Expungement

Thousands of arrests each month. And every time a person is arrested and fingerprinted, a criminal record is created. A revelation, I know. Under Florida law this information is public record. Yes, everyone can see this–unless it is sealed or expunged. Isn’t it hard enough to find a job these days? Employer background checks are more popular than ever, so expunging and sealing are now more important than ever.

A citizen is entitled to only one court-ordered seal or expunge per lifetime, though technically you can sneak in a second one if the first was a juvenile record (and you can get unlimited automatic sealings, but that’s a topic for another day). If a citizen has ever been convicted of any crime (even a small criminal reckless driving, for example), no seal or expunge is allowed on any arrest. Sorry.

There’s lots of confusion surrounding sealing and expunging. Not everyone, nor every charge, qualifies. Depending on the charge and how it was resolved, a citizen may qualify to have a record sealed, but not expunged, or neither. So, how do you know whether or not you qualify? Simply give Orlando expungement lawyer John P. Guidry a call to discuss your options. If it turns out that you do not qualify for a seal or expunge, there’s plenty you can do to clean things up, just check out my article How To Clean Up Your Criminal History If You Cannot Seal or Expunge It.

Difference Between Expungement and Sealing of Criminal Records

Expungement and Sealing of Criminal Records are not the same thing. The beauty of both is that you are legally entitled to lie! That’s right, you may lawfully deny or fail to acknowledge the arrest (except as I’ll outline below). Expungement is the best option, if it’s available, but for all practical purposes, sealing a record will accomplish the same thing as an expunge (this wasn’t always the case, and I won’t bore you with the details). The beauty of an expungement is that much of the information regarding your criminal case will be erased from the police computers, erased from the clerk of court computers, files destroyed–but there are limitations. Many government agencies, such as the Department of Education (for all you teachers out there), FBI, and others, still have access to an expunged arrest.

Sealing a Criminal Record is good, and as we said above, it’s practically the same thing as an expunge. Once a case is sealed we may then expunge the case after 10 years of sealing. Again, it’s pretty much the same thing as an expunge.

Judge’s may deny a Petition to Seal or Expunge, but they do so at their own risk, because Florida law presumes that a court should grant a motion to seal or expunge if the defendant qualifies. Several courts have denied folks their petitions to seal or expunge, only to have an appeals court overturn the denial. For two examples of overturned seal/expunge denials, click on my article “Judge’s Denial of a Seal / Expunge Gets Overturned“. In this article, you’ll find two good examples of why a judge may not deny a petition to seal.

Judge’s Denial for Expungement

Sometimes, judges will deny a petition to expunge, arguing that such a decision is “in the sole discretion of the court”. That is what the law says. The decision to seal or expunge is in the “sole discretion of the court”. But, that’s not what it means. There was a case right here in Orange County, in which the judge denied the petition to expunge by simply stating, in an order “The Defendant’s Petition to Seal is hereby DENIED.” M.N. v. State, 18 Fla. L. Weekly Supp. 921a (2010-AP-12, April 25, 2011).

The appeals court didn’t like this order, because everybody knows that the law favors the sealing of a record. The presumption is that the petition should be granted. So, the appellate court in M.N. sent the case back to the judge, asking for a reason, and they got this response: “Based upon the nature of the offense and the totality of the circumstances, the Court exercises its discretion and Denies the Defendant’s Petition to Seal”. Hum. Is this explanation by a judge, in writing, enough to overcome the presumption that a citizen is entitled to have this motion granted?

No. Because, if you’re going to deny an expunge or seal, you better be prepared to explain your position. The above order, citing “the nature of the offense”, and citing “the totality of the circumstances”, won’t cut it. Why, you ask? Because the denial must be based upon EVIDENCE. In striking down the judge’s denial in M.N., the appeals court noted that “the trial court was unable to set forth specific reasons because there was no evidence, testimonial or documentary, presented at the hearing. . . It is well settled that the nature of the charge or offense by itself is not a legally sufficient reason to deny a petition to seal.” id. For more information on this case, check out my article entitled “Judge Waves his Magic Wand, But Cannot Deny a Seal and Expunge“.

Is It Better to Expunge or Seal a Criminal Conviction?

The criminal defense community is somewhat split on the importance of a seal or expunge. Back in the day (before computers), this was an easy decision, as no one could find records with no computer searches available. Some attorneys believe that sealing a case is now useless because in today’s internet age, someone can always find arrest information. While this may be partially true–why not use every option legally available to make a record harder to find? Sealing/expunging does just that. Why someone would not want to make EVERY effort to erase a criminal history is beyond my comprehension. Prior criminal charges can even prevent Florida citizens from traveling to other countries (for more details on such, see my article “Old Weed Charge Denies Canadian Super Bowl Trip“).

