Can a Real Estate Commission See an Expunged or Sealed Criminal Record?
Full Question:
Answer:
In Ohio, expungement is a court process that allows you to have any and all reference to a prior criminal conviction cleared and your court file sealed. Once your record is expunged, nothing will show up when your record is checked. 2907.03 Convictions are excluded from being sealed under the statutes below. However, even if your record is sealed law enforcement agencies, prosecutors, and other agencies can look at your sealed record; if you commit another crime, your sealed record can still be used against you in sentencing; and your sealed record may be used to show character or credibility in court proceedings. All official records pertaining to the case may be ordered sealed and, except that an index of sealed records may be maintained, all index references to the case deleted and, in the case of bail forfeitures, the court may dismiss the charges in the case.
In the case of appliying for a real estate license, there is no exception allowing access to sealed records, and the sealed conviction must not be disclosed unless it bears a direct and substantial relationship to the position for which the person is being considered.
Ohio statutes for sealing records provide in relevant part as follows:
Inspection of the sealed records included in the order may be made
only by the following persons or for the following purposes:
(1) By a law enforcement officer or prosecutor, or the assistants of
either, to determine whether the nature and character of the offense
with which a person is to be charged would be affected by virtue of
the person's previously having been convicted of a crime;
(2) By the parole or probation officer of the person who is the
subject of the records, for the exclusive use of the officer in
supervising the person while on parole or under a community control
sanction or a postrelease control sanction, and in making inquiries
and written reports as requested by the court or adult parole
authority;
(3) Upon application by the person who is the subject of the records,
by the persons named in the application;
(4) By a law enforcement officer who was involved in the case, for use
in the officer's defense of a civil action arising out of the
officer's involvement in that case;
(5) By a prosecuting attorney or the prosecuting attorney's
assistants, to determine a defendant's eligibility to enter a
pre-trial diversion program established pursuant to section 2935.36 of
the Revised Code;
(6) By any law enforcement agency or any authorized employee of a law
enforcement agency or by the department of rehabilitation and
correction as part of a background investigation of a person who
applies for employment with the agency as a law enforcement officer or
with the department as a corrections officer;
(7) By any law enforcement agency or any authorized employee of a law
enforcement agency, for the purposes set forth in, and in the manner
provided in, section 2953.321 [2953.32.1] of the Revised Code;
(8) By the bureau of criminal identification and investigation or any
authorized employee of the bureau for the purpose of providing
information to a board or person pursuant to division (F) or (G) of
section 109.57 of the Revised Code;
(9) By the bureau of criminal identification and investigation or any
authorized employee of the bureau for the purpose of performing a
criminal history records check on a person to whom a certificate as
prescribed in section 109.77 of the Revised Code is to be awarded;
(10) By the bureau of criminal identification and investigation or any
authorized employee of the bureau for the purpose of conducting a
criminal records check of an individual pursuant to division (B) of
section 109.572 [109.57.2] of the Revised Code;
(11) By the bureau of criminal identification and investigation, an
authorized employee of the bureau, a sheriff, or an authorized
employee of the sheriff in connection with a criminal records check
described in section 311.41 of the Revised Code;
(12) By the attorney general or an authorized employee of the attorney
general or a court for purposes of determining a person's
classification pursuant to Chapter 2950. of the Revised Code.
When the nature and character of the offense with which a person is to
be charged would be affected by the information, it may be used for
the purpose of charging the person with an offense.
(E) In any criminal proceeding, proof of any otherwise admissible
prior conviction may be introduced and proved, notwithstanding the
fact that for any such prior conviction an order of sealing previously
was issued pursuant to sections 2953.31 to 2953.36 of the Revised
Code.
(F) The person or governmental agency, office, or department that
maintains sealed records pertaining to convictions or bail forfeitures
that have been sealed pursuant to this section may maintain a manual
or computerized index to the sealed records. The index shall contain
only the name of, and alphanumeric identifiers that relate to, the
persons who are the subject of the sealed records, the word "sealed,"
and the name of the person, agency, office, or department that has
custody of the sealed records, and shall not contain the name of the
crime committed. The index shall be made available by the person who
has custody of the sealed records only for the purposes set forth in
divisions (C), (D), and (E) of this section.
(G) Notwithstanding any provision of this section or section 2953.33
of the Revised Code that requires otherwise, a board of education of a
city, local, exempted village, or joint vocational school district
that maintains records of an individual who has been permanently
excluded under sections 3301.121 [3301.12.1] and 3313.662 [3313.66.2]
of the Revised Code is permitted to maintain records regarding a
conviction that was used as the basis for the individual's permanent
exclusion, regardless of a court order to seal the record. An order
issued under this section to seal the record of a conviction does not
revoke the adjudication order of the superintendent of public
instruction to permanently exclude the individual who is the subject
of the sealing order. An order issued under this section to seal the
record of a conviction of an individual may be presented to a district
superintendent as evidence to support the contention that the
superintendent should recommend that the permanent exclusion of the
individual who is the subject of the sealing order be revoked. Except
as otherwise authorized by this division and sections 3301.121
[3301.12.1] and 3313.662 [3313.66.2] of the Revised Code, any school
employee in possession of or having access to the sealed conviction
records of an individual that were the basis of a permanent exclusion
of the individual is subject to section 2953.35 of the Revised Code.
§ 2953.33. (A) Except as provided in division (G) of section 2953.32 of
the....
(A) Except as provided in division (G) of section 2953.32 of the
Revised Code, an order to seal the record of a person's conviction
restores the person who is the subject of the order to all rights and
privileges not otherwise restored by termination of the sentence or
community control sanction or by final release on parole or post-release
control.
(B) In any application for employment, license, or other right or
privilege, any appearance as a witness, or any other inquiry, except as
provided in division (E) of section 2953.32 of the Revised Code, a person
may be questioned only with respect to convictions not sealed, bail
forfeitures not expunged under section 2953.42 of the Revised Code as it
existed prior to June 29, 1988, and bail forfeitures not sealed, unless
the question bears a direct and substantial relationship to the position
for which the person is being considered.
See also:
http://drl.wi.gov/category.asp?linkcatid=6&linkid=10&locid=0