How Long Does a Criminal Charge Stay on My Record?

Full Question:

I was charged with assault; how long will it be on my record and what does that actually mean?
07/02/2009   |   Category: Criminal ยป Expungement ...   |   State: Kentucky   |   #17315

Answer:

Expungement is the process of legally destroying, obliterating or striking out records or information in files, computers and other depositories relating to criminal charges. Once expunged, the records cannot be accessed for general law enforcement or civil use. The records are to be expunged by destroying the fingerprint cards, photographs, and documents relating exclusively to the person. Any material which cannot be physically destroyed or which the prosecuting attorney determines must be preserved for constitutional reasons 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. Records of arrest, including any fingerprints or photographs of the individual taken in relation to the arrest can be expunged. However, incident reports or other records that a crime was committed or reported to law enforcement will not be expunged.

The following are KY statutes:

431.078. Expungement of misdemeanor and violation
conviction records.

(1) Any person who has been convicted of a misdemeanor or a
violation, or a series of misdemeanors or violations arising
from a single incident, may petition the court in which he
was convicted for expungement of his misdemeanor or
violation record. The person shall be informed of the right
at the time of adjudication.

(2) The petition shall be filed no sooner than five (5)
years after the completion of the person's sentence or five
(5) years after the successful completion of the person's
probation, whichever occurs later.

(3) Upon the filing of a petition, the court shall set a
date for a hearing and shall notify the county attorney; the
victim of the crime, if there was an identified victim; and
any other person whom the person filing the petition has
reason to believe may have relevant information related to
the expungement of the record. Inability to locate the
victim shall not delay the proceedings in the case or
preclude the holding of a hearing or the issuance of an
order of expungement.

(4) The court shall order sealed all records in the custody
of the court and any records in the custody of any other
agency or official, including law enforcement records, if at
the hearing the court finds that:

(a) The offense was not a sex offense or an offense
committed against a child;

(b) The person had no previous felony conviction;

(c) The person had not been convicted of any other
misdemeanor or violation offense in the five (5) years prior
to the conviction sought to be expunged;

(d) The person had not since the time of the conviction
sought to be expunged been convicted of a felony, a
misdemeanor, or a violation;

(e) No proceeding concerning a felony, misdemeanor, or
violation is pending or being instituted against him; and

(f) The offense was an offense against the Commonwealth of
Kentucky.

(5) Upon the entry of an order to seal the records, and
payment to the circuit clerk of one hundred dollars ($100),
the proceedings in the case shall be deemed never to have
occurred; all index references shall be deleted; the persons
and the court may properly reply that no record exists with
respect to the persons upon any inquiry in the matter; and
the person whose record is expunged shall not have to
disclose the fact of the record or any matter relating
thereto on an application for employment, credit, or other
type of application. The first fifty dollars ($50) of each
fee collected pursuant to this subsection shall be deposited
into the general fund, and the remainder shall be deposited
into a trust and agency account for deputy clerks.

(6) Copies of the order shall be sent to each agency or
official named therein.

(7) Inspection of the records included in the order may
thereafter be permitted by the court only upon petition by
the person who is the subject of the records and only to
those persons named in the petition.

(8) This section shall be deemed to be retroactive, and any
person who has been convicted of a misdemeanor prior to
July 14, 1992, may petition the court in which he was
convicted, or if he was convicted prior to the inception of
the District Court to the District Court in the county where
he now resides, for expungement of the record of one (1)
misdemeanor offense or violation or a series of misdemeanor
offenses or violations arising from a single incident,
provided that the offense was not one specified in
subsection (4) and that the offense was not the precursor
offense of a felony offense for which he was subsequently
convicted. This section shall apply only to offenses against
the Commonwealth of Kentucky.

431.076. Expungement of criminal records for those found
not guilty of crimes or for whom charges have been dismissed
with prejudice.

(1) A person who has been charged with a criminal offense
and who has been found not guilty of the offense, or against
whom charges have been dismissed with prejudice, and not in
exchange for a guilty plea to another offense, may make a
motion, in the District or Circuit Court in which the
charges were filed, to expunge all records including, but
not limited to, arrest records, fingerprints, photographs,
index references, or other data, whether in documentary or
electronic form, relating to the arrest, charge, or other
matters arising out of the arrest or charge.

(2) The expungement motion shall be filed no sooner than
sixty (60) days following the order of acquittal or
dismissal by the court.

(3) Following the filing of the motion, the court may set a
date for a hearing. If the court does so, it shall notify
the county or Commonwealth's attorney, as appropriate, of an
opportunity for a response to the expungement motion. In
addition, if the criminal charge relates to the abuse or
neglect of a child, the court shall also notify the Office
of General Counsel of the Cabinet for Health and Family
Services of an opportunity for a response to the expungement
motion. The counsel for the Cabinet for Health and Family
Services shall respond to the expungement motion, within
twenty (20) days of receipt of the notice, which period of
time shall not be extended by the court, if the Cabinet for
Health and Family Services has custody of records reflecting
that the person charged with the criminal offense has been
determined by the cabinet or by a court under KRS
Chapter 620 to be a substantiated perpetrator of child abuse
or neglect. If the cabinet fails to respond to the
expungement motion or if the cabinet fails to prevail, the
order of expungement shall extend to the cabinet's records.
If the cabinet prevails, the order of expungement shall not
extend to the cabinet's records.

(4) If the court finds that there are no current charges or
proceedings pending relating to the matter for which the
expungement is sought, the court may grant the motion and
order the sealing of all records in the custody of the court
and any records in the custody of any other agency or
official, including law enforcement records. The court shall
order the sealing on a form provided by the Administrative
Office of the Courts. Every agency, with records relating to
the arrest, charge, or other matters arising out of the
arrest or charge, that is ordered to seal records, shall
certify to the court within sixty (60) days of the entry of
the expungement order, that the required sealing action has
been completed. All orders enforcing the expungement
procedure shall also be sealed.

(5) After the expungement, the proceedings in the matter
shall be deemed never to have occurred. The court and other
agencies shall reply to any inquiry that no record exists on
the matter. The person whose record is expunged shall not
have to disclose the fact of the record or any matter
relating thereto on an application for employment, credit,
or other type of application.

(6) Inspection of the expunged records may thereafter be
permitted by the court only upon a motion by the person who
is the subject of the records and only to those persons
named in the motion.

(7) This section shall be retroactive.

508.030. Assault in the fourth degree.

(1) A person is guilty of assault in the fourth degree when:

(a) He intentionally or wantonly causes physical injury to
another person; or

(b) With recklessness he causes physical injury to another
person by means of a deadly weapon or a dangerous instrument.

(2) Assault in the fourth degree is a Class A misdemeanor.

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