Here’s the problem. With computerized clerk records, background check companies are able to store arrest information and they are not required to erase it once the record is sealed. Thus, if the case “may” show up on a background check even after a seal or expunge, why do it, right? Wrong. Here’s why.

While it is true that a sealed/expunged record may still end up on a background check, the incident can be explained away as a mistake–and there’s no way to verify this! It’s a beautiful thing. For example, to show a potential employer the bogosity of the background check company’s info, have them call the clerk of court or police agency involved–these agencies will have NO record of what the background check company alleges! You see, even background check computers can make mistakes. And, you are entitled to lie about the incident (with a few exceptions). You are legally entitled to explain the incident away as a mistaken identification case.

Bear in mind that our job market is tough. Many human resource departments may want to hire a citizen with a criminal record, but cannot until they are shown proof that the incident was “sealed” or “expunged”. To some companies, a judge’s decision to seal or expunge a record provides some confirmation as to the bogosity of the charges. A seal or expunge is just one more way to help your chances of getting hired. Is it a guarantee? No, because we cannot control what a background check company “retains” in its records. But, it sure beats simply giving up. Also, background check companies buy criminal records in bulk from the clerk of courts (ever notice how hard it is to retrieve records from the clerk? This prevents companies from “data mining” the clerks site without paying for the data.). A sealed record has a better chance of dropping of the radar screen, and it is only a matter of time before new background check companies cannot obtain your records from the clerk because the clerk has erased them.

Criminal background checks are now available via the three major credit reporting agencies, Equifax, Experian, and TransUnion. Under Federal law (including, but not limited to, the Fair Credit Reporting Act), these agencies must provide documentation of disputed entries on your credit report. One benefit of sealing or expunging a record is that proof of such a record cannot be provided by the clerk of court (or a law enforcement agency, for that matter). As such, the consumer should be able to have his criminal background removed from his credit report once proof is provided to the reporting agency that the case has been sealed or expunged. Unfortunately, there is no legal requirement that credit agencies comply with this request (you may have to sue them), but it rarely comes to that. Think about it. You dispute the criminal history. In turn, they seek verification via the clerk of court. They are not provided the proof. Also, you could provide the background check company a copy of the judge’s order sealing the case, which is only further evidence of the bogosity of the underlying criminal record (remember, there is no explanation contained within a court order sealing a case which explains “why” the case was sealed).

Some efforts have been made to pass legislation which would make it more difficult for employers to discriminate based upon a prior criminal history by eliminating criminal history questions from employment applications (See my article “Life After a Felony” for more info). Also, Florida has passed a law requiring mugshot companies to remove booking photos for those folks whose cases have been dropped (the problem is, these mugshot companies are located over seas, and rarely comply with local laws).

The Law Firm of John P. Guidry II gives a free confidential consultation regarding expungement and sealings. We’ve been defending criminal matters since 1993. Call us anytime, an Orlando expungement lawyer will help you clean up your criminal record!

Go Ahead and Lie, It’s Legal and Fun!

As mentioned above, lying about your prior record is legal once the arrest is sealed or expunged, so utilize your freedom to lie as much as possible. But, there are some limitations regarding who you may lie to, and under what circumstances. So, if you seal your criminal history record sealed under this section or under other provisions of law, including former s.893.14, former s.901.33, and former s.943.058, you may lawfully deny or fail to acknowledge the arrests covered by the sealed record, except when the subject of the record:

1. Is applying for employment with a criminal justice agency;
2. Is a defendant in a criminal prosecution;
3. Is petitioning for relief under s.943.0585 or s.943.059, in other words, if you’re applying to seal or expunge ANOTHER arrest record, you must tell them about this sealed record;
4. Is applying for admission to The Florida Bar;
5. Is seeking to be employed or licensed by or to contract with the Department of Children and Family Services, the Agency for Health Care Administration, the Agency for Persons with Disabilities, or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the developmentally disabled, the aged, or the elderly as provided in s.110.1127(3), s.393.063, s.394.4572(1), s.397.451, s.402.302(3), s.402.313(3), s.409.175(2)(i), s.415.102(4), chapter 916, s. 985.644, chapter 400, or chapter 429;
6. Is seeking to be employed or licensed by the Department of Education, any district school board, any university laboratory school, any charter school, any private or parochial school, or any local governmental entity that licenses child care facilities; or
7. Is seeking authorization from a Florida seaport identified in s.311.09 F.S. for employment within or access to one or more of such seaports pursuant to s.311.12 F.S. or s.311.125 F.S.
8. Is attempting to purchase a firearm from a licensed importer, licensed manufacturer, or licensed dealer and is the subject to a criminal history background check under state or federal law.

