Expungement is the legal process of removing references and details of a criminal record from accessibility. The major steps involved are:
- A petition (request) to the court to seal criminal records of eligible charges and convictions
- A judge’s review of the petition (usually made at a court hearing)
- If granted, the judge’s order sent to all agencies keeping the records to have all such records sealed.
A judge’s expungement order pertains to “all records relating to the arrest, charge, or other matters arising out of the arrest or charge” and extends to “all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records.” KRS 431.076(4). When records are sealed, they do not show up on publicly available background checks or criminal record reports used by police, prosecutors, or the courts.
The proceedings in the matter are “deemed never to have occurred.” The Court and all agencies which had been keeping records may thereafter reply “that no record exists on the matter”. The person whose record is expunged “shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application.” KRS 431.076(6) & KRS 431.078(6). This means that if asked, the person may legally say that he or she was never charged with or convicted of (whichever is appropriate) the expunged offense(s).
Purpose of Expungement
It is important to realize that charges and convictions on a person’s criminal record remain on the record FOREVER unless expunged. Because charges remain indefinitely, records continue to show up even if the case was dismissed or the person was tried and found not guilty. Because convictions remain indefinitely, relatively modest criminal offenses (misdemeanors and violations) continue to show up irrespective of how much time has passed since the relevant offense. The rationale for keeping criminal records indefinitely is to inform the police, prosecutors, and judges of a person’s criminal tendency should that person commit another offense.
The problem for people with modest criminal records is that background checks which include such records are readily available. There are numerous online background check services that any member of the public may use to gain information about another person. In addition, official criminal record reports are provided by the Kentucky Administrative Office of the Courts or the Kentucky State Police.
Many people have blemishes in their past but turn their life around and should not be forced to be haunted by criminal records for all time. Unfortunately, with easy access to criminal records, decision-makers frequently take criminal records into account. Expungement laws were enacted to give people who have a modest criminal history the opportunity to wipe the slate clean. The Kentucky legislature decided that people who were not convicted or whose misdemeanor or violation occurred long ago should not continue to pay for such offenses. If expungement is available to you, it makes sense to take advantage of the opportunity at a fresh start.
Common Reasons to View Another’s Criminal Record
Criminal record reports and background checks are frequently accessed and used in a variety of contexts including:
- By employers, when a person has applied for a job
- By landlords, when a person has applied to rent a house, apartment, etc.
- By schools, when a person has applied for admittance
- By licensing agencies, when a person has applied for a professional license (doctor, nurse, etc.)
- By lenders (banks, credit card companies, etc.), when a person has applied for a loan
- By insurers, when a person has applied for insurance
Reasons to Seek Expungement
Given these facts, there are several important reasons to seek expungement if available:
- Eliminate the potential immediate rejection by someone who has viewed your criminal history. Consider this in the employment context:
- Employers frequently prescreen job candidates for criminal records and may reject a candidate for any criminal history. When there are numerous applicants, the employer needs a quick way to distinguish between similar candidates and criminal history often prevents an otherwise qualified applicant from getting a second look.
- Eliminate the embarrassing or uncomfortable need to explain oneself to someone who has viewed your criminal history. Consider this in the housing context:
- Renters ask prospective tenants to fill out applications prior to making housing available. Usually the prospective tenant is required to name and explain any criminal charges or convictions, and the landlord reserves the right not to rent to someone whose explanation is deemed insufficient.
- Permanently remove a conviction from your record while you can before a later conviction eliminates this option. Under KRS 431.078(4)(b), a conviction that would be eligible for expungement may no longer be expunged if the person is later convicted of a felony, a misdemeanor, or a violation. Thus, a later conviction will ensure that criminal records remain on a person’s record for at least the next 5 years.
- Prevent a prosecutor or judge from viewing your criminal history when considering bail or charging issues. Should you be charged with a criminal offense in the future after prior offenses have been expunged, the expunged offenses will not be accessible. The likely effect is that prosecutors will not be able to push for heightened bail or more serious charges and judges will not make as severe sentencing decisions as they otherwise could.
Frequently Asked Questions
- Can I expunge a DUI?
- Yes. DUIs are generally misdemeanors and therefore they may be expunged. However, keep in mind that pursuant to KRS 189A.010(5), the “lookback” period for a DUI 2nd Offense or greater is 10 years, meaning the waiting period to expunge a DUI is at least 10 years after the conviction date. See KRS 431.078(4)(d).
