In most states, expunged records are sealed, not destroyed. Expungement laws aim to give people a better chance at becoming productive citizens, but they don't wipe the slate clean in most instances. Rather, many states restrict the general public from viewing expunged records, but allow access to these records for future criminal justice and certain employment decisions.
Basically, expungement laws are trying to balance public safety interests with the rights of citizens to move on from past mistakes. Expunging records can still be very beneficial, but it's good to understand that there are limits to these laws. Below are common examples of when your sealed or expunged record may come to light.
If you've successfully expunged or sealed your criminal record, in most situations, you can answer "No" when asked whether you have a criminal record. But not always. The answer varies depending on your state's laws, who's asking, and what type of record was expunged. Different rules might also apply to arrest, booking, and charging records where no conviction resulted versus records relating to a conviction.
As noted above, this answer will vary by state. It's common, though, for states to require certain job applicants to disclose relevant criminal records, even expunged ones, when seeking employment with the government or in sensitive positions or occupations. For example, a person applying to be a school bus driver may have to disclose any expunged convictions relating to child abuse, assault, traffic violations, or a DUI.
Also, certain government agencies will almost always have access to expunged records. Courts, law enforcement, prosecutors, and other criminal justice agencies can access expunged records for future criminal investigations and charging and sentencing decisions.
We'll review both of these situations in more detail below.
If you're seeking employment with the government or in a position involving sensitive clients or work, you'll likely need to disclose certain expunged convictions. Even if an applicant doesn't disclose the record, the law usually permits potential employers to request expanded background checks in these situations.
Many states and the federal government require disclosure of an expunged record when applying for government jobs where the position could involve access to confidential or sensitive records, require security clearances, or place workers in contact with vulnerable individuals. For example, records might become available during background screening for positions within the courts, law enforcement, child protection, corrections (prisons and jails), public health, elections, auditing, and more.
In most states, individuals who will work with vulnerable populations—like children, the elderly, or individuals with physical or behavioral impairments—need to disclose expunged records on employment applications. Examples of these sensitive positions include anyone working in a school, childcare facility, hospital, clinic, or nursing home. Sometimes, the law requires disclosure of only relevant convictions, such as records of child abuse, assault, or exploitation of a vulnerable adult; other times, any conviction must be disclosed. The disclosure requirement doesn't usually stop at positions involving direct contact with vulnerable individuals. It may also apply to janitors, administrators, kitchen staff, and any other position that places the worker near vulnerable persons.
People should also expect that their employers will have access to expunged records if they work in a fiduciary capacity (for the benefit of another), handle confidential or financial records, or provide services in homes (such as plumbers and electricians). Agencies reviewing applications for professional licenses, including law, pharmacy, or medicine, may also have access to expunged records.
Courts, law enforcement, prosecutors, and other criminal justice agencies can often use expunged records in later criminal proceedings. Some examples include using expunged records to conduct criminal investigations, enhance future charges, impose and enhance future criminal sentences, impeach (discredit) a witness, and review future expungement petitions.
Sealed records are often available to law enforcement in the course of their investigation of a possible crime and to agencies that review handgun license applications and concealed carry permits.
Prosecutors generally have access to expunged records for criminal charging purposes. Many offenses become more serious when the defendant has a prior conviction on record, for that offense or for another one. For example, petty theft is usually charged as a misdemeanor when it's the defendant's first such charge. But if the defendant has several petty theft convictions on record, the prosecutor might be able to charge the offense as a felony.
If you get into trouble with the law again, you might find yourself facing sentencing. Many times, sentences will be increased for repeat offenders. Both prosecutors and judges may consider expunged records when asking for and deciding on a sentence for a subsequent conviction. Prior convictions can also eliminate the option for diversion (alternative to a conviction) or probation.
Many states allow certain expunged convictions to be used to impeach a witness. This means the opposing counsel wants to discredit the witness by introducing evidence of their dishonest nature. To do this, the lawyer might seek to introduce evidence of the witness's past convictions for theft, bribery, or fraud.
Many states that allow convicted defendants to expunge their records offer the remedy only once. After that, records of criminal convictions cannot be sealed. Logically, in order to determine whether your current request to seal a record is your first, a court will need to look through its files to see whether you've done this already, so your expunged record will be accessible for this purpose.
Unfortunately, the internet never forgets anything, including your prior misdeeds. If a private website—such as a newspaper or online database—has published information about your criminal history, others may be able to find it even after your record is officially expunged or sealed. Getting this information removed can take some effort and might not always be successful.
Most often, you can find these records with a quick "Google" search. Based on what you find, you might try contacting the private website and ask it to remove the out-of-date information about your criminal history. Be prepared to provide a copy of the court order showing that your record has been officially expunged or sealed. Some state laws require online criminal record databases to update and correct outdated information. But, not every online entity must remove information. If an online newspaper, for instance, posted a story about your arrest at the time it happened, it's under no legal obligation to remove that story later.
Laws are constantly changing in this area. For instance, many states have enacted mugshot laws aimed at addressing predatory practices where private sites require payment to remove the information. If any private site asks you for payment to remove or correct information, don't pay—rather, contact your state's Attorney General's Office or consumer protection agency to see if they can assist you or have information.
If you have questions on when you need to legally disclose an expunged criminal record, it's best to speak with an attorney who works on expungement issues. You might be able to find information on a court or legal aid website. Some places offer what are called "expungement clinics" to assist individuals with expungement issues.
For consumer protection questions, contact an attorney who handles consumer protection or internet privacy laws. You can also try contacting your state's Attorney General's Office or consumer protection agency.