Expungement Eligibility – Can I get this off my record?
You were young, drunk, in a bad time in your life, or took a plea deal “just to be done with it.” Whatever the reason, a prior conviction can be a lot like the proverbial skeleton in a closet – except people know about it and more often than not information on it is publicly available (through online searches or a trip down to the clerk’s office). It almost goes without saying that a past interaction with the legal justice system can hinder employment opportunities and harm a person’s life for decades. The harm of a prior conviction is increased if that prior offender has moved on, changed their lives, or has grown in a different and positive direction.
Even if a person was found not guilty or the prosecution withdrew the charges, record of those charges are probably still available. Sometimes, these prior charges are discoverable through a simple Google search. Employers and private investigators use these searches to filter employees, find information, and make snap judgment calls about how a person has lived their life and will continue to live in the future.
Pennsylvania law recognizes the problem, and allows a person under certain circumstances, to “expunge” or “limit access” to their record from the eyes of private and public searches. There are essentially three ways to remove or conceal a prior conviction: expungements, petitions for limited access, and pardons. For this post, I will only discuss expungements and petitions to limit access.
Expungements are Court Orders that direct certain administrative offices to destroy and/or return records of a criminal proceeding to the former defendant. These offices typically include the arresting agency, the local Police Department, the Sheriff’s Office, the State Police, and even the Federal Bureau of Investigation. Once the records are destroyed, they no longer become publicly searchable. However, the District Attorney of the county keeps the record, and the prior conviction can be used for a subsequent criminal investigation or determining eligibility for diversionary programs in the future.
Pennsylvania law covers expungements in Title 18, Section 9122. Even though the law allows for an expungement of a criminal record, the statute ultimately defers to the judge to decide whether or not to grant the expungement. Expungements under Section 9122 may be given for the following:
- Data from a non-conviction (Not Guilty or Charges Dropped);
- A person with a record who is over 70 years old and free from arrest or prosecution for ten years;
- A person who has been dead for three years;
- A person convicted of a summary offense and free from arrest or prosecution for five (5) years following a conviction can expunge that particular offense; and
- A case that has no action pending, is older than 18 months from the date of arrest, and there is not a conviction on the record.
Furthermore, Pennsylvania allows for expungements upon completion of certain diversionary programs, such as Accelerated Rehabilitative Disposition (ARD). Under the current law, this means that generally misdemeanors and felonies cannot be expunged!
Once a person has determined that a prior charge or conviction is eligible for an expungement, that person must then file a petition with the court to expunge the criminal record or specific charge. Procedure for expungements is governed by Pennsylvania Rules of Criminal Procedure 790 (Court Cases) and 490 (Summary Cases), and the person requesting an expungement must provide certain information such as their name, address, name of the judge who heard the case, etc. ARD dispositions are covered under Pennsylvania Rule of Criminal Procedure 320.
Different counties within Pennsylvania also have different rules regarding expungement procedure. Please be aware that a judge may grant or deny the petition to expungement, even if you are otherwise eligible under the rule.
Petitions for Limited Access
While expungements are typically only valid for summary offenses, in 2016 and again in 2018 the Pennsylvania legislature changed the law to allow people previously convicted of certain misdemeanor offenses to petition the court of jurisdiction to limit access to their record to only criminal justice agencies. See Title 18, Section 9122.1 and 9122.2. The 2016 law contained a number of provisions and exceptions, but generally allowed a person previously convicted of a “qualifying misdemeanor or ungraded offense,” and free from a conviction for ten (10) years, to petition a court to limit access of that record.
In June of 2018, the law was amended again to require criminal justice agencies in Pennsylvania to routinely clean their own records and remove them from public access. The effect of that law is currently unknown because it is so new. Despite these changes, the law in its current form does not allow a person to limit access of criminal records for certain offenses, specifically: offenses against the family, offenses related to firearms, sexual offenses which require registration, cruelty to animals, corruption of minors, or persons previously convicted felony. The new law has a handful of nuances and can get very complicated, so you want to hire an attorney to see if you might be eligible.
Outside of the exceptions mentioned above, the following previous convictions are subject to limited access:
- A person convicted of a misdemeanor of the second degree, punishable by no more than two years’ incarceration, and free from a conviction for 10 years;
- A person convicted of a misdemeanor of the third degree, punishable by no more than two years’ incarceration, and free from a conviction for 10 years;
- Criminal history information for charges that were dropped or where the person was found not guilty;
- A summary offense older than 10 years.
As it stands right now, the law is still new and therefore will likely change in the future. For now, expungements destroy records for mostly summary offenses and you may want to consider hiring an attorney to limit access to your record, or seeing if you qualify for an expungement or petition to limit access. At this time, removal of a felony charge requires a governor’s pardon.
It is important to remember that a prior conviction almost never “goes away” even if it has been expunged. If you have been convicted, accused of a crime, or are otherwise facing the burden of a prior prosecution against you, please feel free to use the information contained within this article. Expungements are generally only available for summary offenses and diversionary programs. The new law, which allows a person to limit access of a prior record to only criminal justice agencies, is relatively complicated and does not allow a person limit access for most offenses.
Nothing in this article constitutes legal advice. If you need a lawyer for an expungement or another criminal matter, please contact our office as soon as possible. Our contact information is listed below.
Grant P. Bloomdahl graduated from Temple University School of Law in 2018. Throughout law school he worked at van der Veen, O’Neill, Hartshorn, and Levin focusing on criminal defense cases. Also during law school, he interned for the Honorable Susan Piekes Gantman of the Superior Court of Pennsylvania, the Defender’s Association of Philadelphia, the Federal Defenders of the Eastern District of Pennsylvania, and the Foundation for Individual Rights in Education (FIRE).
He works primarily on Civil Rights and Criminal Defense Cases.