Some federal circuits have upheld the inherent right of judges to order expungement while others have held the opposite.
[4] A number of bills have been introduced in Congress that would allow expungement of a federal criminal record, but none have become law.
2449 or The Fresh Start Act of 2011 during the 112th Congress, which would have allowed certain non-violent offenders to seek expungement of otherwise lifelong felonies.
[5] In July 2014, Senators Rand Paul and Cory Booker introduced the Record Expungement Designed to Enhance Employment (REDEEM) Act, a bi-partisan bill in an effort to reform the criminal justice system which would, in part, allow for the expungement of Federal criminal records for one time, non-violent offenses.
If the court grants the petition, the defendant is "released from all penalties and disabilities resulting from the conviction other than those imposed by the Department of Transportation.
[12] Further, Penal Code 851.8 provides that defendants whose cases have been dismissed or who were never charged after arrest may petition for a Declaration of Factual Innocence.
Criminal records associated with cases receiving a final disposition of adjudication withheld are eligible for sealing in most but not all situations.
[17][18] A Certificate of Eligibility from the Florida Department of Law Enforcement is required prior to petitioning the court for an order to seal or expunge a record.
An application to the FDLE must be completed and be accompanied with a certified disposition of the charge(s) seeking to be sealed or expunged.
If an expungement is sought, the application to the FDLE must also be signed by the State Attorney attesting to the fact that the charges were dropped, dismissed, or that the person was found not guilty after trial.
[21] A waiting period of four years also is required, beginning at the time of discharge from supervision, where no convictions were entered.
[22] Indiana's Second Chance law, sponsored by Sen. Greg Taylor, D-Indianapolis, allows for the expungement of certain misdemeanor and felony offenses.
Most crimes of a sexual nature are excluded from the law but each section has other specific exclusions, and anyone determined to be a Sex or Violent offender (as defined by IC 11-8-8-5) is also ineligible.
For cases that were dismissed or acquitted, an application for expungement can be made 60 days after the dismissal; for felony cases originally filed in District Court but which have not resulted in an indictment by the grand jury, an application for expungement can be made 6 months following the date of the District Court decision to hold the matter to the grand jury– KRS 431.076.
Kentucky requires that each person seeking an expungement after conviction obtain a certificate of eligibility through the Kentucky Court of Justice prior to petitioning for the expungement in the local court where the case was filed, which ensures that judges and prosecutors have accurate and current information regarding the status of petitioners.
[25] Missouri has two forms of expungement, one generally applicable to criminal cases and a unique one for the crime of being a minor in possession of alcohol.
If certain requirements are met, Missouri law allows a person to have an arrest record expunged, which the law of Missouri defines as the process of legally destroying, obliterating or striking out records or information in files, computers and other depositories relating to criminal charges.
[26] In 2005, the Missouri General Assembly enacted a special new section in the state's Liquor Control Law allowing for the complete and total expungement for the offense of being a minor in possession of alcohol.
In any application for employment, license or other civil right or privilege, or in any appearance as a witness in any proceeding or hearing, a person may be questioned about a previous criminal record only in terms such as "Have you ever been arrested for or convicted of a crime that has not been annulled by a court?"
[35] If the acquittal resulted from a finding of insanity or lack of mental capacity, records of the arrest cannot be expunged.
[37] However, records of arrests and convictions for disorderly persons offenses that are defined in Title 39 (traffic statutes) can be expunged.
New York Criminal Procedure Law 160.50 permits the "sealing" of cases where charges were dismissed, vacated, set-aside, not filed, or otherwise terminated.
Otherwise, New York does not allow expungements, or "sealings," of cases where a conviction was entered, except for some older controlled substance, marijuana, and loitering offenses.
[39] Pursuant to New York Criminal Procedure § 160.58, a petitioner convicted of most felony drug, marijuana, or Willard non-drug eligible crimes may request to have their records for those crimes sealed if they successfully complete DIVERSION, DTAP, or a similar substance abuse treatment program recognized by the court.
[45] To be eligible to have a conviction sealed, one must have no pending criminal charges, and have been convicted of not more than one felony, two misdemeanors, or one felony and one misdemeanor, other than multiple offenses which arose from the same act, or that were adjudicated in the same proceeding where the criminal acts occurred within a three-month period of each other.
[47] To seal the records of a conviction, a defendant must first complete all terms of the sentence imposed in the case sought to be sealed, including the payment of all fines, but exclusive of court costs and restitution obligations, and the completion of all terms of incarceration, probation, and other sanctions imposed as part of the sentence in the case.
There is no waiting period in the case of criminal proceedings that resulted in an acquittal or dismissal with prejudice, however; where a no bill is returned by a grand jury as to an individual, or the proceedings against them are dismissed without prejudice, they are ineligible to petition for the records of the case to be sealed until two years have passed from the date it was returned.
If the charge was a summary conviction, then a person will become eligible when they are arrest and prosecution free for a period of five years.
TCA 40-32-101(a)(1)(B) A person applying for the expunction of records because the charge or warrant was dismissed in any court as a result of the successful completion of a pretrial diversion program pursuant to §§ 40-15-102 — 40-15-107, shall be charged the appropriate court clerk's fee pursuant to § 8-21-401 for destroying such records.
TCA 40-32-101(a)(5) All public records concerning an order of protection [ex-parte, exparte] authorized by title 36, chapter 3, part 6, which was successfully defended and denied by the court following a hearing conducted pursuant to § 36-3-605, shall, upon petition by that person to the court denying the order, be removed and destroyed without cost to the person.