Many individuals who have served time for committing felony offenses have hope of someday rebuilding their lives and being granted a fresh start after their conviction. In some instances, an individual may be able to seek expungement of their felony record, but this is not always a realistic option.
Depending on where the offense took place and the type of crime that was committed, certain felonies may not be eligible for expungement. It is important for individuals seeking a clean record to understand which felonies cannot be expunged and what their options are in terms of realizing a criminal record-free future.
This guide will provide an overview of what felonies cannot be expunged so that you can make informed decisions about your post-conviction life.
Definition of Expungement
Expungement is a legal process that allows a court to seal or destroy criminal records from an individual’s criminal history, which makes them inaccessible to the public. The criminal record will still remain with the courts and law enforcement, but the public will no longer be able to see these records.
This can make a huge difference for individuals with criminal records since employers and landlords use this information when making decisions about applicants. However, not all felonies can be expunged – some require special allowances from the court in order for an individual’s record to be permanently sealed or destroyed.
To understand what felonies cannot be expunged, it is important to understand the laws governing expungement. In general, some common crimes that may not qualify for expungement include:
– Violent crimes like armed robbery and manslaughter
– Sex crimes like sexual assault and rape
-Internet offenses like cyberstalking and obscenity
– Serious drug charges like importing and manufacturing drugs
– Organized crime convictions
Felonies That Cannot Be Expunged
Certain felonies are not eligible for expungement, which means they will remain on your record despite any legal measures you might take. The types of felonies that are not eligible for expungement vary slightly by state, but the general categories include crimes such as murder, rape, and certain drug offenses.
Let’s take a closer look at which felonies cannot be expunged.
Crimes involving sexual misconduct
Crimes involving sexual misconduct, including sexual assault, rape, and other offenses of a sexual nature are typically not eligible for expungement. Depending on the severity of the crime and the jurisdiction in which it was committed, a conviction of a sex-based offense may lead to mandatory registration as a sex offender.
In addition to criminal charges that result from such acts, civil actions may also be taken against the alleged perpetrator. As such, convictions of this category of a felony often carry lifelong implications for those convicted, including social stigma and regulations that limit where they can live and work due to their status as registered sex offenders.
This is why crimes involving sexual misconduct are often excluded from having eligibility for expungement.
Crimes involving violence
Crimes involving violence are typically considered to be serious felonies that cannot be expunged from a person’s record. Examples of these types of offenses would include murder, attempted murder, felony assault, kidnapping, and other forcible felony offenses.
If the individual is charged with a lesser offense such as misdemeanor battery or simple assault, then the charge may be eligible to be expunged if there are sufficient facts and circumstances surrounding the offense.
Additionally, certain drug offenses as classified as felonies may not be eligible for expungement if the crime involved selling or distributing drugs; however, it is important to note that these statutes vary from state to state and only an experienced criminal defense attorney can provide the best advice on all issues related to expungement eligibility.
For instance, some non-violent drug offenses committed by younger individuals may qualify for expungement in certain jurisdictions under so-called “second-chance” laws that allow for extended periods after conviction before any proceedings can begin on a person’s record.
Overall, anyone who is convicted of a crime involving violence should consider seeking professional legal advice before pursuing any option relating to potential expungements because successful outcomes on these types of motions are unlikely given the serious nature of such crimes.
Crimes involving firearms
Crimes involving the use of firearms usually carry the most severe penalties and are considered some of the most serious types of felonies. These penalties are often designed to deter people from enacting violence with a weapon since criminal convictions for violent acts can have long-term implications.
Some examples include crimes such as murder or aggravated assault, or illegal possession of a firearm without a permit — all of which generally cannot be expunged.
Another type of felony commonly associated with weapons involves the illegal distribution or sale of firearms. This includes not only selling and obtaining guns illegally but also supplying gun parts or ammunition components to prohibited groups, such as minors under the age of 18.
This too typically is not eligible for expungement due to its severity and risk to public safety. Cases involving more minor offenses for possession and minor violations may be eligible for expungement depending on local and state laws, but it is best to check your local laws before asking for an expungement in these cases.
Cases involving firearms often carry federal sentences, which necessitate even stricter guidelines than those in place at the state level. It’s best to consult a lawyer before attempting any type of expungement process involving federal sentencing related to firearm possession, distribution, or sale crimes.
Felony driving under the influence (DUI) is a serious offense. Unfortunately, this charge—like other felonies—remains part of your official criminal record and cannot typically be expunged from your records in most states.
A felony DUI is usually charged when a person has been convicted of three or more DUIs in the past, an injury or death has occurred as a result of intoxication, or the person had a prohibited chemical substance such as drugs in their system at the time of testing.
In some states, “habitual DUI offenders” may be sentenced to prison in addition to some combination of hefty fines, community service, and court-approved alcohol counseling. The length of sentence resulting from conviction often depends upon the jurisdiction as well as factors such as age and prior driving record.
Upon completion of the sentence, many individuals may find themselves facing additional difficulties in job searching or applying for housing due to background checks that reveal the previous offense(s).
Even after completion of a sentence for a felony DUI charge, certain rights will still be revoked for an indefinite amount of time—such as driving privileges and the right to obtain certain firearms licenses or even vote depending on state law—regardless of you’re eligible for expungement.
