Monday, April 11, 2005

What is Expungement?

Basically, expungement is the sealing of a person's criminal record. The expungement process does not erase the criminal record, but simply seals the record from public view. All copies of the record are shredded and erased from databases except for a sealed copy kept at the office of the Supervisor of the State Bureau of Identification. 11 Del. C. §4373. The sealed records can then only be viewed by a court or by "law-enforcement officers acting in the lawful performance of their duties...or for the purpose of an employment application as an employee of a law-enforcement agency." 11 Del. C. §4374.

Why is this important? Because a criminal record can hurt an innocent person's opportunities to gain employment, education, and credit. By expunging a criminal record, potential employers, schools and lenders aren't able to learn of an innocent person's past arrests.

Who is eligible for expungement? 11 Del. C. §4372 sets out three specific circumstances where expungement of a Delaware criminal record can be expunged. The first is when a person is acquitted (found not guilty) of a crime. The second is when a nolle prosequi (the state decides to drop the charges) is entered. The third is a dismissal by the Court. If any of these three circumstances occurs, the person charged is eligible to petition the Superior Court for an expungement. The petition and the proposed order ask the Court to expunge the record. It is up to the Superior Court to review the petition and decide if the expungement shall be granted or not.

If a person has an old conviction, can a new acquittal be expunged? No, if there are any convictions on a person's record, then the record cannot be expunged. A record is expunged so that an innocent person will not be hindered by an arrest record. If someone is found or pleads guilty, the damage is already done.

When should an expungement petition be filed? As soon as possible. A petition for expungement of criminal records should be filed right after the person becomes eligible either by acquittal, nolle prosequi, or dismissal. This way, the potential creditors or employers who would be able to see the record is kept to a minimum.

Even after an expungement is granted, it is still a good idea to have a criminal record search done a few months later to make sure the expungement process was completed. If the expungement has been successful, no record will be found.

Generally, while the drafting of a petition for expungement can be complicated, expungement is a relatively simple and inexpensive process. The problem is that many people and their lawyers are so happy to be done with a criminal case that they forget all about expunging the record. A criminal record is something that most people don't think about until it comes back to haunt them. An expungement is a relatively easy way to alleviate those headaches down the line.

NOTE: This post refers to expungement for criminal records of adults. A post on expungements for juvenile records will be coming soon.

Here are a few expungement related articles on celebrities:
First daughter, Jenna Bush
Basketball star, Allen Iverson
Pop singer and talent judge, Paula Abdul

UPDATE 5/16/05

In response to my entry of 4/11/05 about expungement, we received an email from John Sandy, Esquire of Stumpf Vickers & Sandy, P.A. in Georgetown, Delaware. He notes that when there is a previous conviction, it is still sometimes possible to get a new criminal charge expunged. He says in part:

4373 (a) states that the existence of the previous conviction is "prima facie" evidence that dissemination of information relating to the arrest to be expunged does not constitute a manifest injustice to the petitioner. Prima facie evidence is conclusive on the issue unless rebutted.

In my own practice, on several occasions, when the previous conviction was remote in time and/or considerably different in degree or nature, I have been able to convince the DOJ not to oppose the motion or the court of the "manifest injustice" over the State's objection. Within the past year I had a young lady turned down for a job with the Dept. of Corrections (I didn't think that they turned anyone down) on the basis of an arrest for Assault 3rd on her boyfriend. That charge was subsequently dismissed but because she had had an Under Age Consumption on her record 3 years earlier the DOJ opposed the motion. When I produced the letter from DOC stating that it was the assault arrest that kept her from being hired and pointed out that this was not a plea bargain where she pled to the alcohol charge in return for a dismissal of the assault, the DOJ withdrew its objection (but noted the previous conviction in its response to the court). The court granted the motion knowing that she had previously been convicted.

Another point that was not addressed in my previous entry, but that Mr. Sandy brought to my attention is that when a person is involuntarily committed to a mental hospital in Delaware, it is noted on that person's record and can be viewed by anyone with access to the criminal record. However, these records can also be expunged. Mr. Sandy writes:

I have twice been successful in having the "Mental Patient" notation removed (sealed) from the SBI record. In both cases SBI itself vehemently opposed and the DOJ took up their position. The cases, about 5 years apart, were nearly identical. Both involved young women applying for jobs that required a background check. As I recollect, they were both applying for teaching positions. At the time of their petitions both were in their mid twenties. In each case, when they were 15 or 16, they threatened (but did not attempt) suicide over breakups with boyfriends. In both cases, alarmed parents enlisted the aid of the State Police and 72 hour commitments were procured. Both girls were released before the 72 hours elapsed and neither ever had any other problem. Clearly, a background check would have been severely detrimental to their teaching careers. A reading of the statue clearly stated that "adult" commitments were to be reported. Despite the fact that the records should never have been made available to SBI the State opposed sealing the record. In both cases the court (Graves in one and Bradley in the other) granted the motion. I am surprised that some of the mental health advocates have not taken up the issue of the inclusion of this information in the SBI records.

Thank you Mr. Sandy for your insights.

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