I get several calls a week from people asking why they still have a criminal charge “on their record.” Almost always, the question arises because they were told by a judge or a lawyer that their “record” would be “expunged” after they complete their deferred sentence. While this is partially true, it does not fully explain the expungement process, the different types of expungements and the eligibility requirements for each. But I will, so keep reading!
- There are two main types of expungements of a criminal case: a “public record” expungement and an “arrest record” expungement.
- Public record expungements are usually the result of the completion of a deferred sentence and are talked about in 22 O.S. 991(c)(C). If you successfully complete your deferred sentence, the Court will dismiss your case and your public record will be expunged. In most counties I practice in, this process is done automatically by the District Attorney, however, there are some counties in Oklahoma where the Defendant has to file his or her own 991(c)(C) motion. True to its name, a public record expungement through 991(c)(C) only gets rid of the public record of an offense, meaning OSCN should not have a record of the case, the clerk seals the file and it is not open for public inspection and OSBI should show that the case was dismissed. Since there are a lot of moving pieces in this process, it is not uncommon for a step to be missed, so if you successfully completed a deferred sentence and it is still showing up on OSCN, or your OSBI background check does not show the case dismissed, there is a relatively easy and inexpensive fix for some counties.
- Most of the issues I get calls about deal with a person’s arrest record. Even if you successfully complete a deferred sentence and your case is dismissed, or you are arrested and charges are never filed, the arrest will likely still appear on your record. It may say “case dismissed” or it may say “referred to DA” or one of a few other notations. The problem is that most employers get antsy if you have an arrest on your record, especially for a felony, even if it says case dismissed. The good news is that it may be possible to get your arrest record expunged. The bad news is that there are several limits.
- Arrest record expungements are codified in 22 O.S. 18. The basics for misdemeanors are these: To expunge a misdemeanor arrest after completion of a deferred sentence, you have to wait a year after dismissal, have no prior felony convictions and have no misdemeanor or felony charges pending. You can also be eligible for an arrest record expungement if you have been convicted of a misdemeanor, but usually you have to wait five years from the end of your sentence if you have been sentenced to anything more than a fine of $500 or less and cannot have been convicted of a felony. You can find more details about misdemeanor expungements on this page.
- Expunging a felony arrest is more complicated. Again the specific rules are found in 22 O.S. 18. Generally you have to wait five years after your case has been dismissed after a deferred sentence, the charge was non-violent, no prior misdemeanor or felony charges are on the record, and there are no pending charges of any kind. More details can be found by checking out this page.
- If you have been convicted of a felony, even a non-violent one, you must get a pardon before you are potentially eligible for an expungement of any kind. Pardons are difficult to get as they require the approval of the Governor.
- There are other types of arrests that can be expunged, but they are less common. See the above statute or call me if you have any questions about your eligibility.
Knowing if, and when, you are eligible for an expungement is one of the many reasons why hiring an experienced criminal defense lawyer is important. Don’t hesitate to contact me for a FREE consultation at 580.249.9100 any time.