I live in Kentucky
Charges- same case:
Poss. of Marijuana- dismissed
Poss. of Paraphernalia- will be dismissed after i complete 50 hours of community service
I need to apply for Fafsa for the next school year, but if i have a drug possession charge i will get denied. I'm looking to get the Poss. of Marijuana expunged now so that i won't be denied. I read that the paraphernalia charge doesn't affect Fafsa, but i would still like to get it expunged after i get it dismissed. I'm not going to be able to complete the community service on the paraphernalia charge for another 6 months (due to conflicts with job and classes). Will i be able to get the POM expunged now and the POP expunged in 6 months after i get it dismissed or do i have to have them both expunged at the same time?
Criminal Defense Attorney
Here is the expungement statute:
Kentucky Revised Statutes
Title 40. CRIMES AND PUNISHMENTS
Chapter 431. GENERAL PROVISIONS CONCERNING CRIMES AND PUNISHMENTS
Current through 2012 First Extraordinary Session
§ 431.076. Expungement of criminal records for those found not guilty of crimes or for whom charges have been dismissed with prejudice
(1) A person who has been charged with a criminal offense and who has been found not guilty of the offense, or against whom charges have been dismissed with prejudice, and not in exchange for a guilty plea to another offense, may make a motion, in the District or Circuit Court in which the charges were filed, to expunge all records including, but not limited to, arrest records, fingerprints, photographs, index references, or other data, whether in documentary or electronic form, relating to the arrest, charge, or other matters arising out of the arrest or charge.
(2) The expungement motion shall be filed no sooner than sixty (60) days following the order of acquittal or dismissal by the court.
(3) Following the filing of the motion, the court may set a date for a hearing. If the court does so, it shall notify the county or Commonwealth's attorney, as appropriate, of an opportunity for a response to the expungement motion. In addition, if the criminal charge relates to the abuse or neglect of a child, the court shall also notify the Office of General Counsel of the Cabinet for Health and Family Services of an opportunity for a response to the expungement motion. The counsel for the Cabinet for Health and Family Services shall respond to the expungement motion, within twenty (20) days of receipt of the notice, which period of time shall not be extended by the court, if the Cabinet for Health and Family Services has custody of records reflecting that the person charged with the criminal offense has been determined by the cabinet or by a court under KRS Chapter 620 to be a substantiated perpetrator of child abuse or neglect. If the cabinet fails to respond to the expungement motion or if the cabinet fails to prevail, the order of expungement shall extend to the cabinet's records. If the cabinet prevails, the order of expungement shall not extend to the cabinet's records.
(4) If the court finds that there are no current charges or proceedings pending relating to the matter for which the expungement is sought, the court may grant the motion and order the sealing of all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records. The court shall order the sealing on a form provided by the Administrative Office of the Courts. Every agency, with records relating to the arrest, charge, or other matters arising out of the arrest or charge, that is ordered to seal records, shall certify to the court within sixty (60) days of the entry of the expungement order, that the required sealing action has been completed. All orders enforcing the expungement procedure shall also be sealed.
(5) After the expungement, the proceedings in the matter shall be deemed never to have occurred. The court and other agencies shall reply to any inquiry 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.
(6) Inspection of the expunged records may thereafter be permitted by the court only upon a motion by the person who is the subject of the records and only to those persons named in the motion.
(7) This section shall be retroactive.
Cite as KRS 431.076
History. Effective: June 20, 2005
Amended 2005, Ky. Acts ch. 99, sec. 648, effective June 20, 2005. -- Amended 2000, Ky. Acts ch. 426, sec. 1, effective July 14, 2000. -- Created 1996, Ky. Acts ch. 374, sec. 1, effective July 15, 1996.
I am trying to give you a general answer to your question. We do not have an attorney-client relationship by this response on the avvo website. I have not been retained to represent you. I am licensed to practice law in Kentucky and in federal court in this state and the Southern District of Indiana. You need to seek legal advice from an attorney licensed to practice in your area..
Criminal Defense Attorney
Based upon subsection (4) of the expungement statute (already posted by Attorney Mascagni in his answer to your question), I think it is unlikely that you could get only the possession of marijuana charge expunged now because you still have a charge pending relating to the matter. This means you may have to wait until both charges have been dismissed and then wait another 60 days after the dismissals (due to the time constraints stated in the statute) to file for expungement of both charges. You should, however, consult with an attorney regarding your entire criminal history.
Kristin M. Russell is an attorney licensed to practice law in the Commonwealth of Kentucky. Per Avvo guidelines, these answers are for informational purposes only and do not constitute legal advice. This response does not create an attorney/client relationship.