If you have been arrested or convicted of a crime, you may possibly have the arrest or conviction cleared from your record. If, as a juvenile, you were found to be under the jurisdiction of the Juvenile Court, you may be able to have that contact cleared from your record. This process is known as "setting aside" your arrest or conviction or "expunction." If you qualify and complete this process, you may then treat the arrest, conviction or juvenile court contact as if it never happened. In other words, if you have set aside a conviction for a crime, you may state on any job application that you have never been arrested or convicted of that crime. It is important to note that persons reviewing different kinds of applications can still find out about prior involvement in the criminal justice system if they look in the right types of places.
Charges that may be set aside include most violations, misdemeanors, Class C felonies, and those felonies that may be treated as misdemeanors. Most Class A and Class B felony convictions may not be set aside. You cannot set aside any type of traffic violation (such as speeding) or traffic crime (such as DUII). Violent felonies covered by Ballot Measure 11, most sex offenses and offenses involving child abuse may not be set aside. There is a new provision in the law which allows some very old but serious drug convictions to be set aside under very limited circumstances. The following are guidelines to determine if you qualify to set aside an arrest or conviction:
If you were arrested but the charges were not actually filed in court, the record of the arrest may be set aside after a one-year waiting period. If the arrest did result in charges being brought against you, but the case was dismissed or you were acquitted in a trial, you may apply to set aside the record of the proceedings immediately after the dismissal or acquittal. In either situation, you must meet the following qualifications:
If you were convicted of the type of violation or crime that qualifies, you may, after a period of three years from the conviction, apply to set aside the record of the proceedings after a three-year waiting period. If you have been convicted of any other offense, other than traffic violations, you must wait 10 years. You must meet these conditions before applying to set aside the conviction:
When filing to have an adult conviction or arrest to set aside, you must pay an $80 fee. This pays for the state police fingerprint check. You may also have to pay a filing fee to the court, although this fee can sometimes be waived for indigent persons. You should apply in the court where the conviction occurred. Some courts have forms available for your use. You will need to send a copy of your motion to the prosecuting attorney. Since the prosecutor and the victim have the right to investigate your background, to file an objection, and to request a hearing, it can take some time before the court will rule on your motion. If you have any questions, or if there is any likelihood the prosecutor will object, you should consult with an attorney.
If you want to expunge a juvenile record, you must wait at least a five years after the termination of your most recent contact with the juvenile court and meet the following qualifications:
When you turn 18, the juvenile court must order expunction of your record if you were never found within the jurisdiction of the court or you meet the conditions described above. In most counties, this is not automatic. A motion must still be filed. In spite of the waiting period and other requirements, a juvenile court may still order the expunction if it finds that doing so would be in the best interest of you and the public. These rules apply to violations of non-traffic state laws and the local ordinances. You cannot set aside any traffic, boating or fish and game offense. You should apply to the court in which the arrest, conviction or juvenile proceeding occurred. Some courts have forms and guidelines on how to complete this process yourself, but be very careful if you choose to do this. Make certain the record is set aside by all agencies that may have records of the case. If you have any question about such procedures, you should seek an attorney's assistance.
Legal Editor: Greg Scholl, October 2013