Now, for every agency listed above, bear in mind that these folks may want to see copies of the records that have been destroyed. For example, I’ve expunged plenty of charges for college students seeking to become teachers. Before the clerk destroys their copies of the file, we obtain eight certified copies of the police report and disposition in the case–because the Department of Education will demand a certified copy of the police report and disposition (even though they ‘know’ the clerk has destroyed all copies).What Charges do not Qualify?

Here’s most of the long list of charges that do not qualify for a seal (everything qualifies for an expunge, sort of). This list can be found in Florida Statue 943.0584. Typically, you’re sealing the case because you pled guilty or no contest to the charge and adjudication was withheld. The list of crimes that cannot be sealed is below:

Offenses listed in S.943.0584, F.S.

1. Sexual misconduct, obscenity (pretty broad, but as a general rule, anything sexual isn’t eligible to be sealed)
2. Illegal use of explosives
3. Terrorism
4. Murder, manslaughter, homicide
5. Child abuse, abuse of elderly or disabled person
6. Voyeurism, video voyeurism
7. Burglary of a dwelling
8. Kidnapping or false imprisonment
9. Stalking or Aggravated Stalking
10. Selling or buying of minors
11. Sexual Battery, lewd act on a child
12. Robbery, Robbery by sudden snatching, Home-invasion Robbery
13. Carjacking
14. Any lewd act, sex with a child, pretty much any sex case with children….
15. Drug Trafficking
16. Manufacturing any substances in violation of chapter 893 (even cultivation of cannabis is considered manufacturing)
17. Possession of Child Pornography
18. Domestic Violence, either battery or assault or strangulation (basically, domestic violence of any sort cannot be sealed)
19. Aggravated Assault, Aggravated Battery, or Felony Battery
20. Stalking (of any kind, misdemeanor or the felony aggravated version)
21. Aircraft piracy
22. Communications fraud, fraudulent sales over the phone, scheme to defraud
23. Child pornography, luring children, traveling to meet minor, anything related to child pornography

While we’re discussing things that cannot be expunged or sealed, we cannot seal or expunge a traffic citation, like a speeding ticket or careless driving. Yes, these little citations cause big problems for folks whose employment depends upon driving a company car. Now, after just telling you that we cannot seal a traffic citation, let me perform a bit of Double Speak, and inform you that some judges are willing to seal citations. To dig deeper into this quasi-legal concept, take a look at my article Sealing a Traffic Ticket.Alternatives to Sealing or Expunging

In case you didn’t know, Florida’s Governor has the power to issue a pardon or clemency to anyone charged with a crime in Florida. They have a whole office devoted to such petitions, called the Office of Executive Clemency. Most of the attorneys who handle clemency petitions reside in Tallahassee. If you need a referral give me a call. Basically, you want to use the Office of Executive Clemency if you do not qualify for a seal or expunge.

Administrative Expunge

Another option is called an “Administrative Expunction”. It’s found in Florida Statute 943.0581, and it doesn’t require all of the paperwork that a traditional seal and expunge requires, but in many ways it’s far more difficult to accomplish.

An administrative expunge is typically conducted with the help of the law enforcement agency that mistakenly, or illegally (almost the same thing), arrested a citizen. The rules for submitting and administrative expunge require that the application have a letter from the arresting agency attached to it explaining that their arrest was a mistake. For practical purposes, this type of expunge is not very common, but should you want more details, check out my article “A Different Approach to Expunging a Record“.

Automatic Sealing

This interesting statute can be found in Florida Statute 943.0595. Basically, most offenses that are either (1) never filed on (a No Information, for example) or (2) dismissed, qualify for an automatic sealing.

The good news is, a citizen’s criminal history makes no difference. You can have a hundred prior arrests and convictions and still qualify for automatic sealing. Also, there is no limit on the number of automatic sealings. If you are falsely accused of a crime ten times and ten times those charges are dropped–you’re entitled to 10 separate automatic sealings.

The problem with this statute is that the title is misleading. The only thing this statute does is erase the criminal history from FDLE’s database. The statute doesn’t direct the clerk of court to erase the file. Currently, our local clerk of court is telling us that this statute doesn’t require them to seal anything–it only requires FDLE to remove the record. Ouch. Apparently, no one got the memo that we live in a well connected internet driven land. That means, if you’re going to leave a criminal history on the clerk’s computer–complete with police reports and witness statements–folks are going to find out! It doesn’t matter that FDLE is directed to “seal” something when everyone else is still publishing the record. So, my hope is that they tighten up this law. Right now, it doesn’t do much good, but, its a start.