Arrested Development, Part 3: Can you erase your criminal record?

EXPUNGE is when the criminal record is destroyed. If the Court grants a Petition to Expunge, the State Attorney's file, the arresting agency's reports and files, the Clerk of Court's records, and the jail records should be destroyed.  Additionally, a petitioner's photograph is removed from the jail's internet website and all information is removed from the Clerk of Court's website.

A person is eligible to have a criminal record expunged ONLY in the following circumstances:    

• Applicant was arrested but never formally charged by the State Attorney's Office.
• Applicant was arrested and formally charged, but the charge was later dismissed or "nolle prossed" (dropped) in Court.
• Applicant was arrested, charged, but entered into and successfully completed a pre-trial diversion program (i.e. PTI, MIP, or DVI), which ultimately resulted in the case being dismissed by the Court.
• In all of the above three scenarios, the applicant MUST have no other Adjudications of Guilt (convictions) on their record.  (For example, 25 years ago John was convicted of a misdemeanor DUI.  Since then he has had no run-ins with the Police.  But, John is arrested today for grand theft.  Tomorrow, the police release John saying they made a mistake and no grand theft charges are filed against John.   Unfortunately, John would NOT be allowed to get this grand theft arrest expunged because of his prior misdemeanor DUI conviction from 25 years ago.)   

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A record which is SEALED by the Court is not destroyed but placed in an envelope and sealed shut. The envelope cannot be legally opened without a Court order. If a record is sealed, a petitioner's photograph is removed from the jail's internet website. The Clerk of Court's file is also sealed and all information about the case is removed from the Clerk of Court's website.  

A person is eligible to apply for a sealing ONLY in the following circumstances:

• Petitioner was arrested, formally charged, pled guilty or no contest to the charge and was sentenced to a WITHHOLD OF ADJUDICATION OF GUILT by the Court.
• If the Petitioner receives a Withhold of Adjudication and is sentenced to probation by the Court - and successfully completes the probation, the petitioner may seek to have that record SEALED.
• There are certain offenses that are never allowed to be sealed, even if the applicant received a withhold of adjudication. Some of these offenses include, but not limited to, sexual offenses, offenses against children, other violent offenses, and drug trafficking charges.
• As noted above, if you have ever been convicted, you are not eligible to have any case sealed or expunged.  

With both the Expunge and Seal petition process, there are other reasons why you may not be eligible or why your Petition may be denied.  Additionally, you can only have a Petition to Seal or Petition to Expunge granted once per lifetime and you can only choose one date of offense to have sealed or expunged. 

(Click on www.fdle.state.fl.us  or our website www.andrewshein.com for more detailed information). 

As you can see, the eligibility requirements and the petition process can be very intricate and confusing.  You may wish to consult an attorney to help determine whether you are eligible to have your record sealed or expunged.  Afterwards, you may choose to Petition to Seal or Expunge your record on your own.  However, the process can be very time consuming, confusing, and stressful.  I have helped many clients to first, determine their eligibility; second, file the petition with the correct supporting paperwork; and finally, I explain exactly what they can and cannot say about their criminal record.  As your attorney, I have handled scores of petitions to seal or expunge which makes the process stress-free for my clients.   

I would be happy to discuss with you whether you are eligible to apply for a Petition to Seal or a Petition to Expunge and if eligible to help you through the Petition process.

ARRESTED DEVELOPMENT Part 2: Collateral Consequences of an Arrest

Aside from the obvious consequence of being arrested, (i.e., going to jail) there are many other potential "hidden" consequences of an arrest. Here are a few of them:

TRANSPORTATION: some arrests and criminal convictions will result in your driver's license being suspended, and I am not just talking about DUI arrests. Even misdemeanor drug offenses (possession of marijuana or possession of drug paraphernalia) can carry lengthy license suspensions. Clearly, not having a driver's license could affect one's ability to get to work, keep their job and earn money to support themselves and their family. Not having a driver's license would create HUGE problems for a parent who drives their child to and from school or to various activities.   

JOBS. Especially in this down economy and tough economic times, employers have an abundance of applicants to fill an open position. As such, employers often will not "take a chance" on a potential employee who has a criminal record vs. a similar potential employee with a clean record. Additionally, many employees are learning that if and when they apply for a promotion within their company a new background check is run which may turn up a previously unknown arrest. This is especially true for an employee who has been with the same company for many years and no new background checks have been conducted in years.

LIVING: Many people who live in apartment complexes have realized that their prior arrests/criminal convictions (even for misdemeanors) resulted in them being DENIED the ability to rent an apartment or live where they want to live. Most apartment complexes are running detailed background checks on potential renters and DENYING applications because of prior arrests. Furthermore, if you live at an apartment complex and get arrested on site, apartment complexes have often terminated the lease and kicked renters out of their apartments for safety and liability reasons.

REPUTATION: In Hillsborough and local counties, the Sheriff's Office and Clerk of Court websites post arrest and case information, including photographs of each person arrested and some details of the arrest including the crime charged. There are also private companies who have created internet based businesses to make money off your arrest. Mugshots.com is an example of this type of company as each day they post the "mugshot" photos of those arrested. When anyone searches your name or a name similar to yours on any of the search engines (Google, Yahoo, Bing) those search engines may and often will attach links to Mugshots.com with links to your arrest photo and arrest information. Obviously, this could cause you, your family, and friends embarrassment and may damage your reputation.

There are also local newspapers and publications that print the photos and information of those arrested. Some of these publications are available free at local businesses. Once your photo and arrest information is on the public domain via the internet, it is almost impossible to completely erase that information.

TRAVEL: If placed on probation by the Court for a felony crime, oftentimes a person is then prohibited from leaving their county of residence. If you live in Hillsborough County, this means no trips to Clearwater Beach while on probation, no Rays Games, no trips to Orlando, etc. Further, without getting pre-approved written permission from the probation officer and/or the Judge, a person is not allowed to leave the State of Florida to attend a wedding, funeral, or other important family event.

The above are "hidden" but very important potential collateral consequences of being arrested. If you have any questions about this information, please contact me at 813-877-HELP (4357) or email me at sheinlaw@hotmail.com.