Is there a time frame in how much time you have to get your record expunged?
Full Question:
Is there a time frame in how much time you have to get your record expunged? For example if the felony charge was convicted a year ago, how long do you have to wait till you can start expunging procedures? Is there also an expiration date of too many years gone by that it is too late to expunge a record?
10/19/2007 |
Category: Criminal ยป Expungement ... |
State: Pennsylvania |
#10586
Answer:
The applicable Pennsylvania statutes are as follows:
18 Pa.C.S.A. § 9122. Expungement
(a) Specific proceedings. — Criminal history record information shall
be expunged in a specific criminal proceeding when:
(1) no disposition has been received or, upon request for criminal
history record information, no disposition has been recorded in the
repository within 18 months after the date of arrest and the court of
proper jurisdiction certifies to the director of the repository that no
disposition is available and no action is pending. Expungement shall not
occur until the certification from the court is received and the director
of the repository authorizes such expungement;
(2) a court order requires that such nonconviction data be expunged; or
(3) a person 21 years of age or older who has been convicted of a
violation of section 6308 (relating to purchase, consumption, possession
or transportation of liquor or malt or brewed beverages) petitions the
court of common pleas in the county where the conviction occurred seeking
expungement and the person has satisfied all terms and conditions of the
sentence imposed for the violation, including any suspension of operating
privileges imposed pursuant to section 6310.4 (relating to restriction of
operating privileges). Upon review of the petition, the court shall order
the expungement of all criminal history record information and all
administrative records of the Department of Transportation relating to
said conviction.
(b) Generally. — Criminal history record information may be expunged
when:
(1) An individual who is the subject of the information reaches 70
years of age and has been free of arrest or prosecution for ten years
following final release from confinement or supervision; or
(2) An individual who is the subject of the information has been dead
for three years.
(b.1) Prohibition. — A court shall not have the authority to order
expungement of the defendant's arrest record where the defendant was
placed on Accelerated Rehabilitative Disposition for a violation of any
offense set forth in any of the following where the victim is under 18
years of age:
Section 3121 (relating to rape).
Section 3122.1 (relating to statutory sexual assault).
Section 3123 (relating to involuntary deviate sexual intercourse).
Section 3124.1 (relating to sexual assault).
Section 3125 (relating to aggravated indecent assault).
Section 3126 (relating to indecent assault).
Section 5902(b) (relating to prostitution and related offenses).
Section 5903 (relating to obscene and other sexual materials and
performances).
(c) Maintenance of certain information required or authorized. —
Notwithstanding any other provision of this chapter, the prosecuting
attorney and the central repository shall, and the court may, maintain a
list of the names and other criminal history record information of
persons whose records are required by law or court rule to be expunged
where the individual has successfully completed the conditions of any
pretrial or post-trial diversion or probation program. Such information
shall be used solely for the purpose of determining subsequent
eligibility for such programs and for identifying persons in criminal
investigations. Criminal history record information may be expunged as
provided in subsection (b)(1) and (2). Such information shall be made
available to any court or law enforcement agency upon request.
(d) Notice of expungement. — Notice of expungement shall promptly be
submitted to the central repository which shall notify all criminal
justice agencies which have received the criminal history record
information to be expunged.
(e) Public records. — Public records listed in section 9104(a)
(relating to scope) shall not be expunged.
(f) District attorney's notice. — The court shall give ten days prior
notice to the district attorney of the county where the original charge
was filed of any applications for expungement under the provisions of
subsection (a)(2).
35-3-37. Inspection of criminal records; purging, modifying, or
supplementing of records.
(a) Nothing in this article shall be construed so as to authorize any
person, agency, corporation, or other legal entity to invade the privacy of
any citizen as defined by the General Assembly or the courts other than to
the extent provided in this article.
(b) The center shall make a person's criminal records available for
inspection by such person or his or her attorney upon written application
to the center. Should the person or his or her attorney contest the
accuracy of any portion of the records, it shall be mandatory upon the
center to make available to the person or such person's attorney a copy of
the contested record upon written application identifying the portion of
the record contested and showing the reason for the contest of accuracy.
Forms, procedures, identification, and other related aspects pertinent to
access to records may be prescribed by the center.
(c) If an individual believes his or her criminal records to be
inaccurate or incomplete, he or she may request the original agency having
custody or control of the detail records to purge, modify, or supplement
them and to notify the center of such changes. Should the agency decline to
act or should the individual believe the agency's decision to be
unsatisfactory, the individual or his or her attorney may, within 30 days
of such decision, enter an appeal to the superior court of the county of
his or her residence or to the court in the county where the agency exists,
with notice to the agency, to acquire an order by the court that the
subject information be expunged, modified, or supplemented by the agency of
record. The court shall conduct a de novo hearing and may order such relief
as it finds to be required by law. Such appeals shall be entered in the
same manner as appeals are entered from the probate court, except that the
appellant shall not be required to post bond or pay the costs in advance.
