First, an applicant must only have one, single, count or charge, whether it's a misdemeanor or felony. If a person has more than one conviction on their record, whether it was multiple counts from the original case, or separate convictions, they are not eligible. Second, certain offenses cannot be expunged. Traffic offenses for example, even something as simple as driving on a suspended license, a lot of high level or capital felonies, and other offenses as listed in the applicable statutes, cannot be expunged. It depends on which offense is currently on the person's record.
How does the process work?
Any effort to expunge an offense cannot commence until five years after the date of conviction.
The process starts with an application, preferably with an affidavit and certified copy of the original conviction. The applicable statute and application contains more detail. Applications may need to be notarized and potentially witnessed as well, depending on the materials.
Next, you will be required to submit to fingerprinting and a background check. Out-of-state convictions count. It is vital to make sure there is nothing out-of-state that could show up during this background check.
Lastly, applicants will need to schedule a hearing and appear before a judge to convince the judge that they are worthy of having the offense expunged in order to complete the process. The process usually takes several months.
There are numerous potential obstacles along the way. There are no guarantees, even if an application is properly filled out and a person's background is clear.
Some judges closely scrutinize prospective applicants and are hard to convince. Judges often reject prospective applicants for several reasons.
Red flags include whether an applicant had later contacts with police, if they were charged with any new offenses but acquitted, whether the prospective applicant had aggressive interactions with law enforcement during the original charge, or many other potential factors. If a person served a term of probation and if they had problems with their probation officer, that could be a red flag. Further, if a victim in the original offense had especially strong feelings regarding the conduct, that could be an issue. The prosecuting attorney may also have objections.
Basically, a judge will closely scrutinize how the prospective applicant lived their life since the conviction.
If an applicant is successful during their hearing, the presiding judge will grant an order expunging the conviction. If the applicant files the appropriate paperwork with a copy of that order, the police will then potentially destroy any fingerprints on file from the original case. An expunged offense should be off a person's public record. However, there may be traces of the proceedings still in court-files or other locations. Further, law enforcement officials and court-officers may still have some access or awareness of the prior conviction. However, removing it from the public record will make it very difficult to find, especially if a person follows up with the police and gets their fingerprints destroyed.
While it may take some work, expunging a past criminal conviction is worth the effort. However, it takes work, organization, and a willingness to put the time into the process.