We handle expungements all the time. One problem in this area is that, even after a conviction is expunged by the court, and the official records of the arrest and conviction have been sealed by the court, there are frequently vestiges of the record in the hands of private database companies.
Any person who accomplishes expungement of an arrest or criminal conviction should realize that the job may not be complete until the private database companies that resell criminal history information remove the data from their file.
The process of getting the private database companies to remove criminal history information can be challenging. We advise our clients to wait a couple months after the expungement is complete. Then, the client should order his or her own criminal history information from several of the leading background search agencies. In effect, the client would be doing a criminal history check on himself or herself. If the record that comes back includes the expunged record, the client should contact the agency and send a polite but firm letter informing the agency that the record has been expunged by the court and request that the criminal history information be removed.
There are Federal laws that generally require that credit reporting agencies give out truthful information concerning the credit files that they sell to the public. By extension, this law should apply to the background search agencies as well. Background search agencies have assured me that they will remove expunged records once they are aware that a record has been expunged. But it frequently is necessary that the client be pro-active and thorough in making sure that it happens. Clearly, the court's order granting the expungement is not the end of the process in clearing up a person's record.
There is a split of opinion on what expungement truly means. However, when something is expunged it's off CCAP and no longer accessible to the public. I think the concept that an expunged "conviction" needs to be mentioned flies in the face of what expungement means and is supposed to achieve. If we're giving youthful offenders on lower level cases a second chance, why would we impose a rule that requires those same people to disclose that conviction? Plus, there is case law where witnesses at trial, who have expunged convictions, are allowed to answer "no" when asked if they have a criminal conviction.
It's a complicated question and there's no consensus amongst the defense bar as to what you should do. I would be happy to talk to you in more detail if you want to call.
I agree with Attorney Cotton. You can and should answer No.
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First, be cautious of answers from out of state attorneys.
Second, as much as I would like to agree with Tony and Tajara, I am uncertain whether answering no on the application is the correct path. I believe you may say no. The Director of State Courts, however, produces a brochure stating otherwise: http://www.co.kenosha.wi.us/clerkcourt/documents/ExpungingCourtrecoRdsBrochure.pdf
Also, if this retail theft comes up on a routine background check, then it may look like you were disingenious by answering no.
I suggest purchasing a background check on yourself and seeing if the retail theft comes up. Then, making a decision.