Expungement
EXPUNGEMENT
Introduction: The law of expungement permits a person to “clean up the baggage” in his or her criminal record, and to have deleted from public inspection, all involvement with the criminal justice system when that involvement did not result in a criminal conviction. Expungement results in the elimination of those events, filings, and proceedings as if they never happened. The law of expungement does not permit a person to expunge criminal convictions, with the exception of a few “nuisance crimes.”
Reason #1 to obtain an expungement: One important reason to obtain an expungement is to ensure that when people search online and go to the Maryland Judiciary Case Search, they cannot find that person because all non-conviction involvement with the criminal justice system will have been removed from public inspection.
Reason #2 to obtain an expungement: One important reason to obtain an expungement is to be permitted to answer “no” on a job application, on an apartment lease application, on a credit application, etc., when asked (1) whether the person has a criminal record, (2) whether the person has ever been charged with a crime, or (3) whether the person has ever been arrested? The reality is that virtually everyone goes online to learn about other people. When people are contemplating hiring a person, or extending credit to a person, or renting an apartment to a person, they first want to learn whether that person has a criminal record, and they usually go to the Maryland Judiciary Case Search.
If the searcher finds that person on the Maryland Judiciary Case search, the searcher usually does understand criminal law. All they know is that the person is on the Maryland Judiciary Case Search and, therefore, must be a criminal. Because the searcher believes that the person is a criminal, the searcher eliminates that person and moves on to the next person when deciding who to hire, to whom to lease, or to whom to extend credit. Thus, expungement entitles the person with the expunged record to more than just removal of criminal records from public inspection. Once the records have been expunged, if the person is asked, in employment, in education, in licensing, in permits, in registration, or in government service, whether that person has ever been arrested for a crime or charged with a crime, the answer is “no.” Factually speaking, the answer will always be “yes,” but, if the records have been expunged, the person is permitted to answer “no” to those questions.
What is & what is not expungeable?: To be expungeable, generally, a criminal matter must be less than a criminal conviction. Accordingly, the vast majority of criminal convictions are not expungeable. In those cases, other, more difficult steps, must be taken in an attempt to have the criminal conviction vacated, i.e., to make the criminal conviction go away. In Maryland, a plea of “nolo contendere” is not a conviction. However, it is treated as a conviction for purposes of expungement. Generally, events, filings, and proceedings that do not result in a criminal conviction are expungeable, including: (1) an arrest that did not result in criminal charges; (2) a criminal charge that resulted in an acquittal, i.e., a not guilty verdict; (3) a criminal charge that resulted in a nolle prosequi (nol pros), i.e., a dismissal of criminal charges; (4) a criminal charge of assault when the complainant and the cross-complainant agreed to compromise or settle the case; (5) a criminal charge that resulted in a stet, i.e., placed on an inactive docket; (6) a juvenile record; (7) a probation before judgment (PBJ) (but a probation after judgment); (8) a criminal conviction for which the Governor has issued an unconditional pardon (very difficult to obtain and takes at least four years); (9) a petition for a peace order or protective order, and (10) a few minor criminal convictions of the “nuisance crime” variety. Let’s understand some terminology, as follows:
(1) Arrest: An arrest is an intrusion on a person that is greater than a mere stop. For example, a person is merely stopped when a police officer stops a motorist and issues a traffic ticket. A person is arrested when the police officer, with or without an arrest warrant, takes that person to a police station, fingerprints that person, and takes that person before a court commissioner. That arrest does not result in criminal charges if a prosecutor elects not to go forward with criminal charges.
(2) Acquittal: If a person is charged with a crime, and the case goes to trial, and the fact finder (a judge or 12 jurors) finds that person “not guilty,” the result is an acquittal.
(3) Nol pros: If a person is charged with a crime, that charge is “nol prossed” if the charge is dismissed by the prosecutor.
(4) Compromise or settlement of a criminal assault charge: If two people each bring a criminal charge against the other for assault, and the two people later both agreed to dismiss the charges, the charges are “compromised” or “settled,” which is like a nol pros.
