Sealing and expungement of criminal records: benefits and reasons for denial
As a Fort Lauderdale criminal defense attorney, I often receive inquiries as to whether a client is eligible to have their criminal record sealed or expunged. I created this “cheat sheet” to help my clients understand the benefits of sealing or expunging a criminal record and the common reasons for denial.
Due to the economic recession, the unemployment rate in the United States hovers around 9-10%. As a result, employers can be very particular about their new hires and may prevent hiring someone with a criminal record. Worse still, with advances in technology, employers can inexpensively discover your criminal history from anywhere in the United States with no time constraints. Recently, a client was fired from his job for failing to disclose a minor marijuana charge from 1978. In addition to employers, criminal background checks are common when applying for housing, professional licenses, security clearance, and certain bank loans. I have even heard of potential dating partners doing a criminal background check on a person ahead of dates.
When you erase your criminal record, your criminal record is no longer accessible to the public. Such criminal history includes your court case number, your jail record, and the police record of the incident (ie, probable cause affidavit). Please note that if you were arrested for a crime, even if the charges were never filed or your case was dismissed for any reason, the record of your arrest and the court case remains publicly accessible until you expunge your case. It bears repeating that even if the State Attorney’s Office “dismissed” or announced a Nolle Prosequi (“Dismissal”) of your case, the record of your arrest and the court case are still available for employers to view until delete your case.
In most situations (including all expungements), you can legally deny that you were ever arrested for the crime that you had sealed or expunged. Think about the value of not having to tell an employer about your youthful indiscretion or misbehavior that you are currently leaving an indelible mark on your resume. The cost benefit of spending a few hundred dollars to hire an attorney to seal or expunge your record could cost you tens of thousands of dollars down the road. Keep in mind that in Florida, it takes approximately 6 to 7 months for a court to delete your record. As a result, be proactive – don’t wait until you are applying for a new job before asking the Court to dismiss your case.
Common reasons for denial
I receive dozens of phone calls a year from people who have been improperly warned by their previous criminal defense attorney that they can have their arrest record sealed. It always amazes me when criminal defense attorneys misstate the law on sealing, as the Florida Department of Law Enforcement provides a detailed explanation on their website of which crimes are not eligible to be sealed or expunged.
By far the most common query I received concerns the criminal offense of driving under the influence of alcohol. In the state of Florida, anyone who accepts a plea of driving under the influence receives a guilty sentence. A person cannot receive a stay of adjudication for driving under the influence, unless the state’s attorney changes the charge to reckless driving. The law is clear that a person CANNOT stamp or expunge their record if they have ever been AWARDED of any criminal offense, including Driving Under the Influence or Driving with a Suspended License.
The second most common investigation concerns people who were improperly warned by their previous criminal defense attorney that they can always seal the record of their arrest if they received an AWARD OF ADJUDICATION to the charge. Again, I consider this legal negligence considering that the Florida Department of Law Enforcement website specifically lists which crimes are not eligible to be sealed, regardless of whether the conviction was withheld. It is noteworthy that all ineligible crimes are listed in Fla. Stat. 907,041.
Criminal defense attorneys have often misrepresented that the following crimes can be sealed if the client received a withholding of adjudication: (1) Burglary of a home; (2) Any act of domestic violence; and (3) stalking. These charges cannot be sealed even if the charge is a misdemeanor and received a withholding of adjudication. Also, a person can only stamp or delete their record on ONE occasion. A person cannot seal a charge in 2010 and expect to seal another charge in 2011.
Although you do not need an attorney to ask the court to seal or expunge your criminal record, I recommend that you retain an experienced criminal defense attorney to handle this matter. Most attorneys in Florida will charge between $ 500.00 and $ 1,000.00 for this service. Since making sure that your criminal record is properly sealed or expunged could be one of the most important decisions you will ever make, it is beneficial to make sure it is done correctly.
The information on this article site was developed by Lyons, Snyder & Collin, PA for informational purposes only and should not be considered legal advice. The transmission and receipt of information in this article does not form or constitute an attorney-client relationship with Lyons, Snyder & Collin. Persons receiving the information in this article should not act on the information provided without seeking a professional attorney.