What You Need To Get a Criminal Record Expungement

When you’re charged with a crime, your life has changed forever. Even an arrest on your background check can affect your ability to be employed, manage your credit score, or find stable housing.

For people with prior criminal convictions, there are plenty of reasons to consider having their criminal records expunged or sealed. Eligibility for expungement varies by state. To find out about how you can clear up your criminal history, consult a local criminal defense attorney.

What Your Criminal Record Shows

“You never want a case, whether it’s recent or from the past, to affect your future opportunities,” says Illinois-based criminal defense attorney Matthew M. Fakhoury, who has handled thousands of expungements.

“A common kind of situation that comes about involves employment. Somebody’s applying to get a job, especially in the weird times that we’re in, and suddenly an arrest comes back to haunt them from 15 years ago — some relatively minor indiscretion when they were in their late teens or in college.”

Fakhoury says sometimes people think their record will be clean if they have a misdemeanor or felony case that was dismissed. “That’s a huge misconception,” he says. 

“This becomes an issue when the employer is deciding between two candidates,” says New York criminal defense attorney Elena Fast. “Employers can’t discriminate against you under New York laws for having a criminal record. However, at the same time, the employer may find a pretextual reason to offer the job to somebody else because they’re worried about something in your past.”

What’s more, says criminal defense attorney Andrew Stengel, “If you’re convicted of a misdemeanor and the case is not sealed, anybody can go to the courthouse and get the record and find out about it.”

“So, people will get passed over because of that,” says Katelyn H. Juerling, a litigator at Norris Choplin Schroeder in Indianapolis. “After you’ve had an expungement, you’re allowed to say, with limited exceptions, ‘I’ve never been convicted of a crime.’ And employers are not able to discriminate against you because of a prior conviction.”

State Expungement Laws

Expungement eligibility varies by state. Some states take a hard stance against granting expungement orders. Other states provide a way to clear up misdemeanor convictions after a waiting period. Consult a local criminal lawyer to understand the expungement process in your state.

Illinois Criminal History Record Expungements

For example, Illinois provides a way for many people to clear their criminal records. “Basically, the general rule is if your case was dismissed, or if you received a qualified probation—what we call a special probation—or if you received supervision, your case is eligible to be expunged,” says Fakhoury.

“There are some exceptions, such as DUIs, domestic cases, and a few other types of cases, where you cannot get the case expunged. But any finding of not guilty, which is an acquittal or a dismissal, no matter what the charge was, is eligible to be expunged.”

Record Expungement in Indiana

“Up until about 2011, the only expungement we had was for false arrest, basically,” James D. Crum says of Indiana expungement law. “Our legislators in the early 2010s felt there were too many people out there whose background checks were causing them problems. They have learned from their mistakes and have been crime-free. So now they have an expungement law that allows us to expunge most convictions, not all, and any arrests that didn’t result in convictions.”

A criminal history — especially a felony conviction — can cause a person significant hardship when it comes to housing and employment opportunities. Nearly 90 percent of American employers currently conduct some form of background check on job applicants, and 60 percent of formerly incarcerated people report being unemployed one year after their release.

Indiana now offers people a way to clean up their criminal record. Under state law, conviction records can be sealed and expunged when certain criteria are met.

“Most misdemeanors and Level 6 felonies, which are the lowest class felony in Indiana, are going to be eligible as long as they’ve had a long enough period of being crime-free and paid their court costs,” Crum says. “That’s really all it boils down to.”

Higher-level felonies are also eligible, Crum adds. However, their expungement is at the discretion of the court. “The waiting period is longer, and the expungement itself is up to the judge,” Crum says.

Sealing Records in Massachusetts

“It’s a fairly liberal statute, and a lot of people don’t realize how easy it is to get a fresh start,” says Michelle R. Peirce, a criminal defense attorney with Hinckley Allen in Boston, “which is the whole point.”

“It’s largely removed from their record, other than for law enforcement purposes and some employers,” Peirce says of sealed records. “It can’t be retrieved in most employment circumstances. You’re allowed to respond, when asked on an application, something to the effect of ‘no record of conviction.’ The hope is that it allows people to get out from under the weight of their history and get a fresh start.”

