A felony conviction on your record can prevent you from opportunities, goals, and dreams. Since a criminal record is public, employers, housing authorities, educational institutions, and prospective romantic partners may have access to your criminal past when they run background checks. Fortunately, you do have options to seal, set aside or expunge your record after a certain time passes, or you meet other conditions, depending on where you live. Erasing or destroying your criminal record is called expungement. Some states allow felons to expunge their records, while others do not. Read on to learn how long a felony remains in your criminal history and whether your state allows expungement of felony convictions, felony charges, arrest records, misdemeanors, or other items on your record.
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How Long Does a Felony Stay on Your Criminal Record?
A felony conviction does not automatically fall off your record. It stays there until you do something about it, like getting an expungement. According to the American Bar Association, expunging a record means to erase or remove it. In essence, the court destroys the criminal record. Court records no longer show an expunged criminal conviction after a court orders it removed. Once expunged, the public, including prospective employers or landlords, can no longer see the felony conviction or, in some cases, the arrest and charges leading up to the conviction. In fact, an expungement of your only criminal conviction clears your record, as if the crime, charge, or conviction never occurred. Expungement is not a pardon of the crime, however. It is merely a record erasure after a convicted felon served their sentence or probation, and is no longer indebted to society for committing the crime.
Whether you get your record expunged or not depends on state law. If your conviction occurred at the federal level, you are not likely to get your federal criminal conviction removed. Federal law does not allow for expungement. But all fifty states have laws governing expungement. State law determines who is eligible to apply for expungement, whether felonies may be expunged, and how to go about doing it. Each state that allows expungement has its own procedures and conditions for an applicant’s request to clear their record of the justice system’s indelible stains.
The ease or difficulty of expunging records depends on many factors. For example, juvenile records are more commonly sealed or expunged. In fact, 15 states automatically seal or expunge a juvenile’s record at some point after they turn 18. However, which records are eligible varies from state to state. For example, Illinois requires the state police department to automatically expunge juvenile records of 18 year olds but only for low-level offenses. In Montana, the court seals a juvenile’s court records but expunges their probation records when the juvenile turns 18.
Most states have laws regarding sealing juvenile records, which means removing them from public view. However, sealing a record does not mean a court cannot later access the record. Expungement is better because the court destroys the record and cannot later access it. Moreover, a court cannot seal an adult criminal conviction, only an arrest without a conviction.
The Expungement Process
State laws vary regarding felony criminal conviction expungement, sealing, or set aside. Like sealing a record, a set aside does not permanently remove the conviction from your record but sets it aside with confirmation that the convicted felon fulfilled all sentencing requirements. So, a set aside does not hide the record from the public. And just as the state laws differ on removing criminal convictions, they also vary in the process of erasing a conviction.
First off, if you live in Washington D.C., Iowa, Montana, Alaska, Maine, Florida, Wisconsin, Hawaii, or South Carolina, you are unable to expunge a felony from your record. And in Alabama, South Dakota, Georgia, Texas, and Pennsylvania, a court may expunge pardoned felonies only. The rest of the states have either limited or broad felony records relief and restoration. Many states only expunge misdemeanors. Oregon, Washington, Utah, and Nevada have the broadest expungement laws, excluding only the most severe crimes.
If you do live in a state that allows felony expungement, the record expungement process begins with an examination of the reasons for expungement. You are more likely to get a judge to consider your removal application if your record contains an arrest, not a conviction, or you apply to expunge your juvenile record. Also, minor offenses that happened a long time ago are more likely to be approved for removal. On the other hand, violent or sex crimes are not eligible for expungement in the majority of states. And depending on the state, there may be a waiting period before eligibility to apply.
Generally, you must serve your sentence, including probation, before you can apply for an expungement. So long as you fulfilled sentences for all criminal convictions and remain free of criminal charges during any waiting period, you can submit your application.
