FAQS About Expungement

Expungement – FAQs

(UPDATED TO INCLUDE SENATE BILL 66 AMENDMENTS TO 2953.31 & 2953.32, EFFECTIVE 10/29/18)

What is an “Expungement”?

An expungement is the legal process in which a criminal offender (usually a first-time offender, or sometimes a second-time offender) seeks to have the records of his/her prior conviction(s) sealed, erased or destroyed.   Ohio law refers to expungements as the “sealing of record of conviction”.

What is the effect of having a record expunged?

The trial court would order that all the official records pertaining to the case be sealed, and all index references to the case deleted.  “The case shall be considered not to have occurred.”  Inspection of the sealed records is tightly restricted by the court.  The offender’s name would be removed from the clerk of court’s and other governmental agency’s public websites.

Who can apply to have a conviction (or convictions) expunged?

Prior to October 29, 2018, anyone who has been convicted of an offense who has not more than one felony conviction, not more than two misdemeanor convictions if the convictions are not of the same offense, or not more than one felony conviction and one misdemeanor.  Certain types of convictions cannot be expunged.

Effective October 29, 2018, “Anyone who has been convicted of one or more offenses, but not more than five felonies, in this state or any other jurisdiction, if all of the offenses in this state are felonies of the fourth or fifth degree or misdemeanors and none of those offense are an offense of violence or a felony sex offense and all of the offenses in another jurisdiction, if committed in this state, would be felonies of the fourth or fifth degree or misdemeanors and none of those offenses would be an offense of violence or a felony sex offense.”

What types of convictions cannot be expunged?

(A)   Convictions when the offender is subject to a mandatory prison term;

(B)   Convictions of the following:

  1. Convictions of any of the following sex offenses:
    1. Rape
    2. Sexual Battery
    3. Unlawful Sexual Conduct with a Minor
    4. Gross Sexual Imposition
    5. Sexual Imposition
    6. Pandering Obscenity Involving a Minor
    7. Pandering Sexually Oriented Material Involving a Minor
    8. Illegal Use of Minor in Nudity-Oriented Material or Performance
  2. Convictions for Motor Vehicle and Licensing Laws, such as:
    1. Convictions under Ohio Revised Code Chapter 4507: Driver’s License Law
    2. Convictions under Ohio Revised Code Chapter 4510: Driver’s License Suspension, Cancellation, or Revocation Laws
    3. Convictions under Ohio Revised Code Chapter 4511: Traffic Laws – Operation of Motor Vehicles
    4. Convictions under Ohio Revised Code Chapter 4549: Motor Vehicle Crimes
    5. PLEASE NOTE: Although convictions under this section are ineligible to be expunged, so long as they are minor misdemeanor violations, they DO NOT count towards the one felony/one misdemeanor or two misdemeanor case limits set forth above.

(C)   Convictions of an offense of violence when the offense is a misdemeanor of the first degree or a felony;

  1. However, the following violent offenses are still be eligible for expungement:
    1. Rioting
    2. Assault (misdemeanor of first degree version only)
    3. Inciting to Violence (misdemeanor of first degree version only)
    4. Inducing Panic (misdemeanor of first degree version only)

(D)   Convictions for Importuning on or after October 10, 2007;

(E)    Convictions on or after October 10, 2007 for the following offenses IF THE VICTIM OF THE OFFENSE WAS UNDER EIGHTEEN YEARS OF AGE:

  1. Voyeurism
  2. Public Indecency
  3. Compelling Prostitution
  4. Promoting Prostitution
  5. Enticement or Solicitation to Patronize a Prostitute
  6. Procurement of a Prostitute for Another
  7. Disseminating Matter Harmful to Juvenile
  8. Displaying Matter Harmful to Juvenile
  9. Pandering Obscenity
  10. Deception to Obtain Matter Harmful to Juveniles

(F)    Convictions of an offense in circumstances in which the victim of the offense was under eighteen years of age AND THE OFFENSE IS A MISDEMEANOR OF THE FIRST DEGREE OR A FELONY;

  1. This does not include convictions for Nonsupport or Contributing to Nonsupport of Dependents.

(G)  Convictions of a felony of the first or second degree;

(H)   Bail forfeitures in a traffic case as defined in Traffic Rule 2.

