Expungement and sealing: how to find out if you qualify

Expungement and sealing are the two main ways the law lets a person close an old arrest or court record to the public. The words mean different things, and each state defines them for itself.

Expungement and sealing

• Expungement means destroying or striking out records. Some states remove an expunged arrest from every database, so the person can deny the arrest; others still keep a public record of the arrest after it is expunged.
• Sealing stores civil or criminal records away from public access. Normally only a court can seal a record. In many states a sealed record is hidden but a court can still see it in later litigation; in others the record is destroyed.

States also use their own names. California's court self-help guide says true expungement does not exist in California, though there may be other ways to clean a record there. Go by the word and the process your state uses.

Who qualifies is set state by state

Each state writes its own rules: which records can be closed, how long you must wait, and how to ask. Cornell's legal encyclopedia describes patterns that hold in many states:

• The kind of offense. Most states limit which crimes can be expunged. The most common exclusions are murder, rape, terrorism, capital offenses, and assault with a deadly weapon that caused serious injury.
• How the case ended. Juvenile charges, dropped and dismissed charges, and low-level misdemeanors are the records most likely to qualify. Some places close juvenile records automatically once the person reaches a certain age.
• Waiting periods. Many states make you wait. In Minnesota, for example, the Washington County Attorney's Office explains that most criminal records carry a waiting period, that it usually starts when probation ends, that it can run from zero to five years or more, and that a new offense can extend it or end eligibility.

Check your state. The rule that decides a case is in that state's statutes and its court self-help pages, not in a general list.

The one narrow federal case

Federal law has one expungement statute, and it is narrow (18 U.S.C. 3607). It covers a person found guilty of simple drug possession under 21 U.S.C. 844 who had no earlier drug conviction and has not used this provision before. With that person's consent, the court can place them on probation for up to a year without entering a judgment. If the probation is completed, the case is dismissed, and it does not count as a conviction for the purpose of a disqualification or disability. If the person was under 21 at the time of the offense, the court must, when asked, enter an expungement order that removes the arrest and the case from official records; the Justice Department keeps a nonpublic record. For any other federal offense, the Justice Department's pardon office says to contact the court of conviction.

A pardon is not an expungement

The Justice Department's pardon office says a presidential pardon does not expunge or erase the conviction, and the pardoned offense would not be removed from the criminal record. The President's pardon power reaches federal offenses only; for a state conviction, the office points people to the authorities of that state.

How to start

1. Get the record. Find the case number and how the case ended: see how to look up a court case.
2. Find your state's process. It usually begins with a petition filed with the court that handled the case, and a fee. The clerk of that court and the state court system's self-help pages have the forms.
3. Ask about the fee. If you cannot afford it, ask the clerk whether the court will waive its fees for the petition.
4. Ask for help when it gets complicated. California's guide calls the law on cleaning a record complicated and suggests legal help for anyone who gets stuck. A legal aid office is a place to ask.

For what a closed record means for the public file, read are court records public?