(5) Stet: If a person is charged with a crime, that charge is “stetted” if the charge is placed on an inactive court docket.
(6) Juvenile record: Generally, a person becomes an adult at age 18. For serious offenses, a person may become an adult at age 16 or age 14. Thus, most people, in most circumstances, are juveniles if they are under age 18. Unless a juvenile is waived to adult criminal court, a juvenile cannot be convicted of a crime. Instead, juvenile charges result in a juvenile delinquency proceeding. If the juvenile is found what would be guilty in a criminal court, if an adult, the result is adjudication as a delinquent.
(7) Probation before judgment (PBJ): There is often confusion between probation before judgment (PBJ) and probation after judgment. If a person who is charged with a crime receives a PBJ, the PBJ does not result in a criminal conviction, and it can be expunged. Probation after judgment is called probation, or straight probation, or probation following a guilty verdict. That probation is part of a criminal conviction and cannot be expunged.
(8) Unconditional pardon: A pardon is expungeable if it is an unconditional gubernatorial pardon for one non-violent crime.
(9) Petition for a Peace Order or a Protective Order: If a Petition for a Peace Order or a Petition for a Protective Order is filed against a person, and the petition is withdrawn, dismissed, or denied, at the interim temporary stage or at the final stage following a hearing on the merits of the case, the person is entitled to expungement generally, but not from the Domestic Violence Central Repository. Because a petition for a peace order or protective order is a civil proceeding, and not a criminal proceeding, it is not called an expungement. It is called a “shielding,” but that is essentially the same thing.
(10) Minor criminal convictions: There are a few minor convictions that are expungeable, even though they are criminal convictions. These include public urination or defecation, panhandling, public consumption of alcohol, obstructing free passage in public, sleeping on or in park structures, loitering, vagrancy, and riding a transit vehicle without payment.
From what places are records expungeable?: An Order of Expungement can apply to (1) law enforcement agencies, (2) juvenile justice agencies, (3) motor vehicle agencies, (4) prosecutors’ offices, and (5) courts.
Even if otherwise expungeable, an event, proceeding, or filing is not expungeable if there is a criminal conviction or a pending criminal proceeding, subsequent to that event, proceeding, or filing: If there is an event, proceeding, or filing that is otherwise expungeable, the person may not receive an expungement if, subsequent to the expungeable matter, the person (1) pleads guilty to a crime, (2) is found guilty of a crime, (3) fails to successfully complete an earlier PBJ, (4) enters an Alford guilty plea, or (5) enters a plea of nolo contendere.
Timing of expungeable events versus subsequent convictions: If a person has had a criminal conviction (other than minor traffic offenses), the timing of that conviction, compared with other events, proceedings, and filings, will dictate whether that person can have some, all, or none of otherwise expungeable matters expunged. A situation may be expunged if the event, proceeding, or filing was concluded before a subsequent criminal conviction. However, after a criminal conviction, the person is required to “start over.” Thus, the pre-conviction matters are not expungeable, but the post-conviction matters are expungeable. This means that, with each conviction, the person may only obtain an expungement for events, proceedings, and filings that happen after the last conviction.
Let’s look at an example:
Time period #1: Arrested for second degree assault, but not charged by the prosecutor. Time period #2: Arrested for, and charged with, marijuana possession, and the charge was stetted. Time period #3: Charged with bad check and granted PBJ with a fine and restitution. Time period #1 through #3 may all be expunged.
Let’s change the facts and add time period #4, in which the person pleads guilty to reckless endangerment and is placed on two years unsupervised probation (after judgment and not a PBJ). This is a criminal conviction, and nothing before that criminal conviction may be expunged. Thus, there can be no expungement for anything from time period #1 through #4 in this example.
Let’s change the facts one more time and add time period #5: Arrested for, and charged with, fourth degree burglary, and the charge is nol prossed. Time period #5 may be expunged, but not time period #1 through #4.