Although some states do allow people who have been convicted to pursue partial expungement for non-violent felonies under specific circumstances; drunk driving falls into a separate category where expungement generally does not apply.
Felony drug offenses
Felony drug offenses are a type of felony that cannot be expunged. Examples of felony drug offenses include possession of a controlled substance, distribution of a controlled substance, and manufacturing or cultivating drugs.
In most cases, if you pleaded guilty or were found guilty to any felony related to the possession, sale, distribution, or manufacturing of illegal substances or substances that are regulated by the government (such as the Controlled Substances Act), those convictions will remain on your record permanently and cannot be expunged.
In certain cases, for example, when an individual is found guilty of simple possession for personal use, states may allow for limited expungement after substantial rehabilitation has occurred and/or some period of time has elapsed since release from custody or probation.
If you were convicted as an adult in any state other than California you will still have the felony permanently listed on your record and it cannot be expunged; however, in some cases, you may be able to obtain an Order for Factual Innocence to remove an arrest from your criminal record.
On rare occasions, a judge may order an entire criminal history file sealed rather than expunged but this is extremely difficult to obtain and is typically only granted in unique situations such as when there was police misconduct or prosecutorial errors involved in prior arrests or convictions.
When determining which felonies cannot be expunged, it is important to look at more than just the crime itself. It is also important to consider other factors, such as the severity of the crime, the length of time since the crime was committed, and the jurisdiction in which the crime was committed.
This section will look at all the possible considerations that need to be taken into account when determining which felonies cannot be expunged.
Length of time since conviction
In addition to alternative sentencing and deferred adjudication, another factor courts consider in determining whether or not to grant an expungement is how long it has been since the conviction. In many states, there is a waiting period before you can apply for an expungement.
The length of this period varies from state to state – some states may require as little as one year and others may require up to five years after the completion of your sentence. State laws may also provide a longer waiting period if you have multiple convictions or if they are considered more serious offenses.
In order to qualify for an expungement, the record must typically be free of any other charges or violations during this prescribed time period.
This includes all types of violations including but not limited to law infractions, misdemeanors, traffic violations and even driving under the influence (DUI) charges that occurred after the conviction being considered for expungement.
If you have been arrested again while on parole or probation or while waiting for your petition for expungement to be heard by the court; your chances of getting it approved decrease significantly and are unlikely without taking additional steps beforehand.
Number of convictions
The number of felonies you have on your criminal record can affect whether or not you are eligible for expungement. Generally, people with only one felony conviction are more likely to be approved for expungement than those with multiple felony convictions.
In some states, if you have been convicted of two or more felony offenses within a specific timeframe, the law may not permit you to receive an expungement.
Additionally, if a judge determines that it is necessary to protect the public interest, they may deny your request even if there is only one conviction on your record.
In some jurisdictions, there are restrictions pertaining to the type and number of convictions that may be expunged. For instance, certain violent crimes such as murder or sexual assault typically cannot be removed from your record.
Other crimes considered serious enough by courts in certain states may also disqualify someone from getting their record expunged.
The laws governing what types and how many convictions can be expunged vary from location to location; therefore, it is important to research and understand any local regulations before filing your petition for expungement so that you can accurately determine your chances of success.
Nature of the offense
When determining the eligibility for expungement, the courts consider a variety of factors, including the nature of the offense committed and its severity. Certain “crimes of violence” — that is, felonies that involve physical force or threats to another person — are not eligible for expungement.
Examples include felonious assault, aggravated robbery, kidnapping, and murder. In addition, any felony charge involving a weapon or drug misuse will most likely not be eligible for any type of expungement or sealing in all jurisdictions.
Other crimes that cannot be expunged may include sex offenses requiring registration on the public registry and any crime classified as a misdemeanor of violence.
The court also evaluates mitigating factors when determining whether to grant an expungement request.
Mitigating factors refer to issues such as whether the individual had maintained steady employment prior to conviction; their demonstrated interest in turning their life around through job seeking or volunteer work; any rehabilitation programs they have successfully completed; and/or having stayed out of trouble with law enforcement since their conviction.
Ultimately, each case is different and it is up to the court system to decide if an individual qualifies for certain types of disposition outcomes such as record sealing or expunging prior criminal convictions from public view.
In many states, felonies involving a violent crime, sexual offense, or arson can not be expunged and remain part of your criminal record. However, in some cases, you can petition the court to have your felony reduced to a misdemeanor, and then it might be eligible for expungement.
But working with an experienced attorney is the best way to find out what crimes can or cannot be expunged under various state laws.
Each state has different laws regarding when and how an individual can pursue the expungement of their records.
Ultimately, the decision to grant an expungement is still left up to the discretion of the judge and you will need to build a convincing case as to why your particular felony should qualify for CIMT status and why it should be removed from your criminal history.
To prepare such a case, it is important for you to understand what types of felonies will not qualify for CIMT status so that you are not wasting time on a pursuit that will often be unsuccessful.
To summarize, felonies committed by minors; certain property offenses; certain fraud-related offenses; certain nonviolent drug offenses; some sex offenses; murder or attempted murder; any form of homicide (including voluntary manslaughter); first-degree assault or attempted first-degree assault; robbery or attempted robbery; kidnapping or attempted kidnapping; burglary in the first-degree arson in the first degree or in any other degree that involves endangering any person’s life can generally not be expunged.