Similarly, you can legally refuse to disclose a sealed conviction if questioned about it. And although the records remain accessible to law enforcement, a sealed conviction cannot be used as evidence to convict you of a future crime, although it may be considered as part of sentencing following a new criminal case conviction.

Minnesota Expungements

In Minnesota, expungement is also known as clearing a charge or sealing a criminal record. Before getting involved in the lengthy process of expungement, be certain that the charges attempting to be cleared aren’t excluded.

Statutory expungement is prohibited for offenses requiring predatory offender registration. But there is the opportunity to seek expungement under the “inherent authority” of the court. This would clear criminal court records of that specific charge, though not a law enforcement agency’s arrest records.

Sealing Court Records in New York

Unlike some states, New York doesn’t allow the expungement of your police and court records except in certain cannabis-related crimes. However, thanks to a new state sealing law, you can apply to have the public record sealed from the general public, employers, and colleges. (If you were a child or youthful offender, your records are automatically sealed from the general public.)

“So many people don’t know about this,” says Fast. “They go about their lives, and they think, ‘Oh, it is what it is. I was young and irresponsible. It’s just my stripes.’ But I really think if people have convictions, if they have something in their past, they should either consult an attorney or they should look at the application online and see if their case qualifies.”

New York’s “Clean Slate” act automatically seals most convictions after a set waiting period, but older or ineligible cases may still require you to submit a sealing application to the judge who sentenced you. Requirements for the application include:

•  A minimum of 10 years from your sentencing or release from prison (whichever is later).
• Two or fewer convictions on your criminal record.
• No pending charges. 

Most convictions for sex crimes and violent felonies are not eligible for sealing, though there may be specific exceptions or conditions under which certain offenses could be considered.

What the Expungement Process Involves, and What You Need

Reach out to an attorney to begin the expungement process. Share the basics on your case, including:

• Which police department arrested you
• The date it happened
• How the case turned out
• If you have anything else on your record (criminal convictions, arrests, juvenile records, etc.)
• If you have any other pending cases

“And lastly, where did this case occur?” Fakhoury adds. “Did it occur in Chicago? Did it occur in one of the suburbs? Which county did it occur in? All of those will factor into what the attorney needs to do, where they file, and the timeline of when this will get resolved. Every county is a little different. Even Cook County has several jurisdictions.”

The Process of Expungement Varies by Jurisdiction

Expungements can also vary by jurisdiction within the state, depending on the arresting agency. “I used to be a prosecutor in Cook County, and ironically, I was doing expungements,” he says. “Even when I was a prosecutor, there was a delay of about 9 or 10 months. Now it’s well over that. So I think Chicago is just overwhelmed, and they have fewer resources and staff.”

Following a successful expungement, you may generally be able to legally answer “no” when a job or housing application inquires if you’ve ever been arrested. 

“That’s a common question,” Fakhoury says. “People say, ‘Am I lying if I answer no? Will there be a problem?’ And legally, no.”

The Difference Between Expungement and Sealing

While both expungement and sealing will prevent the public from accessing your record, there’s a key difference. “Under criminal law, expungement means to erase or delete the record from the court records, from the local police department that arrested you, and the state police,” says Fakhoury.

Meanwhile, sealed records have not been deleted. They’re hidden from the public, but the criminal justice system still has access to them.

Get Started on Sealing Your Criminal Charges

First, gather your criminal record and fill out a court form for self-help expungement. Gather affidavits from those supporting your petition, and ensure you send them with proofs of service to all applicable law enforcement agencies, the clerk’s office, and the individuals involved in the court case. The court will set hearing dates and schedules for you to follow.

“I would not advise you to do it on your own,” Crum says. “It requires very specific statutory language, and it can be a major risk … in Indiana.” Indiana law limits individuals to one lifetime expungement petition, which must include all convictions the petitioner seeks to expunge.

Crum has successfully represented clients for expunged records who were later arrested for another crime. “Unfortunately, they can’t expunge that new case,” he says.
For more information on criminal law, contact a criminal defense lawyer for legal advice and to discuss how to seek a clean slate.