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Eligible to seal or expunge their criminal record

Phil Photo New By Philip M. Snyder

As a criminal defense attorney in Fort Lauderdale, I oftentimes receive inquiries regarding whether a client is eligible to seal or expunge their criminal record.   I created this “cheat sheet” for my clients to understand the benefits of sealing or expunging a criminal record and the common reasons for denial.

Benefits

Due to the economic downturn, the unemployment rate in the United States is hovering around 9%-10%.   As a result, employers can be very particular with their new hires and may preclude hiring an individual with any criminal record.  Worse yet, with advances in technology, employers can inexpensively uncover your criminal history from anywhere in the United States with no time limitations.  I recently had a client fired from his job for not disclosing a misdemeanor marijuana charge from 1978!  In addition to employers, criminal background checks are common when applying for housing, professional licenses, security clearance, and certain bank loans.  I have even heard of potential dating partners researching an individuals’ criminal history before dates.

When you seal or expunge your criminal record, your criminal history is no longer accessible to the public.  Such criminal history includes your Court Case number, your Jail file, and the police record of the incident (i.e. probable cause affidavit).  Please be aware, that if you were arrested for a crime, even if the charges were never filed or your case was dismissed for any reason, the record of your arrest and Court Case remains public access until you seal or expunge your case.   It is worth repeating that even if the State Attorney’s Office “dropped” or announced a Nolle Prosequi (“Dismissal”) of your case, the record of your arrest and Court Case are still available for employers to view until you seal or expunge your case.

In most situations (including all expungements), you may legally deny that you were ever arrested for the crime that you had sealed or expunged.  Think of the value of not having to tell an employer of your youthful indiscretion or poor-behavior that is currently leaving an indelible mark on your resume.  The cost-benefit of spending a few hundred dollars to hire an attorney to seal or expunge your record could potentially net you tens of thousands of dollars in the future.   Please note, in Florida, it takes approximately 6-7 months for a Court to seal or expunge your record.    As a result, be proactive – do not wait until you are applying for a new job before petitioning the Court to seal or expunge your case.

Common Reasons for Denial

I receive dozens of phone calls a year from individuals who were improperly advised by their previous criminal defense attorney that they can seal or expunge their record of the arrest.  I am always amazed when criminal defense attorneys misstate the law on sealing or expungments as the Florida Department of Law Enforcement provides a detailed explanation on their website of which crimes are ineligible to be sealed or expunged.

By far, the most common inquiry I received concerns the criminal offense of Driving While Under the Influence.   In the State of Florida, anyone who accepts a plea to Driving While Under the Influence receives an Adjudication of Guilt.   An individual cannot receive a Withhold of Adjudication to Driving While Under the Influence, unless the State Attorney changes the charge to Reckless Driving.  The law is clear that an individual CANNOT seal or expunge their record if they have ever been ADJUDICATED guilty of any criminal offense, including Driving While Under the Influence or Driving While License Suspended.

The second most common inquiry concerns individuals who were improperly advised by their previous criminal defense attorney that they can always seal or expunge the record of their arrest if they received a WITHHOLD of ADJUDICATION to the charge.  Again, I consider this legal malpractice considering the Florida Department of Law Enforcement’s website specifically enumerates which crimes are ineligible to be sealed or expunged, regardless if adjudication of guilt was withheld. Of note, all the ineligible offenses are listed in Fla. Stat. 907.041.

Criminal defense attorneys most often misrepresent that the following crimes can be sealed or expunged if the client received a withhold of adjudication: (1) Burglary of a Dwelling; (2) Any act of domestic violence; and (3) Stalking.  These charges cannot be sealed or expunged even if the charge is a misdemeanor and you received a withhold of adjudication.  In addition, an individual can only seal or expunge their record on ONE occasion.    An individual cannot seal or expunge a charge in 2010 and expect to seal or expunge another charge in 2011.

Although you do not need an attorney to petition the Court to seal or expunge your criminal record, it is my recommendation to hire an experienced criminal defense attorney to handle this matter for you.    Most attorneys in Florida will charge anywhere between $500.00 – $1,000.00 to seal or expunge a criminal case.  As making sure you correctly seal or expunge your criminal record could be one of the most important decisions you make in your lifetime, it is beneficial to make sure it is done properly.