How long must a person wait before filing to have a criminal record expunged?

Prior to October 29, 2018, three years after the offender’s final discharge (completed all terms and conditions ordered by the trial court) if convicted of a felony, or at the expiration of one year after the offender’s final discharge if convicted of a misdemeanor.

Effective October 29, 2018, at the expiration of three years after the offender’s final discharge if convicted of one felony.  If the offender has been convicted of no more than five felonies, at the expiration of four years after the offender’s final discharge if convicted of two felonies, or at the expiration of five years after final discharge if convicted of three, four, or five felonies.  At the expiration of one year after the offender’s final discharge if convicted of a misdemeanor.

Is the trial court required to grant an expungement?

No.  Just because an offender is eligible to file for an expungement, does not mean that the trial court is required to grant the motion.

What findings must the trial court make before ruling on an expungement motion?

  1. The Court must determine whether the applicant is an eligible offender.
  2. The Court must determine whether criminal proceedings are pending against the applicant.
  3. The Court must determine whether the applicant has been rehabilitated to the satisfaction of the court.
  4. If the prosecutor has filed an objection, consider the reasons against granting the application specified by the prosecutor in the objection.
  5. Weigh the interests of the applicant in having the records pertaining to the applicant’s conviction sealed against the legitimate needs, if any, of the government to maintain those records.

Is there any reason not to have a criminal conviction expunged?

Absolutely not.  All eligible offenders should seek to have a conviction expunged at the earliest opportunity.  In today’s day and age, online court dockets make it rather easy for prospective employers and nosey neighbors to uncover negative information about a person.  Removal of a criminal record allows a person who has changed and learned from their past, to have a clean slate without the stigma of criminal conviction.

What if I don’t have a prior criminal conviction because the case was dismissed?

You should still seek to have that record sealed or expunged, as it is still out there publicly.  With dismissed cases, the law allows you to apply to have a dismissed case sealed immediately after the case is dismissed.

Who can view my expunged criminal records?

According to Revised Code 2953.32(D), “[i]nspection 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 post-release 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 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;

This covers persons seeking employment as:

  • Teachers and school employees
  • Adult care and hospice positions
  1. 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;

This covers persons seeking employment as:

  • Law enforcement or peace officers
  1. 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 of the Revised Code that was requested pursuant to any of the sections identified in division (B)(1) of that section;

This covers persons seeking employment as:

  • Employees of state treasurer’s office
  • Persons seeking issuance or transfer of license, permit, or certificate of registration through department of commerce
  • Ombudsman or direct-care providers through department of aging
  • Directors or managers of various financial institutions
  • Real estate appraisers
  • Medicaid providers
  • Nursing home employees
  • Health care services (i.e., nurse, physician, etc …)
  • Attorneys
  • Casino or gambling house employees
  • Department of Developmental Disabilities employees
  • The care, custody, and control of children
  • Child day care providers
  • Home health care workers
  • Children services workers
  1. By the bureau of criminal identification and investigation, an authorized employee of the bureau, a sheriff, or an authorized employee of a sheriff in connection with a criminal records check described in section 311.41 of the Revised Code;

This covers persons seeking CCW licenses

  1. 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;

This covers persons subject to sexual offender registration requirements

  1. By a court, the registrar of motor vehicles, a prosecuting attorney or the prosecuting attorney’s assistants, or a law enforcement officer for the purpose of assessing points against a person under section 4510.036 of the Revised Code or for taking action with regard to points assessed.

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.

About Jon Horwitz

Jon Horwitz is an experienced criminal defense lawyer dedicated to helping people charged of a crime. He is dedicated to providing honest, straightforward advice and advocacy in order to get the best possible result for each client. Jon currently lives in Centerville with his wife and two children. He coaches basketball through the Centerville Hustle organization and is a former soccer coach. He continues to play soccer and is an avid fan of the sport. Jon Horwitz's Google+ Profile

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