- Can I expunge my drug possession charge? How soon can this get off my record?
- Yes. The vast majority of drug charges are misdemeanors and therefore they may be expunged. According to KRS 218A.275 and KRS 218A.276, a drug possession charge may be voided immediately after conviction. A voided drug charge has the same effect as expungement in that the record is sealed and would not appear on background checks. Therefore, you would not have to wait the normal 5 years before getting a first drug charge removed from your record.
- Can I expunge just a particular charge that is giving me the most trouble?
- Unfortunately expungement does not work that way. The law does not allow you to pick and choose just one offense, for instance. A person’s entire criminal record must be evaluated to determine eligibility based on the particulars of the expungement laws. If you contact our firm about your expungement, we perform this evaluation before filing.
- Is there any way I can get a misdemeanor conviction expunged before 5 years?
- In some circumstances, yes. Most commonly this is available for drug possession convictions.
- Can I expunge my federal charges or charges imposed by another state?
- Not in Kentucky. Kentucky courts can only expunge Kentucky charges. See KRS 431.078(10). You must separately apply for expungement in the state in which the offense was charged.
- In which court must an expungement petition be brought?
- The petition must be brought in the court where the person was convicted under KRS 431.078(1) or the court where the charges were filed under KRS 431.076(1).
- What if the charges were dropped by the complainant, the police arrested the wrong person, or the prosecutors found there was no probable cause?
- Even if the charges are completely bogus and were ultimately dismissed, criminal offenses once charged remain on a person’s criminal record unless they are sealed through the expungement process.
- What does “with prejudice” mean regarding a dismissal of criminal charges?
- A person whose charges were dismissed with prejudice may have such charges expunged. KRS 431.076(1). This means that the Court found the charges were dismissed for a good reason usually because of some factor “on the merits,” rather than due to some technicality, such as the grand jury’s refusal to indict or a lack of admissible evidence. Consequently, the prosecutor cannot pursue that same matter any further. If a case was dismissed “without prejudice,” such dismissal is not necessarily a final judgment, and that is why expungement is not available right away. So as to avoid trial, many defendants accept agreements with prosecutors whereby the case against them was dismissed without prejudice.
- After expungement, will a criminal record show that offenses have been expunged?
- No. All records about the expunged offenses will be deleted, including notations that records previously existed (known as “index references”). KRS 431.076(6) & KRS 431.078(5) & KRS 610.330(5).
- When/how may a sealed criminal record be accessed?
- When a record is expunged, it is permanently sealed which means that it is both unreferenced and no longer viewable. Under the expungement statute, the only way sealed criminal records may be accessed is if the person whose records were expunged later files a motion to inspect the records. KRS 431.078(9). The same is true for juvenile records. KRS 610.330(6).
- Do I ever have to disclose offenses that have been expunged?
- Under the expungement statute, the person whose records were expunged does not have to disclose information about such offenses on any application where it might be asked. KRS 431.076(5) & KRS 431.078(6). That being said, if you are specifically asked about any charges or convictions whether or not expunged, it would not be accurate to say you have never been awarded an expungement. Persons applying for public office or licensure by a state or local agency are sometimes asked to make disclosures about expunged offenses.
- May I expunge multiple charges or convictions at once?
- Yes, all charges or convictions arising from a single criminal case or incident may be expunged with a single expungement petition. KRS 431.076(1) & KRS 431.078(1). If you use our firm for your expungement, we review your criminal records to determine all charges or convictions that may be expunged. Sometimes the charges/convictions from multiple criminal cases/incidents may be expunged at once. Our firm will charge only a single legal fee to complete and handle all eligible charges in a single court.
- Will my record be expunged after submitting a Petition for Expungement?
- A petition is a legal request brought to the court and as such there is no guarantee that it will be approved by the reviewing judge. However, part of an attorney’s role is to review the client’s information and submit legal documentation that will give the client the best chance to accomplish the desired goal. If you use our firm for your expungement, we review your criminal records before filing to determine whether expungement is available to you under current law. We thoroughly review the information you provide us in completing your expungement petition so it is likely to be well-received by the judge. We can handle the expungement hearings and urge the court to grant the expungement if it is opposed by the prosecutor or victim. In most cases, the client does not have to attend the expungement hearing.