If the aggrieved person desires, the appeal may be heard by the judge at
the first term or in chambers. A notice sent by registered or certified
mail or statutory overnight delivery shall be sufficient service on the
agency having custody or control of disputed record that such appeal has
been entered. Should the record in question be found to be inaccurate,
incomplete, or misleading as set forth in paragraph (3) of subsection (d)
of this Code section, the court shall order it to be appropriately
expunged, modified, or supplemented by an explanatory notation. Each agency
or individual in the state with custody, possession, or control of any such
record shall promptly cause each and every copy thereof in his or her
custody, possession, or control to be altered in accordance with the
court's order. Notification of each such deletion, amendment, and
supplementary notation shall be promptly disseminated to any individuals or
agencies, including the center, to which the records in question have been
communicated, as well as to the individual whose records have been ordered
so altered.
(d)(1) An individual who was:
(A) Arrested for an offense under the laws of this state but subsequent
to such arrest is released by the arresting agency without such offense
being referred to the prosecuting attorney for prosecution; or
(B) After such offense referred to the proper prosecuting attorney, and
the prosecuting attorney dismisses the charges without seeking an
indictment or filing an accusation may request the original agency in
writing to expunge the records of such arrest, including any fingerprints
or photographs of the individual taken in conjunction with such arrest,
from the agency files. Such request shall be in such form as the center
shall prescribe. Reasonable fees shall be charged by the original agency
and the center for the actual costs of the purging of such records,
provided that such fees shall not exceed $50.00.
(2) Upon receipt of such written request, the agency shall provide a copy
of the request to the proper prosecuting attorney. Upon receipt of a copy
of the request to expunge a criminal record, the prosecuting attorney shall
promptly review the request to determine if it meets the criteria for
expungement set forth in paragraph (3) of this subsection. If the request
meets those criteria, the prosecuting attorney shall review the records of
the arrest to determine if any of the material contained therein must be
preserved in order to protect the constitutional rights of an accused under
Brady v. Maryland.
(3) An individual has the right to have his or her record of such arrest
expunged, including any fingerprints or photographs of the individual taken
in conjunction with such arrest, if the prosecuting attorney determines
that the following criteria have been satisfied:
(A) The charge was dismissed under the conditions set forth in paragraph
(1) of this subsection;
(B) No other criminal charges are pending against the individual; and
(C) The individual has not been previously convicted of the same or
similar offense under the laws of this state, the United States, or any
other state within the last five years, excluding any period of
incarceration.
(4) The agency shall expunge the record by destroying the fingerprint
cards, photographs, and documents relating exclusively to such person. Any
material which cannot be physically destroyed or which the prosecuting
attorney determines must be preserved under Brady v. Maryland shall be
restricted by the agency and shall not be subject to disclosure to any
person except by direction of the prosecuting attorney or as ordered by a
court of record of this state.
(5) It shall be the duty of the agency to notify promptly the center of
any records which are expunged pursuant to this subsection. Upon receipt of
notice from an agency that a record has been expunged, the center shall,
within a reasonable time, restrict access to the criminal history of such
person relating to such charge. Records for which access is restricted
pursuant to this subsection shall be made available only to criminal
justice officials upon written application for official judicial law
enforcement or criminal investigative purposes.
(6) If the agency declines to expunge such arrest record, the individual
may file an action in the superior court where the agency is located as
provided in Code Section 50-13-19. A decision of the agency shall be upheld
only if it is determined by clear and convincing evidence that the
individual did not meet the criteria set forth in paragraph (3) of this
subsection or subparagraphs (A) through (G) of paragraph (7) of this
subsection. The court in its discretion may award reasonable court costs
including attorney's fees to the individual if he or she prevails in the
appellate process. Any such action shall be served upon the agency, the
center, the prosecuting attorney having jurisdiction over the offense
sought to be expunged, and the Attorney General who may become parties to
the action.
(7) After the filing of an indictment or an accusation, a record shall
not be expunged if the prosecuting attorney shows that the charges were
nolle prossed, dead docketed, or otherwise dismissed because:
(A) Of a plea agreement resulting in a conviction for an offense arising
out of the same underlying transaction or occurrence as the conviction;
(B) The government was barred from introducing material evidence against
the individual on legal grounds including but not limited to the grant of a
motion to suppress or motion in limine;
(C) A material witness refused to testify or was unavailable to testify
against the individual unless such witness refused to testify based on his
or her statutory right to do so;
(D) The individual was incarcerated on other criminal charges and the
prosecuting attorney elected not to prosecute for reasons of judicial
economy;
(E) The individual successfully completed a pretrial diversion program,
the terms of which did not specifically provide for expungement of the
arrest record;
(F) The conduct which resulted in the arrest of the individual was part
of a pattern of criminal activity which was prosecuted in another court of
this state, the United States, another state, or foreign nation; or
(G) The individual had diplomatic, consular, or similar immunity or
inviolability from arrest or prosecution.
