Anyone who has a misdemeanor on his record would do well to look into the process of expungement. Even though a misdemeanor is a lesser crime than a felony, having any kind of a criminal record can create challenges down the road. In some cases and in some jurisdictions it is possible for someone arrested for, or convicted of, a misdemeanor to have it expunged from his record.
Consequences of Having a Misdemeanor Charge
Misdemeanors are not the most serious crimes. Those are called felonies and include charges like burglary, rape and murder, which can result in a sentence of life in prison. Misdemeanors are usually defined as those crimes that carry a maximum sentence of a year in county jail.
Yet the consequences of having been arrested or convicted of a misdemeanor can be very detrimental. Many employers ask job applicants whether they have ever been arrested or convicted of a crime, and, in this context, crime includes misdemeanors. Similarly, a landlord can ask a prospective tenant about her criminal record. Some employers and landlords might decide against selecting someone with a criminal history.
Expunging a Misdemeanor
Anyone who has a misdemeanor charge on his record should look into the expungement rules in his state. Most states have laws providing for some sort of expungement, the process of sealing arrest and conviction records. The details and procedures differ among states, but in most jurisdictions, an expunged arrest or conviction need not be disclosed to anyone including potential employers or landlords who ask about a criminal record.
For example, if someone was convicted of shoplifting and was able to expunge the conviction, he can legally tell a prospective landlord that he does not have any criminal record. That is true as well if a misdemeanor arrest is expunged.
Note that some states only allow for expungement if someone was acquitted of a charge or the charge was dismissed. In other states, only convictions that occurred while someone was a juvenile can be expunged.
Process for Expungement
Every state has its own rules about what crimes can be expunged and who is eligible to apply for expungement. Anyone considering expungement should check with the criminal court in the jurisdiction or the local law enforcement agency that handled her case. She should first find out whether her state offers expungement. Most states do, but a few, like New York, do not.
Next, she should find out if the particular charge on her record is eligible for expungement and whether she is eligible to apply. Usually anyone who was charged and acquitted of a crime, had charges against her dropped or was granted a pardon will be eligible for expungement. A first-time offender convicted of a misdemeanor may also have records expunged in many states, but sometimes she becomes eligible only if she completes her sentence, including probation.
Assuming that a person learns that her misdemeanor conviction can be expunged and that she is eligible for expungement, she should get information on the expungement application process. In most states, the court provides forms to be filled out, motions or petitions for expungement. Fingerprints are often required. The court will consider the request and may grant it if it finds expungement in the interests of justice.
Read More: How to Petition the Court for an Expungement
Consequences of Expungement
It's nice to think of expungement as simply making the criminal charge vanish, but this is not the case.The records do not simply disappear and they are not destroyed. Instead, the records are removed from public access and sealed.
Does this mean that the records of arrest and conviction are gone forever? Not necessarily. While landlords and employers are not able to access the expunged records, law enforcement agencies are still able to see them. And in some states, licensing boards can also see the expunged criminal records of applicants.
- Once the form is filed, it is up to the court to decide whether to grant your petition. Provide the court with any documents that will help it make its decision (such as evidence of volunteer work, affidavits that testify about your good character, etc.).
- The law often changes and is filled with potential pitfalls for those seeking to handle their own legal problems. This article is not intended to provide you with legal advice. You are strongly encouraged to seek the assistance of an attorney in your area.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.