Expungements

Expungement of Criminal Records

The term “Expungement” refers to a court order that mandates the physical destruction of criminal records. If a county judge approves Expungement, all evidence of the case will be destroyed, including your rap sheet, mug shot, fingerprints and physical court file. If expungement is approved, all agencies that have your information on file will be ordered to destroy all records of the arrest and include the local police, the state police, District Court, the County Clerk, and any other governmental agencies that have your case on file. If the case involved a DUI, the only agency that is exempt from destroying your record is Penndot, as records of DUI suspensions are kept on file for 10 years.

In Pennsylvania, a case is eligible for Expungement by a county judge only in very limited situations. A case can be expunged from your record if you were found not guilty of a criminal offense or if some or all of the charges were dropped (nolle-prossed) by the Prosecutor.

A case may also be expunged if you completed a first-time offender program, such as ARD, Section 17 or other pre-trial diversionary program. Some counties file for expungement automatically upon completion of a first-time offender program, while in other counties, defendants must file their own expungement motions after completion of a program to get the charges off their record.

If you were convicted, or pled guilty to a criminal offense, Pennsylvania law does not permit Expungement until the individual turns 70 years of age. If you were convicted, the only way to totally remove it from your record would be to apply for a Governor’s Pardon.

If you were convicted or found guilty of a Summary Offense such as Disorderly Conduct, Underage Drinking, Public Intoxication or summary Retail Theft, then the case may be expunged after 5 years or more of arrest free behavior have elapsed.

Once the judge approves the expungement, the clerk certifies the order and serves it on all agencies who have your case on file. The agencies are required to destroy all records and typically return an affidavit of compliance to the attorney or to the petitioner. It is extremely important that all information in the expungement petition is accurate and complete in order to successfully expunge a case.

Expungement Process

A Motion for Expungement must be filed with the Clerk of Courts in the county courthouse. Again, it is imperative that the motion be completed accurately, as mistakes or typographical errors can be fatal to the case getting expunged. After the expungement is filed, the District Attorney has the opportunity to object and a hearing will be held whether the expungement should be granted. If the DA does not object, the expungement is usually granted without a hearing.

In a contested expungement hearing, evidence and argument must be presented by the defense to convince the judge that the negatives of the criminal record outweigh the state’s interest in maintaining the record. Evidence can consist of testimony, character witnesses, age, history of employment, age of the conviction, proof of treatment and other factors which demonstrate impact of a criminal conviction.

Limited Access Expungment

If you were convicted of a second or third-degree misdemeanor, also known as M2 or M3 misdemeanors, you may be eligible for “Limited Access” Expungement. While technically the case in not expunged or destroyed, your information would be “hidden” from public access and only law enforcement and state agencies would be able to view this information.

In order to be eligible for Limited Access Expungement, the conviction must be for certain M2 or M3 misdemeanors and the individual must remain arrest free for at least 10 years after supervision has ended. Some examples of 2nd and 3rd degree misdemeanors include simple drug possession, possession of paraphernalia, Disorderly Conduct, minor theft charges and DUI, among others. There are some excludable offenses where Limited Access Expungement is prohibited, such as Simple Assault and misdemeanor sex offenses.

The procedure to file a Limited Access Expungement petition is similar to the procedure to file a typical expungement motion.

Pennsylvania’s Clean Slate Law

In early 2019, the governor signed into law the Pennsylvania Clean Slate law which allows criminal records to be sealed after 10 years for certain criminal offenses. According to this law, some first-degree misdemeanors (such as Simple Assault), may now be sealed, whereas in the past, these offenses would remain on an individual’s criminal record for life.

So what does it mean when a record is “sealed“? While the case is not expunged off of your record, it would not be available to the general public, so potential employers, landlords, schools, etc. would not have access to your criminal record, also known as a rap sheet. However, law enforcement still has access to these records which includes police, the FBI, the District Attorney’s office and the courts.

In order to have your record sealed, At least 10 years must elapse and it must be an eligible offense. Sealing records will become automatic in 2021. Prior to the automatic procedure going into effect, individuals must file their own motion in the county court where the connection has occurred to have it sealed. This motion would be similar to an expungement motion and a court hearing would be scheduled to determine if the record would be sealed. Once the case is sealed, a conviction would not have to be disclosed to potential employers, landlords or the general public. It would however have to be disclosed to a criminal justice agency if it requests this information or if disclosure is required under federal law.

