What does expungement do and what doesn't it do?

March 19, 2007 12:57 PM

What does expungement do and what doesn't it do?

I am currently most likely eligible for having an adult peaceful protest arrest (misdemeanor) expunged in the state of Oregon. This would greatly help when I have to move to a new apartment. On the other hand, my public defender never filed a constitutional argument before my jury trial and when I briefly discussed it with him over a year ago, he encouraged me to find another lawyer and do so immediately, because I was almost due to be eligible for expungement anyway.

Well, life happened and I never followed up on it, but I'm wondering: Does expungement preclude getting a conviction overturned? Expungement clearly opens a lot of doors, but does it close any? Is it possible that my lawyer was just wary because of the difficulty of finding a pro-bono lawyer to aid in my case once the urgency was abated by expungement?

This thread raises a lot of questions about when to report and when not to report an expunged conviction. If I get it expunged, when will I have to report it and how will I know? (Employers? Grad school app? Visiting another country? Immigrating to another country? Rental applications?) Is there a set of circumstances where I would report an expunged arrest but not report an overturned conviction? How does an expungement factor in the unlikely event that I'm in trouble with the law again?

And yes, I understand You Are Not My Lawyer and This Is Not Legal Advice.

posted by Skwirl to law & government (12 comments total)

I was arrested in early 2001 while on a road trip in college. The charges involved minor possession of marijuana and underage possession of alcohol. While I was found guilty of the offense, it was expunged after having no arrest for a year.

In summer of 2004, again while on a road trip, I was arrested for minor possession of marijuana (yes, I should've learned my lesson the first time, but that's another issue). Because my previous conviction had been expunged, a background check came up clean, I was released on my own recognizance and eventually the record was expunged after another clean year.

Since my arrests I have applied for jobs, apartments, graduate school and visited other countries. Under no circumstances have reported the expunged conviction. This under the advice of my Lawyer father who insists that since I have no record in the eyes of the law, it makes no difference in these circumstances.

About a year ago I was interested in obtaining my FBI record because the arresting officer in 2004 said my fingerprints would be forwarded to them under the Patriot Act. I wasn't sure if he was bullshitting me so I did a Freedom of Information Act request for my FBI file which turned of nothing relating to the two arrests.

Hope this helps.
posted by jk252b at 1:28 PM on March 19, 2007

I have never had to report a misdemeanor, here ins CA, except for on a few unusually vague mass-produced job applications ("Have you ever been convicted of a crime?"). That said, the one time I brought it up, I was not exactly rewarded for my honesty, but my conviction was not so altruistic as yours. I would assume expungement would preclude overturning of the conviction, but that either one leaves your record in similarly pristine shape.

Rental Agreements: no way.
Job Apps: Hardly ever, and your crime is one of the better misdemeanors to disregard as an employer.
Grad SchoolApps: I can testify to No, though financial aid often wants to know of drug related charges.
posted by Ambrosia Voyeur at 1:41 PM on March 19, 2007

Mr. jk252b is right.

"Expunged" means it's gone. It never happened.

"Reporting an expunged conviction" is a contradiction in terms. Why would you "report" something that never happened?
posted by Jay Reimenschneider at 2:45 PM on March 19, 2007

No, it's quite common for one country's immigration agency to care about convictions that another country expunged. They're free to consider it not expunged because they're not bound by the laws of other countries about what's been expunged and what hasn't.
posted by ROU_Xenophobe at 3:02 PM on March 19, 2007

One thing that expungement doesn't do is get rid of every tiny trace and memory, so that even plucky, determined investigative reporters or crooked private investigators or rogue CIA agents (or, on preview, foreign immigration agencies) or whoever won't be able to find it.

The arrest won't come up in a normal context, but who was it that said that the past is never truly past?

If you ever run for president or something, that peaceful protest arrest might come back to haunt you. (Or it might win you the election--who knows?)
posted by box at 3:13 PM on March 19, 2007

ROU_Xenophobe beat me to it. They may be extra mean to you if you tell them you haven't ever been convicted of anything and they can see that you're lying to them.
posted by oaf at 3:17 PM on March 19, 2007

(The immigration agents, that is.)
posted by oaf at 3:18 PM on March 19, 2007

I think the meaning of expungement is that the conviction goes away entirely; it never happened at all. It's not that it doesn't show, it's that it never was a conviction. So I don't think you're lying if you say you were not convicted of anything.
posted by Malor at 4:31 PM on March 19, 2007

As to be expected, laws vary by jurisdiction. In Louisiana, the expungment of a felony record does not mean that it is wiped entirely clean. Generally, an expungment order will be forwarded to the numerous entities that maintain your permanent records ordering them to remove the offense from its publicly available databases, etc. Nonetheless, the police and court systems will maintain a record of the arrest/offense to prevent happenings like jk252b's.

This is only done for felony offenses, misdemeanors are wiped clean.
posted by ajr at 4:35 PM on March 19, 2007

Lots of great comments, just one thing to add:

I recently had to have a background check done on myself. (It came back spotless, not that I was, uh, worried about anything...) I did do a little looking beforehand into what gets included in criminal background checks. I got the impression--just the impression--that the number of years back into the past that the investigating company would look might be based on when records started to be made available electronically rather than any sort of statute of limitations or sunset clause.

I'd expect that to vary among jurisdictions, maybe a lot, but the general point is this: in the future, records like this will probably be much easier to obtain, and expungement will be that much more important if you can get it.

(Not a lawyer, etc. etc.)
posted by gimonca at 5:06 PM on March 19, 2007

Here's a flashback from last year's elections.
posted by gimonca at 5:09 PM on March 19, 2007

I think the meaning of expungement is that the conviction goes away entirely; it never happened at all. It's not that it doesn't show, it's that it never was a conviction. So I don't think you're lying if you say you were not convicted of anything.

If a foreign country's law says that expungements don't count unless granted by that country, then you are lying to immigration agents if you say you were never convicted of a crime.
posted by oaf at 5:31 PM on March 19, 2007