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12 THINGS EVERY CIVIL LAWYER SHOULD KNOW ABOUT SEALING AND EXPUNGING ARREST RECORDS

  • January 2nd, 2011
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1. Arrest records are forever.  With the advent of today’s electronic databases, criminal records are readily available and visible to most of the public. Even cursory background checks will turn up criminal records.  Like the Violent Femmes said back in 1983, “I hope you know that this will go down on your permanent record”.

[1]  But “don’t get so distressed”,

[2] there may be hope in sealing or expunging the record.

2. There is no magical expunction fairy for juvenile records.  Some juvenile records are required by statute to be maintained until the juvenile turns 26 years of age.  Additionally, if the person is arrested before they turn 24, their juvenile record may be used against them.  § 943.0515 Fla. Stat. (2009). A juvenile record may be expunged pursuant to § 943.0582 Fla. Stat. (2009), but the Application must be made within six months of resolution of the case.

3. There is a difference between sealing and expunging a record.  If a record is sealed, it is placed inside an envelope, sealed and instructs that it may not be opened without a court order. If a record is expunged, it is physically destroyed.

4. There are similarities between sealing and expunging.  Both sealed and expunged records are removed from all public records databases.  Additionally, whether sealed or expunged, a person may legally deny the existence of that record in most circumstances.

5. A person can only have one offense sealed one time. If multiple offenses occurred at the same time, they may all be sealed together. However, once you seal or expunge a record, you are not eligible for this relief again.

6. There is an exception to the one time rule.  If you timely expunge a juvenile record pursuant to Florida Statute §943.0582, you may later seal or expunge an adult criminal record.

7. If a record is sealed or expunged you can legally deny that it exists.  The only exceptions to this benefit are when applying for a job with a criminal justice agency, when a defendant in a criminal case, when applying for another sealing or expunction, when a candidate for admission to the Florida Bar, when applying to the Department of Education, when seeking employment authorization from a seaport or when seeking employment with a government agency that put you in direct contact with children, the disabled or the elderly.

8. Background check companies may discover a criminal record before it is sealed. There is no requirement that once a record is sealed or expunged that private companies remove the charge from their database.  It may take extra work to completely clear a criminal record.

9. It takes about six months to seal or expunge a record.  The majority of that time is waiting for the FDLE to process the application.

10. The requirements are strict.  Only cases where the charge was dismissed or adjudication is withheld are eligible for sealing.  Certain categories of offenses are ineligible altogether.  Additionally, the petitioner can have no other criminal conviction on their record.

11. You should consult with a professional before sealing or expunging a record.  There are subtle details to make sure that the application and petition are filled out correctly and because the process takes such a long time, it makes sense to make sure that it is done correctly the first time.  If done incorrectly or incompletely, the Petitioner may not get the full relief they are entitled to and may not be able to go back and “fix” those errors.

12. Consider getting a copy of the file before it is sealed or expunged.  You never know when a document may be needed later.

Bruce H. Denson is a member of the Florida Bar and a criminal defense attorney.  His website www.therecordsealer.com is a simple, user-friendly website, designed to give a free evaluation of whether a person is eligible to have their record sealed or expunged.