(8) If the prosecuting attorney having jurisdiction determines that the
records should not be expunged because the criteria set forth in paragraph
(3) or subparagraphs (A) through (G) of paragraph (7) of this subsection
were not met, and the agency or center fails to follow the prosecuting
attorney's recommendation, the prosecuting attorney having jurisdiction
over the offense sought to be expunged or the Attorney General may appeal a
decision by the agency or center to expunge a criminal history as provided
in Code Section 50-13-19.
(9) An individual who has been indicted or charged by accusation that was
subsequently dismissed, dead docketed, or nolle prossed may request an
expungement as provided by paragraphs (1) through (3) of this subsection;
provided, however, that if the prosecuting attorney objects to the
expungement request within 60 days after receiving a copy of said request
from the agency, the agency shall decline to expunge and the individual
shall have the right to appeal as provided by paragraph (6) of this
subsection.
(10) Nothing in this subsection shall be construed as requiring the
destruction of incident reports or other records that a crime was committed
or reported to law enforcement. Further, nothing in this subsection shall
be construed to apply to custodial records maintained by county or
municipal jail or detention centers. It shall be the duty of the agency to
take such action as may be reasonable to prevent disclosure of information
to the public which would identify such person whose records were expunged.
(e) Agencies, including the center, at which criminal offender records
are sought to be inspected may prescribe reasonable hours and places of
inspection and may impose such additional procedures, fees not to exceed
$3.00, or restrictions including fingerprinting as are reasonably necessary
to assure the records' security, to verify the identities of those who seek
to inspect them, and to maintain an orderly and efficient mechanism for
inspection of records.
(f) The provisions of Chapter 13 of Title 50, the "Georgia Administrative
Procedure Act," shall not apply to proceedings under this Code section.
(g) If the center has notified a firearms dealer that a person is
prohibited from purchasing or possessing a handgun pursuant to Part 5 of
Article 4 of Chapter 11 of Title 16 and if the prohibition is the result of
such person's being involuntarily hospitalized within the immediately
preceding five years, upon such person or his or her attorney making an
application to inspect his or her records, the center shall provide the
record of involuntary hospitalization and also inform the person or
attorney of his or her right to a hearing before the judge of the probate
court or superior court relative to such person's eligibility to possess or
transport a handgun.
35 P. S. § 780-119. Expunging criminal records
(a) Any records of arrest or prosecution or both for a criminal
offense under this act, except for persons indicted for
violations of clause (30) of subsection (a) of section 13,[fn1]
or under the provisions previously governing controlled
substances in the Commonwealth of Pennsylvania or any political
subdivision thereof shall be promptly expunged from the official
and unofficial arrest and other criminal records pertaining to
that individual when the charges are withdrawn or dismissed or
the person is acquitted of the charges: Provided, That such
expungement shall be available as a matter of right to any person
only once. Within five days after such withdrawal, dismissal or
acquittal the court, in writing, shall order the appropriate
keepers of criminal records (i) to expunge and destroy the
official and unofficial arrest and other criminal records of that
individual, to request in so far as they are able the return of
such records as they have made available to Federal and other
State agencies, and to destroy such records on receipt thereof;
and (ii) to file with the court within thirty days an affidavit
that such records have been expunged and destroyed, together with
the court's expunction order and to retain no copies thereof.
Upon receipt of such affidavit, the court shall seal the same
together with the original and all copies of its expunction order
and shall not permit any person or agency to examine such sealed
documents.
The court shall file with the council a list of those persons
whose record was expunged. The council shall maintain a
confidential list, which list may be used only for the purpose of
determining the eligibility of persons for the expunction
provisions under this section and to be made available to any
court upon request.
(b) Any expunged record of arrest or prosecution shall not
hereafter be regarded as an arrest or prosecution for the purpose
of any statute or regulation or license or questionnaire or any
civil or criminal proceeding or any other public or private
purpose. No person shall be permitted to learn of an expunged
arrest or prosecution, or of the expunction, either directly or
indirectly. Any person, except the individual arrested or
prosecuted, who divulges such information in violation of this
subsection shall be guilty of a summary offense and shall, upon
conviction thereof, be punished by imprisonment not exceeding
thirty (30) days or a fine not exceeding five hundred dollars
($500) or both.
(c) Nothing contained in this section shall prohibit a person
acting pursuant to prior practice from petitioning an appropriate
court for an expunction order.
[fn1] 35 P. S. § 780-113.