drug offences or driving on a suspended license. People make mistakes. Mistakes should not define people. Expungements are an opportunity to start fresh in job searches and other facets of life. Several people seeking expungements are people who did something ill-advised in their 20s or 30s and have moved forward, becoming an entirely different person often with a new life. Those small convictions can be the difference in failing to receive job offers or promotions in many fields. The goal is not to paper over someone’s past, but rather to give them another try. Most states allow for some form of expungement for misdemeanours and over half allow expungement of certain felonies. There is no broad or general federal expungement statute and federal courts do not have the authority to expunge records of a valid federal conviction. In most states where expungements are available, a person must prove they are worthy of the second chance. The grant of an expungement is not automatic. This is shown through an otherwise clean record, maintaining gainful employment, volunteerism and reference letters from loved ones. In California, we use the term ‘dismissal’, meaning that the Court reverses a guilty plea and enters a dismissal. On paper, it looks like the case was not prosecuted. Unfortunately, this produces no change to the person’s arrest record. The former requirement to seal and destroy an arrest record was a finding of ‘factual innocence’. This was a nearly impossible standard as the person was required to demonstrate they were actually innocent of the crime versus merely not guilty. This often required a finding that no crime occurred or determining the actual culprit with some finding of guilt regarding that person. Few people were successful in reaching that standard. Now, the law has been expanded to allow sealing and destruction of arrest records in many more cases, allowing more people a fresh start. For immigrations purposes, only full and unconditional pardons can avoid deportation for a criminal conviction. Expungements, sealing or other mechanisms are not recognised unless there was a substantive structural or procedural error during the conviction process that led to the post-conviction relief. What are the typical steps taken during expungement proceedings? Although each state differs, most require the person seeking the expungement to begin the proceedings since the process is not automatic after the completion of a sentence. The documents and information needed to complete the petition will vary based on jurisdiction. It may be imperative to have as much documentation such as arrest records, case numbers, judgments, etc. as possible to ensure the form is completed accurately. After the filing is prepared, applicants should be prepared to submit the filing fee required by the court. Applicants should research all the required fees prior to submitting their application to ensure it is not rejected or delayed. Some courts, where applicable, may have a filing fee per offence a petitioner is applying for. In states where a hearing is required for the expungement, the court will set a date. The hearing may be set anywhere from 30 days to months out depending on scheduling. Another important thing to remember is that law enforcement and other agencies may take several months to destroy records. Does this process differ where juvenile records are concerned? There is a common misconception that juvenile records are automatically sealed upon the juvenile reaching 18. The laws regarding this vary widely by state. Few states allow full expungement or sealing For immigrations purposes, only full and unconditional pardons can avoid deportation for a criminal conviction. 22 LAWYERMONTHLYDECEMBER 2022
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