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It's The Law: Criminal Record Can Be Expunged

Q: I got arrested when I was 18 for disorderly conduct, but the charges were dropped. Recently, I applied for a job and my application was denied because of the arrest which happened over 40 years ago. Is there a way to seal my record so that the arrest won’t show up? Is there a way to remove the record completely?

A: To help answer your question, I enlisted my associate Michelle White, who formerly worked in the Miami-Dade Public Defender’s Office. Fortunately, arrest records do not have to follow you around forever. Florida Statutes §943.0585 and 943.059 set forth the criteria for having a record sealed or expunged.

A sealed record is one that is not accessible to the general public, but can be located and read by authorized governmental and related entities, such as any criminal justice agency, the Department of Education, any school related entity and the Florida Bar. An expunged record is also removed from public access. Those governmental and related entities that can find and view sealed records will only find that the subject of their inquiry has an expunged record, but will be unable to view the record without a court order.

To have a criminal history record sealed or expunged within the State of Florida, an individual must first make application to the FDLE for a Certificate of Eligibility. It is important to understand that the issuance of a Certificate of Eligibility does not mean that your criminal history record will be ordered sealed or expunged. It confirms only your eligibility merely indicates that you are statutorily eligible for the type of relief that is being requested.

There are several disqualifying factors for having a record sealed or expunged. First, there is a list of crimes, or “ineligible offenses” for which arrest records cannot be sealed or expunged even if adjudication is withheld. This list includes crimes like homicide, kidnapping, procuring a minor for prostitution, lewd and lascivious offenses, drug trafficking, and sexual battery. If you were arrested for or charged with any of the “ineligible offenses” and the charges were later abandoned, dropped, or dismissed you may be eligible to have your record sealed or expunged.

In addition, criminal convictions are ineligible for sealing. That means if you have been adjudicated guilty of any criminal offense you are ineligible for having your record sealed. This includes convictions for misdemeanors and criminal traffic offenses like driving under the influence (DUI) and driving while license suspended (DWLS). So, if a person has been adjudicated guilty of any criminal offense in any jurisdiction, his or her application to seal or expunge will be denied. Any findings of not-guilty, withhold of adjudication, or dismissals of a charge can be sealed provided it is not on the list of “ineligible offenses.”

The same criteria apply for expunction of a record, with certain additions. Expunction will be denied for any charge which resulted in a withhold of adjudication or of a not-guilty verdict after trial, unless the record has been sealed for at least ten years. That means that if you pled to a withhold of adjudication on the disorderly conduct charge, you would first have to apply to have it sealed for ten years before you could apply to have it expunged. However, a charge which was dismissed may be expunged immediately.

Another eligibility criteria for an applicant to have a record sealed or expunged is that the person applying has never had a record sealed or expunged before. This includes any records sealed or expunged in another state. In some rare circumstances a person may seal or expunge more than one record if the Court makes a finding that the arrests were directly related to one another. However, the norm is that if you have been arrested multiple times, even if the charges have all eventually been dropped, you are only eligible to have one arrest sealed or expunged.

According to Florida law, once you have a record sealed or expunged, you can legally deny or fail to acknowledge the arrests covered by the sealed or expunged record. However, there are certain circumstances under which you cannot deny or fail to acknowledge the arrest. For example, if you are applying to change you immigration status, are a defendant in a criminal case or are seeking employment with a criminal justice agency you must acknowledge a previous arrest even if you have had the record sealed or expunged.

The process for having a record sealed or expunged is long and complex. Most people applying can expect the entire process to take between six to eight months. Anyone seeking to have their record sealed or expunged, or with questions whether they qualify, should consult with an experienced attorney as soon as possible.

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