Philadelphia Criminal Lawyer – Limited Access vs Expungement
Our criminal defense law firm based in Philadelphia often receives questions regarding criminal records following the disposition of matters in Pennsylvania and New Jersey. Both jurisdictions maintain laws which allow eligible individuals to remove or limit the public’s access to information regarding a criminal history. As a Philadelphia criminal defense lawyer, I have represented hundreds individuals charged with crimes and offenses such as illegal possession of drugs and narcotics, firearms, illegal weapons, violent felonies, along with drunk driving (DUI). Our law firm has a terrific track record of getting great results and while no law firm is perfect, we have successfully represented individuals all over the Commonwealth of Pennsylvania and the state of New Jersey for over a decade!
Who is eligible for an expungement in Pennsylvania?
In Pennsylvania a person is eligible for an expungement when their felony or misdemeanor charge does not result in a criminal conviction (aka – a non conviction, dismissal, judgment of acquittal, withdraw of prosecution. A person is also eligible for an expungement if their misdemeanor or felony charge resulted in diversionary disposition through the ARD program (Accelerated Rehabilitative Disposition) and Section 17. I have written articles on these programs and I encourage you to read them. There are also situations where a person is eligible for an expungement through AMP (Accelerated Misdemeanor Program); I encourage you to read the article on that program for more information.
Convictions & Expungements in Pennsylvania
Not all convictions are ineligible for an expungement in Pennsylvania. A person is eligible for an expungement if he or she is convicted of a summary offense and has not been arrested for 5 or more years. The most common summary offenses which our law firm handles are disorderly conduct, simple trespass, underage drinking, and retail theft (value under $150). A person is also eligible for an expungement if the individual is over the age of 70 and has not been arrested for 10 years following that conviction.
How Should You Handle a Job or Interview Question Which Ask About Prior Arrests or Convictions?
Most people seek an expungement because they don’t wont future employers to find it. Its important to understand that even if your criminal record is expunged, a job application can still ask you about a prior arrest or convictions. It is very common for job applications to ask questions which target arrest or police contacts which were later expunged or removed from your record.
While some attorneys may argue that expungement is an entirely clean slate, this is simply not true! I would be incredible careful with these types of answers and it could later void an employment contract or possible even lead to a lawsuit. An expungement cannot change the fact that an arrest occurred and the decision to disclose it is your own.
To Tell or Not Tell Them About Your Expunged Record
Depending on the employer, background checks may be able to discover previously expunged records. Its sometimes better to get out in front of it and admit that something happen rather than try to hide it. Many politicians who have had prior contacts with the criminal justice system but have had their records cleaned up or expunged have been in this situation.
Notable Expungement Cases
Former President George W. Bush
For example, former president George W. Bush was arrested for DUI in 1976; 6 years later the records were removed. Various news sources located the records and brought them to light during the 2000 presidential election. This is an important point because even if a record is expunged following a diversionary disposition, through the ARD program, some type of record is always maintained by law enforcement. In Pennsylvania, like New Jersey, law enforcement can locate prior drunk driving convictions; even those that were expunged. Prior DUI’s may result in additional penalties as drunk driving is a tiered offense. I encourage you to watch my video on drunk driving for more information on this topic. While a casual observer or general member of the public may not be able to locate a removed or expunged record, a large employer or government agency will have much more resources to locate these records.
Presidential Candidate Beto O’Rourke
A much more recent example is current presidential candidate Beto O’Rourke who was arrested for drunk driving in 1998. Unlike Bush, O’Rourke has openly addressed the issue, more than likely learning from Bush’s 2000 presidential mistake which hurt him in the poles. O’Rourke, who was 26 at the time and had a blood alcohol level of .136, the legal limit at that time was .10 (Texas). The legal limit in Texas and all states including Pennsylvania is now .08. Following this incident, O’Rourke entered a diversionary program where his license was temporarily suspended and the misdemeanor drunk driving charges were later dismissed (This is a very common situation). At the time of the incident O’Rourke’s father was running for county judge, a post which he had previously held from 1982-1996, the arrest occurred just 5 weeks before the election, which his father later lost.
O’Rourke was also arrested in 1995 on misdemeanor charges which were also later dropped. The allegation there was that O’Rourke allegedly jumped a fence at the University of Texas-El Paso. In addition to openly addressing these arrests as well, O’Rourke has incorporated it into his presidential campaign platform which includes the legalization of marijuana and criminal justice reform which includes the expansion of expungement legislation.
What Happens If The District Attorney’ Office Contests the Petition For Expungement
In many situations the district attorney’s office will not contest an expungement hearing but there are some situations where the Commonwealth is not agreeable to an expungement. During a contested hearing the judge must balance the person’s interests in being free from the criminal record against the Commonwealth’s interest in preserving the record. The judge, during a contested hearing, may consider the following factors:
- The strength of the Commonwealth’s case against the individual;
- The individual’s age;
- Employment history;
- Length of time since the case and negative consequences if the expungement is denied
If you and your criminal lawyer are facing a contested hearing, I recommend providing your lawyer with the following items which could help your position:
- Job denial letters which cite the criminal record
- Any certificates for classes or courses completed which specifically address the issue which led to the arrest (drug classes, anger management, parenting classes)
A Record Will Always Exists – It’s Never Gone Forever
Remember, even if your record is expunged, the District Attorney’s Office and The Pennsylvania State Police Central Repository must maintain a record for the following reasons:
- Determine future eligibility for diversion programs (ARD is usually a first time offender program)
- Identify person’s in future criminal investigations
- Determining the grading of future offenses (DUI – tiered offenses)
Limited Access Petitions
Unlike an expungement, a limited access petition does not remove records but limits the general public’s access to them. A person is eligible for limited access following convictions for misdemeanors of the 2nd or 3rd degree. The person must also have completed all the terms of the diversion program (classes, fees, community service and maintained a clean record for at least 10 years. The following individuals are NOT eligible for limited access petitions:
- Otherwise eligible offenses which are punishable by more than 2 years in jail (misdemeanors of the 1st degree)
- Four or more offenses punishable by 1 or more years in jail (misdemeanors of the 2nd or 3rd degree)
- And the following offenses:
- Some subsets of simple assault
- Some subsets of sex offenses
- A subset of witness intimidation
- Any offense requiring Megan Law registration
If you would like more information on expungement or limited access petitions please contact our office.
