IRWIN KRAMER: Even if you beat the wrap and escape without a criminal record, there is always a record out there somewhere.
BYRON WARNKEN: And you want to get rid of it because you do not have to say "yes" if somebody says "were you ever arrested" on an employment application for example. We do not want people to be stigmatized when they would not even found guilty, so you are allowed to file in most jurisdictions a Petition for Expungement, which means "make all that stuff go away. Get rid of my arrest record. Get rid of those charges as if it never happened."
IRWIN KRAMER: You cannot get a criminal record expunged. If you are found guilty that is just not an option.
BYRON WARNKEN: For somebody who is in the criminal justice system and they are not convicted that would be a juvenile in the juvenile system. It would be somebody in the adult system where they were arrested, but never charged. They were charged, but it was dismissed. They were charged and went to trial and they were found not guilty or they got a probation before judgment. In all of those cases, there is no criminal conviction. And as long as you are not convicted, then your are not a criminal. And if you are not a criminal, you have the right, in most jurisdictions, to make all of that stuff go away.
IRWIN KRAMER: If you fall into that category, you can get the record expunged and for most purposes, but not all, we will just pretend that that little episode never occurred.
BYRON WARNKEN: And then when they ask you the question on the employment application, "Have you ever been arrested?" You and I know the answer is yes, but you come lawfully say "no". It is somewhat of a fiction, but we pretend that it never happened if you have lawfully gotten it "expunged."
The Petition for Expungement
If you've been charged with a crime, but escaped without a criminal conviction, you probably don't want to boast about your victory all over town.
Like most people, the thought that these charges may be discovered by a future employer or others isn't a pleasant one. In theory at least, you may be able to have police and court records removed from public inspection by having them "expunged."
Grounds for Expungement
You'll need to check your local listings because the expungement process varies by state. But, in general, if you have been charged with a crime, you may file a petition asking a judge to expunge your record if:
- You were found not guilty
- The charge was dismissed
- The charge resulted in probation before judgment (but many states exclude drunk driving charges)
- The prosecutor decided not to prosecute you after all (dismissing the case via "nolle prosequi")
- The judge indefinitely postponed your case (giving you what lawyers call a "stet")
- In some states, if you were convicted of only one non-violent criminal act and you were granted a full and unconditional pardon
The waiting period required for filing a petition for expungement varies by state and often depends on how your case was resolved. In most states, you can seek expungement right away if you were found not guilty or the case was dismissed, either by the prosecutor or the judge. But if you were found guilty and given a probation before judgment, or the case was placed on the inactive "stet docket," you'll probably have to wait a few years before you can get your record expunged.
Can I Get My Conviction Expunged?
In most states, you can't expunge a criminal conviction. Indeed, that's part of the price you pay for committing a crime. Of course, if you were charged and tried as a juvenile, these records are usually sealed from public view anyway and can either be formally "expunged," or, in some states, the formality is itself unnecessary by virtue of the privacy surrounding the juvenile justice system.
But Do I Still Need to Tell Them About My Arrest?
In most states, a prospective employer may not force you to disclose expunged information. But there are still some gray areas, particularly in connection with security clearances, firearm applications, and similarly sensitive situations. So, whenever confronted with a request about that skeleton in your closet, consult with a lawyer in your state who can analyze the specific facts at hand.