Clearing/sealing/expunging a criminal record

You are applying for a new job and your potential employer has warned you that a job offer will be contingent upon a background check.  You  wonder if your criminal record – a conviction perhaps or even just an arrest – will show up during this investigation, thereby jeopardizing your chances of getting the job.  If so, you want to know how to clear up this record.  Specifically, you want to know how to expunge or seal the record and ensure that it no longer shows up during a local, state or FBI background check.  

Below is everything you need to know:  

What is a criminal record? 
How do I know if I have a criminal record?  
Will my criminal record come up during a background check?  
If I have a criminal record, what can I do to seal, expunge or otherwise remove it?  

Also included are answers to frequently asked questions:

Will a traffic ticket or infraction show up on my criminal history?
Can I seal or expunge a federal criminal record?
Will I need to hire a lawyer to seal, expunge or clean up my criminal history?
How can I get my record sealed/expunged for free?
Is it better to seal or expunge a criminal record?
Can I get my criminal record expunged if I plead guilty or am convicted of a felony?

For information on expunging/sealing/clearing up a criminal record specific to Washington, D.C., please click here.  You can also contact D.C. expungement lawyer Jamison Koehler at 202-549-2374 or jkoehler@nullkoehlerlaw.net.  

WHAT IS A CRIMINAL RECORD?

Also known as a police record or colloquially as a “rap sheet,” a criminal record is a history of your contacts with the criminal system.  

There are many stages in a criminal case:  investigation, arrest, booking, charging and finally dismissal or conviction.  The type of criminal record that is created will depend on how far along the investigation/case progressed.  Were you just arrested?  Or were you actually convicted/found guilty? 

You need to understand the distinction among these different phases when filling out a job application or criminal background investigation questionnaire so that you can answer the questions that are being asked.  Many job applications, for example, will only ask if you have been convicted of a criminal offense. You should always read the questions carefully.  There is no need to offer more information than is requested. 

Police investigation

The first phase in a possible criminal case is the police investigation. Police officers arriving at the scene of a recent crime will typically conduct the first layer of the investigation.  This usually involves the questioning of all the parties, including the alleged victim, the alleged perpetrator and any eyewitnesses. In some cases, police will call in a crime unit to photograph the scene and to take fingerprint and DNA evidence.  A detective may do a second layer of questioning.  

In many cases, this is as far as the case will go.  Police might decide, for example, that there is not enough evidence to proceed further. 

While simply being investigated for a criminal offense should not result in a criminal record, there are always exceptions.  Police will typically prepare a police report after an investigation, even in cases in which no arrest was made.  This report is occasionally sent to the FBI, thereby creating potential problems.  

Arrest for a criminal offense 

If the police believe there is probable cause (i.e., a reasonable basis to believe that a crime occurred and that a particular individual committed it), the next phase would be to make an arrest.  An arrest is the taking into custody of a person by legal authority.  In some cases, the arrest will be made by police officers at the scene of the crime.  In other cases, police will obtain a warrant for the person’s arrest.  

During the arrest, police will handcuff the individual, search the individual for weapons or contraband, and then transport the individual to the police station for processing. 

“Booking” of an arrestee

The “booking” of a person who has been arrested for criminal activity includes the fingerprinting and photographing of the arrestee. It is relevant here because the resulting fingerprints are forwarded to the FBI for inclusion in the Automated Fingerprint Identification System (AFIS).  You now have an FBI record.  

Charging a person with a criminal offense

While police officers usually make the decision whether or not to arrest an individual, it is generally a prosecutor who will decide whether to proceed with the case through the formal launching of criminal charges – i.e., accusations – against the person.  The charging document in a misdemeanor case is usually a criminal complaint.  Grand jury indictments are used in felony cases.  

Although procedures in jurisdictions may vary, the “papering” (charging) of a case in Washington, D.C. is what results in the creation of a case record and entry of this record onto the public docket system.  You now have a criminal record that is accessible to the public.  

Dismissal of a criminal charge

There are a number of ways in which a criminal case can be dismissed without a conviction. In fact, the prosecutor can decide to dismiss a criminal case at any point in the process.  New or exculpatory evidence, for example, might cause the government to re-consider the strength of its case.  The government might decide to to enter a nolle prosequi of the charges after the defendant performs a set of agreed upon conditions (through, for example, the completion of community service).  Or the defendant could be acquitted/found not guilty of the charges after trial. 

Conviction of a criminal offense 

The alternative to the dismissal of the criminal charges is the worst case scenario for someone charged with a crime:  conviction.  A “conviction” is defined as the “act or process of judicially finding someone guilty of a crime.”  This is the result either of a guilty plea in which the person admits guilt or a finding of guilt by a judge or jury after trial.  A conviction is, of course, what will concern potential employers the most.  It will typically be followed by the imposition of some type of sentence – probation or incarceration

HOW DO I FIND OUT IF I HAVE A CRIMINAL RECORD?

