State expungement
Eligibility for an expungement of an arrest, investigation, detention, or conviction record will be based on the law of the jurisdiction in which the record was made. Ordinarily, only the subject of the record may ask that the record be expunged. Often, the subject must meet a number of conditions before the request will be considered. Some jurisdictions allow expungement for the deceased.
Requirements may include one or more of the following:[6]
- Fulfilling a waiting period between the incident and expungement;
- Having no intervening incidents;
- Having no more than a specified number of prior incidents;
- That the conviction be of a nature not considered to be too serious;
- That all terms of the sentence be completely fulfilled;
- That no proceedings be pending;
- That the incident was disposed without a conviction; and
- That the petitioner complete probation without any incidents.
Types of convictions that are often not eligible for expungement include:[6]
- Murder
- Felonies and first degree misdemeanors in which the victim is under 18 years of age
- Rape
- Sexual battery
- Corruption of a minor
- Sexual imposition
- Obscenity or pornography involving a minor
- Serious weapons charges
Most jurisdictions have laws that allow the expungement of juvenile records once the juvenile reaches a certain age, and some states have automatic expungement procedures for juvenile records. In some cases, the records are destroyed; sometimes they simply are "sealed." The purpose of these laws is to allow a minor who was accused of criminal acts, or in the language of many juvenile courts, "delinquent acts," to erase his record, typically at the age of 17 or 18. The idea is to allow the juvenile offender to enter adulthood with a "clean slate," shielding him or her from the negative effects of having a criminal record.[7]
States have taken significantly different approaches when it comes to expungement for controlled substance violations such as marijuana and hashish. Typically, only convictions of possession or possession with the intent to distribute are eligible for expungement. Factors such as the weight/amount of the particular substance, age of the offender, and the number of offenses may impact eligibility for expungement as well. For example, in New Jersey, the threshold is 25 grams for marijuana and 5 grams for hashish if the offense occurred when the offender was 21 years of age or younger.[8]
Procedures for obtaining an expungement are different in each state, but tend to follow a similar process:
- The petitioner verifies his or her eligibility for expungement under state law;
- The petitioner prepares a petition for expungement, often using a standard petition form;
- The petitioner files the petition with the court where the conviction occurred, and serves copies of the petition on other interested parties such as the prosecutor's office;
- The court holds a hearing on the petition to verify that the petitioner is eligible for expungement and that the grant of expungement is proper;
- The court issues an order either granting or denying the petition.
California
California's expungement law permits someone convicted of a crime to file a Petition for Dismissal[9] with the court to re-open the case, set aside the plea, and dismiss the case.[10] In order for one to qualify for expungement, the petitioner must have completed probation, paid all fines and restitution, and not currently be charged with a crime.[10] If the requirements are met for eligibility, a court may grant the petition if it finds that it would be in the interest of justice to do so.[10] A successful expungement will not erase the criminal record, but rather the finding of guilt will be changed to a dismissal.[10] The petitioner then can honestly and legally answer to a question about their criminal history, with some exceptions, that they have not been convicted of that crime.[10] What is actually stated on the record of the case is that the case was dismissed after conviction. If the petitioner is later convicted of the same crime again, then the expungement may be reversed.
Persons who serve sentences in the state prison system for felony convictions must apply to the Superior Court for a Certificate of Rehabilitation (CR).[11] The CR does not remove or expunge anything negative from the individual's record; however, it places something positive on it. Among other requirements, the applicant must live in California and have done so for at least 5 consecutive years prior to applying, and been law-abiding for 7 years starting from the sooner of their release from prison or court supervision. After they meet all requirements and receive a CR, certain rights of theirs are restored[12] and a request for a pardon is automatically sent to the governor.[13]
California Penal Code 1203.4[14] allows most types of convictions may be expunged. To qualify, the person must have completed probation, satisfied all financial obligations, not currently be facing charges or court supervision, and not have been sentenced to prison or parole.
California law allows an individual to reduce a "wobbler" offense[15] from felony to misdemeanor, which will effectively restore firearm rights, provided that the individual has not been convicted of another felony or has not lost his or her firearm rights for another reason.
Juvenile criminal court records remain unless the individual petitions to have them sealed. This may be done when they reach their 18th birthday,[16] even though some states provide for automatic expungement of certain juvenile records regardless of age.