If you are looking to expunge or seal your record it is best to retain an experienced criminal defense attorney to assist you to ensure that it is done correctly. Additionally, a court appearance may not be required if you have an attorney representing you, depending upon the county where the petition is filed.

Governor’s Pardon

If you were convicted, the only way to totally remove it from your record would be to apply for a Governor’s Pardon. The Pennsylvania Board of Pardons will review your application to determine if a public hearing would be held in Harrisburg. At this hearing, evidence is presented to convince the Board to recommend a pardon to the Governor. Evidence can consist of testimony from the Petitioner as to why the pardon is necessary, character witnesses, proof of treatment, and other evidence as to why the pardon is needed. The Board of Pardons would then either deny the case or recommend a pardon to the governor, who has the final say whether the case would be expunged.

The Pardon Process

Unfortunately, the process to obtain a pardon is lengthy in Pennsylvania but has improved substantially in recent years. It takes approximately 2 years from application to hearing which is substantially shorter than under prior governors. If you were convicted of Marijuana Possession and/or Possession of Drug Paraphernalia, there is an expedited Pardon process that takes approximately 1 year. According to the latest statistics, less than 2 out of 3 pardon cases are given a public hearing in Harrisburg. However, the good news is that 80% of these Pardon hearings are successful in convincing the board of Pardons to recommend to the governor that a pardon should be approved.

Why You Should Attempt to Obtain a Pardon

If you were found guilty of any crime, you have a criminal record. This record consists of a rap sheet, fingerprints and a mugshot. Additionally, the case also appears on the internet on the PA online docketing system which is accessible by the general public. Criminal records are not expungable until an individual turns 70 years of age, so the only way to remove a conviction is to obtain a pardon from the governor. Criminal records can affect an individual’s current employment, as an employer can fire an employee in Pennsylvania for any reason whatsoever, so long as it is not discrimination. Criminal records can also affect future employment as a rap sheet will follow an individual for life and can be accessed through an internet background check or by ordering a rap sheet from the Pennsylvania State Police.

Additionally, there are certain occupations in Pennsylvania that are controlled by professional licensing boards and convictions could jeopardize an individual's professional license. Some professions where a license board may or will consider a criminal conviction are:

• Attorney
• Casino Employee
• Cosmetologist
• Dentist
• EMT
• Funeral Director
• Home Health care worker
• Insurance Adjuster
• Nurse, (both RN and LPN)
• Physician
• Physician’s Assistant
• Real Estate Broker

This list contains some examples as there are numerous other licensing boards for other professions that will consider a criminal conviction.

The Pardon Procedure

Step 1: Application. An individual seeking a pardon must submit an application to the Board of Pardons in Harrisburg. It is very important that the application is filled out perfectly because if it is not, the application will be returned for changes which will add delay. Supporting documentation can be attached to the petition including a personal statement, character letters and additional documentation. The Board of Pardons will review the application which could take up to one year and will determine if the application will be sent to Step 2. If your application is rejected, you must wait at least one year to reapply.

Step 2: Investigation. If the Board decides to move forward the second step is investigation. This is done through the Probation and Parole Department in which a parole officer will contact you, the DA, the judge who handled your case, a victim, etc. and provide a report to the Board of Pardons. The Board will then move to Step 3, which is a Merit Review to decide which applicants will be given a public hearing.

Step 4: Public Hearing. A public hearing is held before the Parole Board in Harrisburg. The applicant will testify for up to 15 minutes to state the case why a pardon should be granted. The members of the board can ask the applicant questions which typically inquire about the original criminal charges and what the individual has done to change. The Board will then vote to determine whether a Pardon will be recommended to the governor.

Step 5: Governor’s Decision. If the Board of Pardons recommends a Pardon to the Governor, then the governor must decide whether he will sign the pardon. Once the pardon is signed by the governor, the final step is to file a Petition for Expungement in the county where you were convicted which a judge is required to honor the Pardon and order that your record be expunged.

Whichever form of expungement is appropriate for your case, having an experienced attorney representing you would increase your chances of success. Attorneys are aware of the information necessary to be included in a motion and would be aware of any legal arguments and strategies to give you a greater chance of success.

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