How to Apply for Expungement/Sealing Of A Criminal Record
All requests to remove a conviction from your record begin with an application. However, each state has its own application process and paperwork that must be complete prior to a judge deciding to expunge or seal your criminal record. Thus, the length and contents of the application may vary. Moreover, most expungement applications require accompanying records, verifying case numbers, names, probation, restitution, fines, and other details that may take time to acquire from county records, police departments, or the courts. As such, many applicants hire law firms to help them navigate the often complicated legal process of record expungement or sealing.
After completing the application, the applicant files a petition for expungement in the court where the conviction occurred. Oftentimes, the applicant is legally required to serve the petition and accompanying documents on specific individuals or entities. Serve means to deliver documents, most often to the district attorney, probation department, or other government offices, before the court entertains the petition. Some states require the prosecutor’s office review and approval first. Most states require a court hearing on the petition, which you may be required to attend with or without an attorney. In all, the entire process may take weeks to months.
Criminal Charges That Can’t Be Expunged
While courts in nearly all states typically expunge minor offenses, juvenile records, and non-conviction records, they do not approve applications to expunge most serious violations of public safety and morals. It depends on the type of felony. For example, violent crimes, such as robbery, terrorism, and arson are not likely to be erased from a felon’s records. Any crime involving serious injury or death, like child endangerment, kidnapping, and sex offenses, is not a felony that can be sealed or removed in almost all states. Of course, a court may consider removing arrest records for violent or sex charges that did not lead to convictions. Since arrest records can show up on background checks, you want to have those expunged too.
Since courts look at the entire picture, the nature of the crime, and the circumstances surrounding it, felony convictions are more difficult to expunge in those states that allow felony expungement or sealing of records. In addition, sealed records may be unsealed if the individual is again entangled in the justice system with another crime. If the second crime is the same as the first, a court may consider the expunged crime as justification for harsher punishment. And the applicant seeking expungement may forfeit their chances of success if another criminal charge appears on their record after petitioning for expungement. Some states do not allow a person to apply if they have subsequent crimes or charges.
What Happens After Applying To Expunge A Criminal Record
The application helps you gather all the information you need to petition the court for expungement. After completion, you must mail your paperwork or personally file your petition to the Clerk of the Superior Court for the county in which your conviction or convictions occurred. The petition should include all supporting documents. The court may have a list of required forms, but you may also need additional records and a prepared order for the judge to sign. After filing your petition, the court clerk sets a hearing date for the judge to review your case in open court. Also, you may be required to pay a filing fee for the petition.
Before attending the hearing, if necessary, ensure you served those who must receive notification and copies of the paperwork containing the time and date of the hearing. You may hire a law enforcement agency or registered process server to serve the documents, depending on your local rules and legal requirements. Sometimes the court serves the documents. Typically, you or your process server is required to file a proof of service with the court to confirm that you served the appropriate parties. At the time of the hearing, you must appear promptly if your appearance is mandatory or risk having your petition denied.
The Bottom Line
Overall, you probably want to expunge your felony conviction records if you live in a state that allows felony records to be expunged. And if you can’t have expunged records, then you might want them sealed or set aside if your state allows for it. For example, if you live in California or New York, you may be able to get some felonies expunged or sealed but maybe not as many as you would if you live in Oregon, Nevada, Colorado, or Kansas. In Nebraska and Idaho, however, you cannot have felony or misdemeanor records sealed. The laws of each state determine which type of felonies, if any, qualify for erasure or sealing, and the rules for applying to the court, including waiting times, prior criminal history, and service of process.
Although you may not be able to get a criminal conviction removed from your record, you may be able to expunge arrest or charging records. If you can expunge your record of criminal convictions, including arrest and charging records, you can rest a little easier knowing that potential employers, educational institutions, or landlords you apply to will not turn you down after discovering a criminal record during a background check. Additionally, a criminal record may prevent an individual from obtaining a professional license, even if they completed the necessary degree requirements. They could lose their professional license, too. And juveniles with juvenile court criminal records often get turned down for financial aid when they go to college, so any expunged infractions, guilty pleas, or criminal offenses on their record mean a new beginning to change their lives.
