By: Jeff Scholnick, Attorney at Law
Every one has a New Year’s Resolution, this time of year, that involves improving themselves- losing weight, cleaning out the house, ridding themselves of old clothing and furniture. But, what if you could improve yourself with a legal “makeover”? Have you thought about an Expungement of your criminal records?
Having your prior criminal charges/probations expunged is relatively easy. The forms for a Petition for Expungement are available on the Maryland Court’s website http://www.courts.state.md.us/courtforms/joint/ccdccr072.pdf &
http://www.courts.state.md.us/courtforms/joint/ccdccr078.pdf. The hardest part about Expungement is figuring out what can be expunged and when you can apply for the Expungement.
A. What can be expunged? You can expunge:
- A charge against you which is dismissed or on which you were acquitted;
- A charge that was stetted, which means that it is indefinitely placed on an inactive status;
- A charge that is not prosecuted by the State’s Attorney (called a nolle prosequi);
- A case that was transferred to Juvenile Court;
- A case in which you were granted Probation before Judgement, except if the charge was for drunk driving, driving under the influence of drugs (Section 21-902 of the Transportation Article)or causing a Life-threatening injury by motor vehicle or vessel while under the influence of alcohol or drugs (Maryland Criminal Law Article, Section 3-211); and
- A conviction for certain “nuisance” offenses such as public urination, panhandling, drinking in public, loitering, vagrancy, or certain minor offenses while traveling on public transportation.
B. What cannot be expunged? You cannot expunge:
- Most criminal convictions (in other words, you were found guilty and did not receive probation before judgement);
- A probation before judgement for a charge driving under the influence of alcohol and drugs under Transportation Article Section 21-902 and similar charges under Criminal Law Article Section 3-211.
- Any other charge involving the same events that led to the conviction in B.1. or the probation before judgement in B. 2. above. For example, if you were given a stet or dismissal of an assault charge and were convicted of a theft charge resulting from the same occurrence, you can never expunge the stet/dismissal for the assault charge. Similarly, if you were given a probation before judgement on a drunk driving charge and during the traffic stop, you were charged with assaulting the officer who made the arrest, even if the assault charge is dismissed, you can never have it expunged (Maryland Criminal Procedure Article, Section 10-107);
- Civil cases, such as debt collections, divorce proceedings, custody cases
- Any domestic violence cases or protective order proceedings;
- Anything in A. above if, you have subsequently been convicted or have a criminal case pending.
C. Where can you file for an expungement?
- You should file the Petition for Expungement in the Court where your case was resolved or finished.
D. When can you file an expungement? This depends on how your case was concluded.
- If you were an acquitted, not prosecuted (nolle prosequi) or the charges were dismissed, you can immediately file for expungement. However, if you do not wait three years, then you have to file a General Waiver and Release- http://www.courts.state.md.us/courtforms/joint/ccdccr078.pdf
In other words, if you want to file right away, you have to give up the right to sue the police and anyone who might have filed the charges against you. So, if you intend to sue for false imprisonment or malicious prosecution, you cannot file immediately without giving up these rights to sue.
- If you received a stet, you have to wait until three years after the court date in which the stet was entered.
- If you received a probation before judgement, you must wait three years after the probation is over. For example, if you went to court on June 1, 2010 and were given one year probation, you cannot file for expungement until June 1, 2014.
- If you received a conviction for any of the “nuisance” offenses in Section A. 6. above, you have to wait three years from the end of your sentence and probation.
E. What does it cost to file for an expungement?
- If you were acquitted of all charges, there is no fee to file.
- For all other District Court expungements, the filing fee is $30.
- If you cannot afford the fee, you can ask the court to waive the fee.
F. How long does it take to obtain an expungement?
From the date you file, it takes about 90 days. This is because a copy of your Petition is sent to the State’s Attorney’s Office and police agency that was involved in the prosecution. Each office has 30 days to respond. If they do not object, the court will order them to expunge their records within 60 days.
G. Should I file for an expungement?
In almost all cases, you should file for an expungement, if you are eligible.
Any employer, landlord or even acquaintance can search the Maryland Judiciary Case Search site (http://casesearch.courts.state.md.us/inquiry/inquiry-index.jsp) and find out any prior charges against you.
In this tight job market, why would you want a potential employer to know that 20 years ago you were charged with possession of marijuana or a theft charge? When you apply to lease an apartment, why would want a landlord to know that you were charged with bouncing a check 10 years ago. And why would you want to take the chance that the nice girl/guy down the street, who just asked out on a date, will “google” you or go to the Maryland Judiciary Case Search and find out that 7 years ago you got into a fight with the police after “watering” your neighbors lawn. Why subject yourself to unnecessary scrutiny when it costs so little to file the Petition and you can get the forms on line (or at your nearest District Court), fill them out and file them yourself?
H. Are there any cases where you may not want to file for Expungement?
I can think of only two circumstances where you would not want to file:
1. If you wish to pursue a civil case against the police department which arrested/investigated you, or against person who falsely accused you, then you do not want to sign the Waiver. You should first see an attorney and investigate your options before filing for an expungement.
2. If you are not a U.S. citizen, you want to be certain that you have certified copies of court entries clearly showing the disposition of your case, before filing for an expungement. I watched a District Court case recently in which an attorney was attempting to reopen a case in which the file had been expunged. It seems the Defendant was being subjected to deportation proceedings based on allegations related to the original charges against him. Since he filed for an expungement immediately after the case was dismissed, he had no proof to show immigration officials. If similar circumstances might apply to you, consult with an attorney before filing for an expungement.
CONFUSED? CALL MY OFFICE WITH ANY QUESTIONS ABOUT EXPUNGEMENTS AND I WILL BE HAPPY TO ASSIST YOU.