What Is Expungement, and How Do I Get My Record Expunged?

| by Max Soni

Last Updated on: 2nd October 2023, 05:32 pm

Overview of Expungement

Expungement is the process of sealing criminal records from your history. An expunged case will not show up on most background checks, allowing you to truthfully claim you don’t have a record.

There are a few ways to get an expungement:

• Dismissal after probation: If you successfully complete probation, you can petition the court to dismiss the charges. This is the most common type of expungement.
• Acquittal: If you were found not guilty, you can petition to seal the arrest record.
• Finding of factual innocence: If new evidence proves you were wrongly accused, you can ask the court to declare you factually innocent and expunge the entire case. This is difficult to obtain.
• Certificate of rehabilitation: After a long period of good behavior, felons can apply to the court to have their conviction dismissed. This also requires the governor’s pardon.

No matter the reason, expungement is a complicated legal process with strict eligibility rules. Hiring a lawyer greatly improves your chances of success.

Benefits of Expungement

Having a record—even for minor offenses—can seriously damage your life prospects. Expungement offers a chance to wipe the slate clean by removing cases from your criminal history.

Benefits include:

• Employment: Many employers do background checks and won’t hire anyone with a record. Expungement lets you honestly claim you have a clean slate.
• Housing: Landlords often check applicants and may deny housing because of past convictions. Expungement removes this barrier.
• Social stigma: An arrest or conviction carries social shame and judgment. Expungement helps escape the stigma of a record.
• Immigration: Any criminal record can jeopardize an application for legal immigration or citizenship. Expungement eliminates this risk.
• Loans and education: Past convictions can prevent you from getting school loans, business loans, and professional licenses. Expungement removes these roadblocks.
• Gun rights: Felonies result in a lifetime ban on gun ownership. Expungement may restore your Second Amendment rights.

As you can see, clearing your record through expungement opens up tremendous opportunities that may otherwise be denied because of past mistakes.

Eligibility for Expungement

Many states have strict eligibility rules for expungement based on your specific criminal history. In general, you may qualify if:

• You completed probation successfully. Probation cases are the most common expungements.
• You were arrested but never charged or convicted. Records of dismissed cases can also be sealed.
• You were acquitted or found factually innocent. These rare outcomes allow total expungement.

Certain convictions, however, disqualify you from sealing your record:

• Serious violent felonies: Charges like murder, kidnapping, and sex crimes cannot be expunged under California law.
• DUI offenses: Convictions for drunk driving usually cannot be dismissed or expunged.
• Sex offender registration: If you must register as a sex offender, you are ineligible for expungement.

There are also waiting periods you must observe before petitioning the court:

Misdemeanors: You must wait 1 year after the case ends.

Felonies: You must wait 3 years after completing probation.

If you aren’t sure whether you qualify, it’s best to consult an attorney experienced in expungements. The rules are complex, but an expert can review your history and advise if expungement is possible.

The Expungement Process

Here is a basic overview of how to get your record expunged:

1. Determine eligibility: Review the rules above to see if you qualify for dismissal or expungement. If unsure, consult a lawyer.
2. Obtain records: Get copies of your complete criminal file from the DOJ and FBI. This documents your history.
3. File petition: Prepare and file a Petition for Dismissal in the county where you were convicted. This requests a court hearing.
4. Court hearing: If the judge determines you qualify, they will order your record expunged. Both sides can present arguments.
5. Serve expungement order: Provide copies of the court’s expungement order to the DOJ, FBI, and other law enforcement agencies.
6. Verify record clearance: Obtain new background checks showing the cases are dismissed from your record. This proves the expungement worked.

While it may sound straightforward, each step contains numerous procedural hurdles. Having an attorney handle the intricacies greatly boosts your chances of succeeding.

Finding an Expungement Lawyer

Because expungement is so complex, hiring an experienced criminal defense lawyer is strongly advised. Avoid cheap online services—this is not a DIY undertaking.

What should you look for in an attorney?

• Expertise with expungements: Look for someone who focuses specifically on record clearing and sealing. This area has unique rules.
• Local knowledge: Each county may have different judges, prosecutors, and processes. Find a locally-based lawyer familiar with your courts.
• Affordable fees: Expungement lawyers generally charge flat rates from $1,000 to $3,000 depending on the complexity of your case. Compare rates carefully.
• Proven results: Choose an attorney who can provide case examples and stats on their expungement success rate. This demonstrates ability.

Getting a lawyer on your side greatly improves the odds your petition for expungement will be approved. Don’t leave your future to chance—consult an expungement attorney as your first step.

Common Defense Strategies in Expungement Hearings

If the prosecution objects to your expungement petition, an evidentiary hearing will be held. Your lawyer may argue several defenses to convince the judge to grant expungement:

You Have Been Rehabilitated

A key criteria courts consider is whether you have been rehabilitated and stayed out of trouble. Your attorney can present evidence like:

• Completion of probation: Finishing probation without violations shows you’ve changed.
• Education and training: Earning a degree or certification proves positive life changes.
• Employment history: Steady legitimate work demonstrates responsibility.
• Community service: Volunteering and charity work helps overcome past mistakes.
• Letters of support: Testimonials from employers, teachers, clergy, and community leaders.

The more evidence that you are now a positive, contributing member of society, the better your case for expungement.

The Conviction Was an Aberration

Your lawyer may also argue your offense was out of character and not likely to recur. Possible arguments include:

• Age at time of offense: Youthful mistakes may not define your current character.
• False accusations: If there is evidence you were wrongly accused, emphasize this.
• Unique circumstances: Special conditions like trauma, addiction, or poverty may have triggered the behavior.
• Single offense: If the conviction was an isolated incident, it may not be predictive.

The goal is persuading the judge this offense doesn’t reflect who you are now, and that expungement is appropriate.

The Punishment No Longer Fits the Crime

Your attorney can contend that the lingering stigma of a conviction is unfair punishment given the nature of the offense. Arguments may include:

• Nonviolent crime: The offense didn’t harm others.
• No repeat problems: Highlight if it was a one-time lapse of judgment.
• Impact on family: Explain the difficulties a record causes for your family relationships or parenthood.
• Loss of opportunities: Note careers and benefits a record could exclude you from.

Essentially, you want to convince the judge the punishment now outweighs the crime. Expungement brings back balance.

An experienced lawyer can craft the best defense strategy for your situation. With persuasive arguments and evidence, many petitions are granted.

What Are the Penalties If My Petition Is Denied?

If your petition for expungement is denied by the court, there is no additional criminal penalty. The existing conviction or charges will remain visible on your record just as before.

However, there are still consequences to a failed petition:

• Wasted legal fees: You will have paid attorney fees without achieving the desired result.
• Longer waiting period: After a denial, you must wait an additional year before requesting expungement again for a misdemeanor, or three years for a felony.
• On-going stigma: The benefits of a clean slate are put off longer, which may cost you job opportunities, loans, and other life goals.
• Lost credibility: A denied petition may harm your perceived credibility and sincerity if you seek expungement again later.

To avoid wasted time, effort, and money, it is critical to work with an attorney skilled in overcoming objections and winning expungement cases. With expert legal advice, you have the highest probability of success on the first try.

Other Potential Legal Remedies

If your specific history makes expungement impossible, there may be other remedies to lessen the burden of a record. Possible options include:

Reducing Felonies to Misdemeanors

For some felony offenses, certain states allows courts to reduce the conviction to a misdemeanor. This can also shorten probation periods.