One sure way to know how long your felony record stands is to request a free consultation with a criminal defense attorney. After understanding the state laws and justice system rules, you should hire a law firm with an expungement lawyer to prepare your petition to expunge or seal your criminal history records and represent you at the hearing. In that way, you can be sure the paperwork is right and maximize your chances of getting your records expunged.
Frequently Asked Questions
How long does expungement take?
Though the expungement process is similar in many states, the time it takes to apply, gather the necessary forms and documents, get a hearing date, and attend the hearing varies. The average is four weeks to five months, but you may be met with court, law enforcement, or other delays when seeking records. The court calendar in the superior court in the county where your conviction took place may also be crowded. Thus, you may not get a hearing for several weeks to months.
In California, the average time to expunge your record is four to five months, but in Texas, it is about four to six weeks. In Georgia, you are looking at 150 days, in most cases. But these time frames pertain to the expungement process, not the actual wait time before you can apply. Some of those waiting periods can be as high as ten years, depending on the state you live in. For example, New York felons must wait ten years, while New Jersey indictable crimes take five years to be removed.
What is the difference between a felony and a misdemeanor?
The main difference is the severity of the infraction. Felonies are commonly violent crimes or serious crimes against a person or property. Potential felons are convicted in superior court, whereas misdemeanors are matters for the municipal court in most states. Thus, municipal court judges handle cases such as petty theft, municipal ordinance violations, traffic offenses, and DUIs. Most people think of misdemeanors as ticketed offenses, like traffic or excessive noise violations that require fine payments. But misdemeanors also include quasi-criminal matters with more serious punishments, such as DUIs and DWIs, for driving under the influence of alcohol or drugs.
The punishment for each infraction differs. Sentences in municipal court may or may not include jail time. Typical jail sentences are under a year. On the other hand, superior court sentences include prison terms, which can range from over a year to life. Fines are also lower for misdemeanors, ranging up to $1,000.00, in most cases, whereas felony penalties can reach upwards to nearly a million, and some record-breaking fines rise into the billions.
What are the effects of a felony on your record?
A felony conviction can restrict your opportunities in life. It can affect your career, housing, and educational plans. Moreover, those seeking professional licenses may not be able to obtain one if they have a criminal record. Many professional licensing bodies reject applicants with crimes of moral turpitude on their record. So, felony theft, fraud, sex, and violent crimes may prevent an individual from earning a license in their chosen field. Likewise, educational institutions may reject applicants with felony histories. And financial aid exclusions prohibit those with criminal records from receiving aid, in some cases. Finally, some governmental housing is unavailable to felons.
Though a felony does not automatically disqualify you for certain professions, like lawyers or doctors, but certain kinds of felonies may. Similarly, there is no automatic disqualification for a passport with a felony record, but certain crimes, like drug crimes, may make it harder if not impossible to get a passport.
What will a background check reveal?
Depending on what it is for, a background check can reveal many things, the most obvious being someone’s criminal history. Prospective employers use information provided by the potential employee, such as social security number, name, and address, to run a check. A basic check turns up misdemeanor criminal convictions, felonies, ongoing criminal cases, incarceration terms, criminal charges, and arrests. Not all checks yield all of these, however.
Sealed juvenile records will not show up in a search. And several states have time limitations on how long a criminal conviction may be disclosed to the public. For example, California, Maryland, New Hampshire, Montana, Massachusetts, Kansas, and Washington prohibit disclosure of felonies older than seven years and misdemeanors older than five.
Fingerprinting checks lead to the FBI database on all interactions with law enforcement. Additionally, employers seeking to hire those who will work with vulnerable populations, like children, the elderly, and the disabled, may conduct a more specific background check on criminal histories with those vulnerable populations.