A person may not obtain an expungement if there are criminal charges pending against the person or if there is a petition pending against the person for a peace order or a protective order. This means that it is always best to obtain an expungement as soon as the person is eligible for expungement because, if charged with another crime, before obtaining an expungement, and that charge results in a criminal conviction, the previously expungeable charges will no longer be able to be expunged.
A person may not have a PBJ expunged, if the PBJ was for driving under the influence (DUI) or driving while intoxicated (DWI).
Waiting period for expungement: There is a waiting period for expungement. The waiting period is three years for an arrest, for a nol pros, for a stet, and for a peace order or protective order. The three-year waiting period for an arrest, for a nol pros, or for a petition for a peace order or protective order (but not for a stet) can be eliminated if the person agrees, in writing, through a General Waiver and Release, to waive any civil liability against the government or its personnel. Winning a civil lawsuit against the government is very, very difficult, if not almost always impossible. Thus, in reality, a waiver does not really give up anything. The one exception would be if there is a great law suit, which is rare, e.g., the police severely hurt a person and cause that person to go shock trauma.
A probation after judgment, i.e., a probation that is not a PBJ, cannot be expunged. A probation that is a PBJ can be expunged, but there is a waiting period. The PBJ waiting period is the later of three years after successfully completing PBJ or three years after receiving the PBJ, whichever is longer. However, within the court’s discretion, expungement may be granted before the waiting period has expired, if the person can show “good cause.”
The waiting period following a pardon is five years.
If a person is subject to court ordered drug or alcohol treatment, the person is not entitled to expungement until after treatment is completed satisfactorily.
| Charge Outcome | Waiting Period |
| Acquittal, nol pros, dismissal, or petition for peace or protective order dismissed or denied. | Three years, which may be reduced by filing a Waiver and Release. |
| Stet or assault compromised. | Three years, which may not be reduced by filing a Waiver and Release. |
| PBJ or stet with a requirement of drug or alcohol abuse treatment. | Three years from the granting of PBJ or order of treatment or when PBJ or treatment is completed, whichever is later. |
| Unconditional pardon. | Five years, with a petition for expungement filed within ten years after the pardon is granted. |
| Nol pros with a requirement of drug or alcohol abuse treatment. | May file upon completion of treatment. |
| Nuisance crime. | Three year after conviction or upon completion of sentence, whichever is later. |
Juvenile Record: Generally, a juvenile record is not viewable by the public. However, there are circumstances in which the Circuit Court may exercise criminal jurisdiction over a person who would otherwise be considered a juvenile. If the juvenile court waives its jurisdiction, and the juvenile is treated as an adult, the case is treated like any other adult criminal case. .
Warnken, LLC, Obtains Expungements, Taking Three Necessary Steps & Taking a Fourth Step, if Needed
Warnken, LLC, is a law firm in Towson, MD. This Firm has a statewide criminal post-verdict practice, including (1) appeals in state courts, federal courts, and the Supreme Court; (2) petitions for post conviction relief and motions to reopen closed post conviction proceedings; (3) petitions for a writ of habeas corpus; (4) petitions for a writ of error coram nobis; (5) petitions for a writ of actual innocence based on newly discovered evidence; (6) general motions for a new trial, motions for a new trial based on newly discovered evidence, and motions for a new trial based on fraud, mistake, or irregularity; (7) sentencing motions, including (a) application for review of sentence by a three-judge panel, (b) motion for modification or reduction of sentence, and (c) motion to correct illegal sentence; (8) three-step motion for long term, in-patient drug treatment in lieu of incarceration; (9) parole proceedings; (10) clemency and pardon petitions, and (11) petitions for expungement.
The Firm has a reputation for providing honest, diligent, competent, and zealous representation. However, no promise or guarantee has been made, nor can be made, regarding any legal representation. For expungement, the legal representation includes the following steps:
Phase #1: Legal & Factual Research: Ten years ago, people rarely sought expungement. Today, with everything available on line, many people seek expungement. Also in the last decade, the public – and thus the legislature – has become more prosecution oriented on criminal justice issues. Consequently, the legislature has enacted more laws that prohibit or reduce the ability to obtain an expungement.
