Is It Possible To Clear My Arrest Record?
- February 1, 2017
- The Law Office of Greg Tsioros
- Comments Off on Is It Possible To Clear My Arrest Record?
A criminal record has severe consequences when it comes to securing housing or seeking employment. Landlords and employers usually ask apartment seekers and job applicants about their criminal status. In many cases, ex-convicts are turned down by landlords and employers. If you have suffered such humiliation or fear experiencing such treatment, you ought to know that it is possible to clear your arrest record. Read on for more information about what expungement is, what crimes are expunged, the process, and forms it takes.
What is Expungement?
When discussing the question of clearing records, it is important to distinguish between expungement and sealing of records. Expungement is a complete elimination of criminal records. When records are expunged, it means all files and documentation is destroyed and your record is as though it was never there.
On the other hand, record sealing, also known as non-disclosure, is a process of limiting access to a person’s criminal record. It means making it difficult for anyone to have knowledge about your past criminal record. The files and documents pertaining your conviction or arrest are not destroyed and can be opened for viewing at the request of a government institution or through a court order.
How Does Expungement Work?
In Texas, one can only expunge or seal their criminal records after receiving a pardon. In order to expunge or seal a case that was either dismissed or adjudicated, you must file a motion in the county where you were arrested or where the conviction took place. Your motion should be presented before the district court. The motion is a request addressed to the judge asking them to expunge or seal records concerning any conviction, court proceedings, or arrest. If the motion is granted, the Judge will either issue an expungement order or a non-disclosure order. When any of these orders is issued, your criminal records can longer be accessed by the public.
Another option apart from expungement and non-disclosure, is to ask the court to set aside your conviction. When the court grants a setting aside motion, your conviction reads that you were not found guilty. This means that though your record may appear in background checks, it appears as dismissed without finding of guilt.
When Can Your Records Be Expunged?
In order for your record to be expunged, you should satisfy the following conditions:
- The court acquitted you of the offense you were arrested and charged for
- The court convicted you for an offense but later found you to be innocent
- The court convicted you but you were later pardoned
- After being charged by information or indictment, the case was subsequently dismissed
- After being arrested you were not charged formally and you qualify for expungement based on the waiting periods laid out by the law
In Texas, if you are arrested and no charges are leveled against you, the law requires that you wait for a certain time period before seeking for an expunction. The following waiting periods are provided for under the law:
- Felony: Three years from the time you were arrested
- Class A or B misdemeanor: One year from the time you were arrested
- Class C misdemeanor: 180 days from the time you were arrested
The statute does not provide waiting periods for expunction after you are acquitted, pardoned, or convicted and found to be innocent.
In cases where the state attorney finds your files to be unnecessary for a criminal prosecution, you can file for an expunction without adhering to the above waiting periods.
You can also pursue an expunction of criminal records belonging to a deceased person if they were your next of kin or close relative. The deceased has to meet the conditions of expunction described above.
Some of the crimes that qualify for expunction are misdemeanor offenses, crimes committed by juveniles, minor alcohol-related crimes, and drug crimes. Many people who get arrested for drug related offenses qualify to be in diversion programs. These programs provide for one’s records to be expunged upon completing the program. People convicted or arrested as juvenile offenders also have an easy time having their records expunged if they have not brushed shoulders with the law since the conviction or arrest.
A Certificate of Actual Innocence
One of the powerful types of expungement is a certificate of actual innocence. The certificate not only expunges a criminal record but it provides proof, in form of a certificate, showing that a person was factually innocent for the crime they were charged for.
Who Cannot Get an Expunction?
You do not qualify for an expunction if you received probation or deferred adjudication. Additionally, if you got convicted for a felony within a period of five years after being arrested, or the limitation period (statute of limitations) of the offense you committed has not passed, you cannot succeed in expunging your records. If you have committed criminal acts such as prostitution, child molestation, theft, sexual battery, DUI or vehicular homicide, your records cannot be expunged.
When Can You Get a Non-Disclosure Order
If you do not qualify to get an expungement of your criminal records, you can still have your records sealed. You can petition for a non-disclosure order if you plead no contest, or are found guilty, or plead guilty, to any crime apart from a Category C misdemeanor. Furthermore, you must have gone through a deferred adjudication under community supervision. A non-disclosure order seals your criminal history making it inaccessible to the public.
Clearing one’s criminal records can offer relief especially during this era when a person’s eligibility to get housing and employment depends on their criminal record. Each state has different laws on expungement, therefore, before you seek to confiscate or seal your records, it is advisable to determine whether or not you are eligible for an expungement or non-disclosure order. While expungement orders make it appear like you were never arrested or convicted before, non-disclosure orders are such that your criminal history may surface under special circumstances. It is better to consult an attorney for more information on clearing your criminal records and your best options.