A Different Approach to Expunging a Record

Expunging a record can be a time consuming process, because you have to wait on the government at several different stages. For example, at the very beginning of the expunge process (as opposed to the sealing process), you must get the State Attorney’s Office to sign off on the application. There’s no real deadline for this signing event, and usually this task is complete within a few weeks. But, again, we’re dealing with the government, and they’re in no real hurry. The same can go for FDLE. Once the State Attorney’s Office has signed off on an expunge application, that application is forwarded to the Florida Department of Law Enforcement for a background check. This background check can take a matter of weeks (unlikely, but I’ve seen it happen), or a matter of months (much more common).

But one particular expunge process takes government control to a whole new level, it’s called an “Administrative Expunction”. This type of expunge is brought to us by Florida Statute 943.0581, and, believe it or not, neither you nor your attorney may apply for an administrative expunge. Only the government may apply for an administrative expunge, and only in cases where an arrest was “made contrary to law or by mistake”.

Now, by my count (unscientific, but accurate nonetheless), plenty of arrests have been made contrary to law. To me, this phrase could mean any sort of arrest that a court deems illegal. Recently, I had a client’s drug case thrown out because the search of his home was illegal. So, if the search of the home was unconstitutional, wouldn’t his arrest be “contrary to law”–and thus be eligible for an administrative expunge? I don’t think the definition of “contrary to law” extends to arrests deemed unconstitutional by a criminal court judge. I think is should, but as a practical matter, prosecutors are not too cooperative when it comes to helping out a defendant via Section 943.0581 (most don’t even know what an administrative expunction is).

Technically, the statute does permit a citizen to apply for an administrative expunction, because it requires the citizen’s application be “supported by the endorsement of the head of the arresting agency or his or her designee or the state attorney of the judicial circuit in which the arrest occurred or his or her designee.” Are we ever going to get a law enforcement agency to sign off on an administrative expunge where their officers did something illegal? Don’t hold your breath.

Florida’s Administrative Code, Sections 11C-7.008 and 11C-8.001, lay out the details of the application process, and require “the arresting law enforcement agency [determine] that the arrest was made contrary to law or by mistake”. Again, how often will you be able to get the arresting agency to determine they’ve made a mistake? This does happen, believe it or not. However, the mistake has to be blatant, a clearly wrongful arrest. A judge may also make a determination that the arrest was contrary to law, but if the arresting agency doesn’t agree with the judge’s determination, the arresting agency will not supply the endorsement on letterhead required to make this process move forward. The application will be dead in the water. Bottom line is, an administrative expunction is a rare bird, granted only in cases of true mistaken identity. And, even then, your defense attorney may have to beg the prosecutor to initiate this process. But hey, don’t get to depressed about the whole thing, we always have the tried and true standard seal and expunge. Sure, it may take a few months, but it’s worth it.