The Firm will conduct the necessary factual and legal research to determine eligibility to file an expungement for any case identified by the Client or during the Firm’s background check. The Firm will review available records to determine the Client’s criminal history, and when necessary, a criminal background check may be conducted at the Client’s expense to identify relevant information. At the conclusion of Phase #1, the Firm will provide the Client with a written opinion letter advising the Client of the criminal history and provide an opinion as to whether each case can be expunged. If it is determined that the Client is not eligible for expungement, the Firm will not complete subsequent phases. The Firm retain the fee for legal services earned for Phase #1 and return all other fees.
Phase #2A: Filing for Expungement if There is One Case to Be Expunged & Following Up with the Court & Government Agencies & Entities: The Firm shall prepare and file a Petition for Expungement for one case if it is determined that the client is eligible for expungement. If necessary, the Firm will prepare and file any supplemental memoranda required to establish timeliness or good cause to proceed prior to the statutory date for filing. The Firm will follow up with the Court to ensure timely review of the case and issuance of an Order of Expungement. Once an Order of Expungement is issued, the Firm will follow up with the relevant government agencies and entities to ensure compliance with the Order of Expungement.
Depending on the date that the Client was arrested, the Firm may need to prepare and file an additional document. If the Client was arrested prior to October 1, 2007, but not charged, the Firm will prepare and file the Investigative Release Form with the police agency. If applicable, the Firm will prepare and file a General Waiver & Release, which, in some cases, permits immediate expungement.
Phase #2B: Filing for Expungement if There Is More Than One Case to Be Expunged & Following Up with the Court & Government Agencies & Entities: The Firm shall prepare and file a Petition for Expungement in each additional case for which the Client has retained the Firm. The Firm will follow up with the Court to ensure timely review of the case and issuance of an Order of Expungement. Once an Order of Expungement is issued, the Firm will follow up with the relevant government agencies and entities to ensure compliance with the Order of Expungement.
After the Firm files for expungement in Phase #2A or Phase #2B, the Court has to wait for the State to file an Answer to the expungement pleadings. The State has 30 days to file an answer. The State rarely even files an Answer, and the failure to file an Answer constitutes the State’s consent to expungement. If the State files no Answer, the Court is required to issue an Order of Expungement within 30 days. The reality is that the criminal justice system is so busy, and expungements are so low on the priority list, that the Court usually does not sign and file an Order of Expungement timely. After another 30 days, following the 30 days for the State to file an Answer, this Firm sends a follow-up, requesting the Court to issue an Order of Expungement. If that does not produce an Order of Expungement within 30 days, the Firm attempts to determine which individual Judge has been assigned the expungement, and the Firm writes a letter directly to that Judge, requesting an Order of Expungement.
After this Firm has obtained the Order of Expungement, those agencies that have been ordered to expunge their records, e.g., police departments, prosecutors’ offices, and courts, are supposed to expunge the records within 30 days of the Order of Expungement (60 days of the Order of Shielding). The reality is that the government agencies and entities are so busy, and expungements are so low on the priority list, that the government agencies and entities usually do not expunge their records timely. After 30 days following receipt of the Order of Expungement, the Firm sends a follow-up, requesting each government agency and entity to comply with the Order of Expungement, as soon as possible. If that does not produce compliance with the Order of Expungement within 90 days, the Firm files a Petition for a Writ of Mandamus with the Judge that issued the Order of Expungement, requesting the Judge to Order immediate agency compliance.
Phase 3: Hearing: Hearings are usually not required on a Petition for Expungement. If a hearing is required, the Firm shall, when necessary, draft and file a pre-hearing memorandum explaining why the Client should be granted an expungement and conduct the hearing. Typically, a Petition for Expungement is granted without a hearing, but it is not possible for the Firm to predict, in advance, with any certainty, whether the Court will require a hearing.
