, that conviction could be expunged if the individual had been free of arrest or prosecution for five years following the conviction of that offense.
As of November of 2016, that situation has changed. It appears the legislature finally acknowledged the impact the above rigid expungement policies were having on otherwise law abiding citizens as they tried to move on from one mistake to become productive members of society. As a result, the following offenses can be sealed under the following circumstances:
- Misdemeanors of the 2nd Degree
- Misdemeanors of the 3rd Degree
- Ungraded Misdemeanors (Punishable by no more than two years in prison)
- Simple Assault offenses graded as a Misdemeanor of the 3rd Degree
The legislature has indicated an individual must wait until they have been free of arrest or conviction following release from confinement or supervision, whichever is later, for period of ten years. That means, in most instances, the clock does not start on the ten year time period until your probation has been completed. Not when you were arrested or when you were sentenced. Rather when you served your entire probationary sentence.
The legislature has indicated a person will be ineligible to get one of the above offenses sealed if he or she has EVER been convicted of:
- Simple Assault (unless graded as a Misdemeanor of the 3rd Degree)
- Any Misdemeanor of the 1st Degree or Felony
- Four or more Misdemeanors of the Second or Third Degree
- Any offense that requires registration as a sex offender
- Other less common offenses specifically identified by the legislature
Juvenile offenses are treated differently that adult offenses, making them much easier to expunge. Why?
It is well established that we view the indiscretions of minors very differently than we do the indiscretions of adults. As a result, so long as an individual has remained crime free for an extended period of time (generally five years) after all aspects of the juvenile disposition has ended, the option exists to get most charges expunged. Notice I said most because there are some charges that are not able to be expunged, specifically some serious offenses which involved sexual misconduct.
A pardon is an act by the Governor to remove a conviction from a person’s criminal record. Generally, it is the only way to remove felonies and serious misdemeanors from your record.
As a general rule of thumb, it will be extremely difficult to obtain a pardon unless the person has been out of trouble for an extended period of time. And, once a person starts the pardon process, it can take many years for the pardon process to run its course, either favorably or unfavorably.
As one might expect, this is not an exhaustive list of the things you should be aware of as you navigate through the judicial system with the hopes of having a prior conviction expunged, sealed or pardoned.