To find out if you have a criminal record, you will need to check both state/local sources of information and the FBI database. 

Because jurisdictions vary with respect to how they maintain their records, there is no one-size-fits-all explanation with respect to state/local sources.  In Washington, D.C., for example, you can check the searchable on-line docket system here.  You can also request a copy of your criminal history report from the Metropolitan Police Department. There are similar databases in Maryland and Virginia.  

There are a number of different ways to obtain a copy of your FBI record.  You can file a request under the Freedom of Information Act.  Alternatively, you can file an Identity History Summary Check (IdHSC).  In order to do so, you will need to obtain a copy of your fingerprints and pay an $18 fee. 

WILL MY CRIMINAL RECORD COME UP DURING A BACKGROUND CHECK?

Whether a criminal record comes up during a background check will depend on how thorough the entity conducting the check will be.  For example, will the entity check criminal records across state lines?  Will the entity have access to the FBI’s database, the National Crime Information Center (NCIC)?  

Background checks can be conducted by both public and private entities.  There are many private organizations with searchable databases that will offer criminal results online.  Public entities, including law enforcement agencies, public schools, and immigration officials will all be able to access the NCIC.  

The NCIC is an electronic clearinghouse of data date that can be tapped into – 24 hours a day, 365 days of the year — by virtually every criminal justice agency in the country.  This, for example, is the database that police officers check when pulling you over for a traffic infraction or that immigration officials use when you return to the country.   

IF I HAVE A CRIMINAL RECORD, WHAT CAN I DO TO SEAL, EXPUNGE OR OTHERWISE REMOVE/CLEAR IT UP?

Because the FBI reacts to what local and state law enforcement provide it, it is probably best to begin by sealing, expunging or otherwise cleaning up your records at the local and state levels.  Those entities can then notify the FBI of any actions taken.  Failing such notification, you can contact the FBI yourself at the following address:

Criminal Justice Information Services (CJIS) Division
Att:  Correspondence Group
1000 Custer Hollow Road
Clarksburg, WV 26306.  

Keep in mind, however, that the FBI will require you to produce documentation necessary to any suggested changes to its database.

The procedure for sealing/expunging a criminal record varies by jurisdiction.  In Washington, D.C.,for example, there are number of different grounds/methods to seal your criminal record.  Arrests for misdemeanors and felonies that did not result in conviction can be sealed after a two to four-year waiting period when you can prove that it is “in the interests of justice” to do so.  Motions on the grounds of actual innocence can be filed immediately.  Convictions for many offenses can be sealed after an eight-year waiting period.  And so on. 

FREQUENTLY ASKED QUESTIONS

Will a traffic ticket or infraction show up on my criminal history?

The answer to this question will vary by jurisdiction.  I know from first-hand personal experience, for example, that traffic tickets do appear on your criminal record in Virginia. (I have a criminal record there for having crossing the double-line median many years ago while navigating a speed bump.) 

Most jurisdictions, however, will distinguish between a traffic-related criminal offense (for example, driving under the influence, reckless driving, hit-and-run) and a traffic ticket/infraction (for example, failing to signal while turning, parking in an unauthorized zone).  In Washington, D.C., for example, criminal cases will show up on both your criminal and driving records.   Tickets will only appear on your driving history. 

Can I seal or expunge a federal criminal record?

Unlike most states, the federal system does not have a comprehensive statute or set of rules for expunging or sealing a criminal record.  One of the few exceptions is a federal statute (18 U.S.C. § 3607) that provides for the expungement of a conviction for possessing a small amount of certain controlled substances.  

Will I need to hire a lawyer to seal, expunge or clear up a criminal record?

There is tremendous variation among jurisdictions with respect to how complicated it is to seal or expunge a criminal record.  Although it is generally a good idea to hire a lawyer to file a formal motion to seal or expunge, much of the work described above – including contacting the FBI – requires mostly legwork.  It does not require specialized knowledge.  

How can I get my record sealed/expunged for free?

There are many legal aid organizations that work with you in interpreting the statute in your jurisdiction and in drafting and filing the necessary motion.

Is it better to seal or expunge a criminal record?

States vary in the terminology they use to describe the process for legally removing a criminal record.  Generally speaking, expunging a record means to destroy the record so that it no longer exists.  Sealing means to hide a criminal record from public view.  In this case, it would be preferable to expunge a record.  In Washington, D.C., the statute uses the word “sealing” even in cases in which the effect of the action would be closer to expungement.   

Can I get my criminal record expunged if I plead guilty or am convicted of a felony?

Although there is currently an effort nationwide to reform local, state and federal laws governing the expungement, few jurisdictions allow the expungement of felony convictions.  The only felony offense eligible for sealing/expungement in Washington, DC is a violation of the Bail Reform Act.