WASHINGTON, D.C., June 12, 2012 – A criminal record can pose problems for you later in life. However, arrests, investigations, and even some minor convictions may be eligible to be removed, based on varying state laws. The process is called expungement, and literally it means the removal of records from public inspection.
I spoke about this process on my radio show about a year ago, and a woman driving through the area heard me. She sent me an email detailing how over 30 years ago she had been convicted of a shoplifting offense, when, she said, she was “young and stupid.”
The conviction, she said, haunted her, and made her feel ashamed. I called her and gave her some information, and about eight months later I received another email from her telling me she had the conviction expunged, and that she felt she could now live her life without embarrassment from her past.
Not everyone has as simplistic a need. Employers looking into your background can find convictions; others want records erased because of a desire to become a foster care parent or to adopt a child.
Here is Virginia’s statute on this matter:
The General Assembly finds that arrest records can be a hindrance to an innocent citizen’s ability to obtain employment, and education, and to obtain credit. It further finds that the police and court records of those of its citizens who have been absolutely pardoned for crimes for which they have been unjustly convicted can also be a hindrance. This chapter is intended to protect such persons from the unwarranted damage which may occur as a result of being arrested and convicted.
Records for Minors
Many states have laws that allow, or even require juvenile records to be expunged once the child reachs a certain age. In some cases the records are actually destroyed, and in other cases they are “sealed” or hidden from public view. These laws allow for juveniles, usually when they reach age 18, to start over with a “clean slate”, and shielding them from the negative effects of having a criminal record.
Sealed or Expunged or Pardoned?
The term “sealing” is often used interchangeably with expungement. The difference is that sealing involves hiding criminal records from public view, where expunging usually means the records are completely, physically destroyed. When the records have been expunged but not physically destroyed, they remain available for law enforcement.
Further, an expungement is not a pardon. A pardon is an act of clemency from your state’s Governor, where, by Order, you are absolved of the guilt of your criminal act. You can sometimes apply for an expungement after a pardon.
Local Law
Every state has very specific procedures for removing criminal convictions from your record. Some states do not allow expungement except in very narrow circumstances. By researching the requirements (type in “expungement followed by your state in any search engine browser), the process can be accomplished without the assistance of an attorney and it is relatively inexpensive.
Locally, Maryland has “easier” standards than Virginia. Under Maryland Law, except for a limited number of minor common nuisance crimes, “guilty” convictions are not eligible for expungement. In Virginia, expungement is not available at all if you have been found guilty of any offense. The theory behind this is that expungement is an option only available to innocent persons. Read on, however, as I offer you some advice on what to do in either state.
In Maryland, you may apply (petition) for an expungement from Motor Vehicle Administration files, from police files, and from court records. Here is a list of the circumstances under which you can apply for expungement of court files in Maryland:
1. If you have been arrested and charged with a crime, including a traffic violation
for which a term of imprisonment may have been imposed.
2. If you have been charged with a civil offense or infraction as a substitute for a
criminal charge.
3. You were found not guilty.
4. You were found guilty of certain nuisance crimes.
5. The charge was dismissed.
6. The charge resulted in probation before judgment (excluding charges of driving while under the influence or driving while impaired).
7. The State’s Attorney did not prosecute (called a “nolle prosequi)” your charge.
8. The Court indefinitely postponed your case (called a “stet”).
9. Your case was compromised (settled).
10. You were convicted of only one non-violent criminal act and you were granted a full and unconditional pardon by the Governor.
In Virginia, in order to be eligible for an expungement, you must have been found “not guilty” by a judge or jury, or the prosecutor must have effectively dismissed your case (“nolle prosequi”), or your case must have been dismissed by what is known as an “accord and satisfaction.” In many “minor” types of cases, following a period of time set by the court, if you have met all the conditions, the court will dismiss the charge against you. You may then petition for expungement. Examples of offenses where this type of arrangement is found include possession of marijuana, domestic or simple assault, and shoplifting.
Guarantee?
An expungement request can be denied. If the time period required by law has not been met, your request will be turned down. Additionally, most states will deny such requests if you have more than one criminal conviction, if you have previously expunged a conviction or arrest, if an arrest is pending, if you are a registered sex offender or have been convicted of any sexual offense, and finally, if court records reflect that the case you are concerned with is still open.
Timing
The time when you can begin the process of applying for an expungement will differ from state to state. Maryland expungement petitions usually cannot be filed until three years after the conviction or completion of the sentence, including probation, whichever is later.
Now What?
My advice: If you are arrested in Maryland or Virginia for a minor offense, attempt to secure a resolution of the case that does not involve a plea of guilty. Attempt to resolve the case so that the disposition of the matter is postponed, subject to dismissal at a later time if you behave until then. When this type of resolution is secured, later, your chances for the matter being expunged are much improved.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics. Paul is the featured legal analyst on the Washington Times Radio, on the Andy Parks show, on Wednesdays at 5:15 P.M., and he is a columnist on the Washington Times Communities.
His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.
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