A criminal record is like a millstone around the neck, possibly dragging someone down in every area of their life. Finding a job is harder. Finding a place to live is harder. Attaining professional licensing or even student loans is harder. And, of course, a criminal record will have to be explained to friends or family. Fortunately, there is often a way to dull the impact that a criminal past has on a person’s life. Pursuing an order for expunction or nondisclosure for qualifying offenses can clear a person’s criminal background, allowing them to move on from the offense and with their life.
What qualifies someone for expunction or nondisclosure?
First, what’s the difference between expunction and nondisclosure? Here’s a brief look at both:
- Expunction – Expunction means all records related to the arrest in question are eliminated outright. They are literally destroyed, with law enforcement agencies compelled to shred any documents relevant to the arrest. Expunction allows people to legally claim they were never arrested for the offense, and may even claim so while under oath. Expunction cleans a record for all intents and purposes.
- Nondisclosure – Nondisclosure means all information related to the offense in question is sealed from public record. While state and federal law enforcement and other licensing agencies can still access the record, the public and background search companies will not see the offense. This is particularly advantageous when seeking employment or residence.
Neither expunction nor nondisclosure are automatically granted, and anyone attempting to clear their record will have to petition a court to do so. And keep in mind that if there are multiple offenses that are eligible for expunction and nondisclosure, separate petitions are required. But before a petition can be filed, several conditions must be met. They include:
- The offense in question must be a qualifying one. To qualify for expunction, the offense in question must have been dismissed by a prosecutor or tried to a not-guilty verdict. Someone may also expunge any municipal or JP court case that has successfully gone through the deferred adjudication process.
Many crimes may be nondisclosed following successful completion of deferred adjudication probation and other limited circumstances, but some are permanently ineligible. Those include driving, flying or boating while intoxicated, any crime that requires registration with the sex offender registry, violation of court orders related to family violence, sexual assault, sexual abuse, stalking or trafficking, aggravated kidnapping, murder, capital murder, injury to a child, injury to a disabled person or injury to an elderly person.
- The offender has completed the deferred adjudication process. Deferred adjudication involves making a no contest or guilty plea. The offender agrees to meet certain conditions ordered by the court within a given time period. Deferred adjudication probation, if successfully completed, does not result in a conviction.
- The offender does not have a disqualifying criminal history. An offender may successfully complete deferred adjudication but become subsequently ineligible by reason of committing a disqualifying offense later.
- A certain amount of time must have passed since completing deferred adjudication. Some crimes that have passed through deferred adjudication are eligible for nondisclosure immediately, and some only after two years. They include family offenses, kidnapping, sexual offenses, assault, disorderly conduct or a weapons offense. Eligible felonies may only be nondisclosed after five years have passed from the completion of deferred adjudication.
- The offender must not commit another crime during a special time period. This period starts immediately once the offender is put on deferred adjudication, and it ends once the aforementioned waiting period expires. Fine-only offenses do not violate this condition.
Petitioning for expunction or nondisclosure is not an automatic process. Once the offender has filed the correct petition naming the specific government agencies which will be affected by the court and after paying the accompanying filing fee, they have to prepare the correct order related to the request and may need to attend a hearing. Some orders can only be granted if the court finds it is in the best interest of justice.
Because this is a delicate process that requires precision and tact, it is best done with the help of a knowledgeable attorney. An attorney will ensure that all documentation is filed properly and that if a hearing is required, they will be prepared to represent the petitioner in a professional manner.