Criminal Law 5

CLEANING UP YOUR CRIMINAL RECORD

     INTRODUCTION

Once you are arrested and/or charged with a crime, you will end up with a criminal record of some sort. Even if the charges against you are dismissed, the fact that you were charged will still show up on your record.

Some people have the mistaken impression that their criminal record will disappear after a certain number of years. This is simply not true. Under Texas law, a conviction will stay on your record for the rest of your life unless you are able to take the proper steps to get it cleared up.

Some people also think that their record is already cleared because they got “deferred adjudication” on their original charge. This is not really true either, because although a successful “deferred adjudication” will help you to avoid an actual conviction on your record, it will not erase the fact that you were arrested and charged in the first place.

     SOLUTIONS

There are generally 3 different ways to try and clean up your criminal record.

1. The first way is to get an “expunction” (also referred to as getting your records “expunged”).

2. The second way is to get your records “sealed” (also known as getting an “Order for Non-Disclosure”).

3. The third way is to get a “pardon” (also known as a form of "clemency").

EXPUNCTION

In certain cases a person can get their record “expunged”. An expunction of your criminal records actually ends up removing all records of your criminal charges, and also any evidence of your arrest for the charges. Generally speaking, you can officially deny that you were ever even arrested or charged with a crime once it is expunged (with some very rare exceptions). This is the best possible solution if you can get it.

     ELIGIBILITY

However, only some people who were charged with a crime are eligible for an expunction. The eligibility requirements are very strict.

An expunction is generally available when the person went to trial and was found “not guilty” of the charges. There may be an exception if the person was charged with additional crimes and was convicted of them. There may also be an exception if the person is still subject to prosecution for a felony offense "arising out of the same transaction" as the offense for which the Defendant was found "Not Guilty" at trial.

An expunction is also generally available in cases where the charges were dismissed without any type of "probation" plea bargain agreement. There are some exceptions, like when one case is “taken into consideration” for another (a person pleads guilty on one charge to get another charge dismissed). In those cases, the person may or may not eligible for expunction of the case that was taken into consideration.

A person who ended up with a deferred adjudication probation may or may not be eligible for an expunction. We have to first determine whether or not they got the “supervised” or “unsupervised” version of deferred adjudication. If they received the “supervised” version they are not eligible. If they received the “unsupervised” version, then they generally are eligible.

They are also generally eligible for an expunction if they received deferred adjudication for a “Class C Misdemeanor.” The reason this type of misdemeanor is automatically eligible for expunction is because deferred adjudication on a Class C misdemeanor always comes with an “unsupervised” type of probation. Class C misdemeanors include the following type of offenses: traffic tickets; public intoxication; minor in possession of alcohol; possession of drug paraphernalia; and "simple" assault cases.

An expunction is also usually available in cases where the person got a “pre-trial diversion” on the charges. This is different from a regular plea bargain agreement, because it does not not require placing the Defendant on any type of supervised probation.

     NON ELIGIBILITY

A person is not eligible for an expunction if they were actually convicted of the crime they were charged with. Keep in mind that if a person actually went to jail for their crime, they generally ended up with a conviction for it, even if they made a deal to get "time served" on their case. In addition, if a person got regular probation on their charges, they also ended up with a conviction on their record.

     WAITING PERIODS FOR EXPUNCTIONS

In the case of a not-guilty verdict, the expunction is available right after the trial is over. In other cases, an expunction is not always available right away.

In the case of pretrial diversion, an expunction is available as soon as the person completes the program requirements and probation term.

In cases where the charges are dismissed without any type of pretrial diversion, you generally have to wait until the statute of limitations has run on the charges. (2 years for misdemeanors and 5 years for felonies). You do not have to wait if you can prove that the charges were dismissed because of “mistake of fact, or other evidence suggesting a lack or probable cause for the charges” in the first place.

SEALING RECORDS - PETITION FOR NON-DISCLOSURE

If you are not eligible to have your record “expunged”, you might still be able to get them “sealed” by obtaining an “Order of Non-Disclosure.”

You are generally eligible if you received a “deferred adjudication” for the charge AND it has been at 2 years (for misdemeanors), or 5 years (for felonies) since you successfully finished your probation. However, you must also show that you have not gotten any new convictions in the meantime.

In addition, some charges are not eligible for the “non-disclosure.” These include serious felony charges, and any case "involving family violence."

Keep in mind that a “non-disclosure” is not quite as good as an “expungement.” The order does prevent the average person from finding out about your record, but does not prevent law enforcement and certain other government agencies from being able to look up your record. If you ever apply for a state license of any kind, you will still have to disclose the existence of the charges against you.

Also, note that there are numerous private record keeping agencies out there that keep a list of criminal records on people. Some of them may only update their records once a year, so it could be awhile before the full effect of the "expunction or “non-disclosure” protection kicks in.

JUDICIAL CLEMENCY & PARDONS

The Governor of the State of Texas has authority to grant “clemency” to a person. A pardon is one form of clemency. The Governor is only supposed to grant clemency “upon written recommendation of a majority of the Board of Pardons and Paroles.”

Clemency can include:
  Full pardons after conviction,
  Full pardons after successful completion of a term of deferred
  adjudication community supervision,
  Conditional pardons,
  Pardons based on innocence,
  Commutations of sentence,
  Emergency medical reprieves, and
  Family medical reprieves

Clemency is only granted in special circumstances. These circumstances can include cases were a person has been proven to be innocent, and had their conviction overturned. It can also include cases where a person has only one charge in their entire life, the charge is at least 10 years old, and they have made extraordinary efforts to rehabilitate themselves and become an outstanding member of society since then. A pardon is not available just because a person is very sorry for their crime, or is having a really hard time getting a job because of their past record.

The President of the United States of America also has the right to grant pardons under the Constitution. Such pardons are rarely granted, but can be under special circumstances. Certain federal drug cases can now be eligible for a commutation in prison sentences. This does not erase the crime from a person's record, but can allow them early release from prison.

(SEE BELOW FOR LINKS TO OTHER SECTIONS)

INTRODUCTION

OPTIONS FOR HANDLING YOUR CASE

DWI & LICENSE SUSPENSIONS

FEDERAL CRIMINAL CASES & APPEALS

CRIMINAL LAW FORMS

Lawyer Stephen Gordon | Lawyer Criminal Defense

Lawyer Stephen Gordon | Top Attorney Criminal Defense