Expungement

What most people refer to as “expungement” is really the process of getting a criminal record sealed. Sealing is a legal process which limits access to criminal records. Your record can never truly be “erased.” Rather, sealed records are not public records and will not appear in an ordinary criminal record check. Only certain criminal justice professionals under limited circumstances may inspect a sealed conviction record.

You have been ‘convicted’ if you were found guilty, you plead guilty or if you plead no contest. You do not have to have been sent to prison or even paid a fine to have been convicted.

Most employers and landlords and every public housing authority does a criminal record search of applicants. A job applicant whose record has been sealed cannot be asked about a conviction unless it has a direct and substantial relationship to the job being sought. (However, state law prevents some businesses from hiring job applicants with criminal records. See below)

An eligible offender has one felony conviction or one felony and one misdemeanor or two different misdemeanor convictions. A single incident may lead to several criminal charges, i.e. such as when a person is charged with assault, disorderly conduct and resisting arrest after a fight. If there are several convictions from acts committed at the same time, this is still considered one conviction. Related criminal acts committed within a three-month period can be counted as one conviction if they are listed in the same indictment or complaint even if they did not occur at the same time. A minor misdemeanor does not count as a ‘conviction’ under this statute. A minor misdemeanor usually results in a ticket not a court appearance. Having one or more minor misdemeanors will not prevent you from having a felony or misdemeanor convictions sealed. Juvenile offenses are not considered ‘convictions.’ They may be expunged through juvenile court.

No. A judge must agree to seal the records.

Not all convictions can be sealed. You cannot have any criminal or traffic charges pending at the time that you file the application for sealing. Your record cannot be sealed if:

1. You received a mandatory prison term;
2. You were convicted of a crime that involved sexual conduct or pandering obscenity to a minor;
3. You were convicted of a first-degree misdemeanor that was an offense of violence;
4. You were convicted of a first or second degree felony;
5. You were convicted of a first degree misdemeanor or a felony and the victim was under 18 years of age;
6. You were convicted of driving under the influence (DUI), driving under suspension (DUS), driving without a license, reckless operation or other traffic or motor vehicle crime;
7. You used a firearm in committing the crime;
8. You failed to appear (bail forfeiture) in a traffic case.

You will need to wait one year after the final discharge for a misdemeanor and three years after the final discharge for a felony. The final discharge happens when any court-ordered jail time, parole, probation or community service has been completed. All fines and court costs must be paid.

The court will determine if the records are eligible to be sealed, that no criminal proceedings are currently pending, that the applicant has been rehabilitated, that the prosecutor has not filed an objection and that there is no legitimate need of the court to maintain the records. Sealing is at the discretion of the court. The judge will look at the crime and you and make a decision. If you have changed your life for the better and the judge feels it is in everyone’s best interest, the judge will order your record sealed.

After a conviction is sealed, in most cases you do not need to list the conviction on a job application. However, you must list it if:

1. The crime relates directly to the job you are applying for;
2. The job involves the care of children, the elderly or disabled;

Certain employers such as day care centers, schools, nursing homes and hospitals are required to request a special records check from the Ohio Bureau of Criminal Identification and Investigation (BCCI). Even if the conviction is sealed it will appear on the report. BCCI will inform the employer if the conviction is for an offense of violence or other listed offense.

Ohio is an ‘at will’ state which means that employees can be hired or fired as the employer chooses. If an employer learns of a prior conviction, even if it has been sealed, you could be fired.

Some employees have a written employment contract, such as a union contract. They can only be fired for ‘good cause.’ If you have lied on your employment application, that would be ‘good cause.’ However, if a sealed conviction is not mentioned, that should not be ‘good cause’ to fire you unless the offense directly relates to the job.

If you were found not guilty or the complaint against you was dismissed, you may file to have the record sealed at any time. If a ‘no bill’ was entered by a grand jury, you must wait two years to file.

1. Get a copy of your final order from the court where you were convicted.
2. Complete a Motion for Sealing of Criminal Record.
3. File the forms with the Clerk of Courts in the county where you were convicted.
4. Meet with the probation department and appear at a hearing in court.

No. The filing fee in most courts is $50. You must pay with cash, a cashier’s check or money order. If you cannot pre-pay, you can file an Affidavit of Indigency. The affidavit must be notarized.