Would You Like Your Criminal Record to Disappear?
That may be possible. There is a right in the Commonwealth of PA to petition the county court for “expungement” of a criminal arrest record. The judge will analyze the petition, may hold a hearing and then make a determination whether the expungement will be allowed. The decision of the court is dependent upon the manner of the disposition of the defendant’s (petitioner’s) charges. If the defendant has been tried and acquitted of the offenses charged, defendant’s petition will automatically be granted and the arrest record will be expunged. The appeals courts have consistently held that the petition cannot be denied based upon commonwealth’s need for “record keeping” or for “future case” needs.
When prosecution is terminated without a conviction or an acquittal for reason such as nolle prossed or if the defendant completes ARD, the court is required to balance the individual’s right to be free from the harm of an arrest record with the Commonwealth’s interest in preserving the specific record. The Commonwealth has the burden of proof as to why the arrest record should be retained in the hearing.
If the expungement is denied, the Court considers: the reason for retaining the record, the strength of the case against the petitioner, the age and criminal record of petitioner, the employment history of petitioner, the length of time lapsed between the arrest and the petition to expunge, and the adverse consequences. If the charges were dismissed because of a plea agreement, defendant is rarely entitled to an expungement of the dropped charges based on contract principles. Where a record is silent as to how charges were terminated, the Commonwealth has the burden to prove at the hearing that they were dropped in exchange for a plea.
Convictions of a crime may only be expunged if the defendant reaches the age of 70 and has been free from arrest for a minimum of 10 years or if the defendant is dead for three years and was long convicted of a summary offense and was free of arrest and prosecution for five years following the conviction for the offense and is not a type of crime that by PA statute is never allowed to be expunged.
The expungement of a Protection from Abuse (PFA) will not be granted if the preponderance of the evidence proved incidents of the abuse unless petitioner meets the statutory requirements of being 70 and free from arrest for at least 10 years or has been dead for at least three years and had no arrests or prosecutions for five years following the PFA.
Court may not, by statute, expunge any record where the defendant was put on ARD for violation of any offense where the victim was under the age of 18, or the offense involved charges of rape, sexual assault, indecent exposure, aggregated assault, prostitution or obscene or sexual materials.
It is an abuse of discretion of the court not to expunge the criminal record if the Commonwealth fails to show compelling evidence or as overriding interest that justifies the retention of the records. If the Commonwealth is unable to establish a prima facia case for the criminal charge, the Commonwealth must present compelling evidence to justify the retention of the arrest record.
Expungement of juvenile records is authorized by PA statute. Juvenile records will be expunged if:
- The complaint was filed but not substantiated or was dismissed.
- Six months have elapsed since final discharge of the juvenile from supervision under a consent decree and no proceeding seeking adjudication or conviction is pending.
- Five years have lapsed since final discharge from commitment and since that time, the person was not convicted of a felony or misdemeanor and proceeding is pending.
- The individual is 18 years or older and the Commonwealth attorney consents to the expungement and the court agrees after balancing these factors: type of offense, petitioner’s age, employment history, drug and alcohol problems, adverse consequences from the record and the need for the record to protect the safety of the public.
A juvenile offense may not be expunged if he/she was 14 years or older at the time of the offense and the offense involve rape, sexual assault, or a conspiracy to commit those offenses as established by PA statute. When a person has had a juvenile adjudication, that person must petition the court for the record to be expunged after the person reached the age of 18. If the person fails to request expungement via a motion to the court, that record may be considered when the sentence is determined for a crime committed by that person after age 18.
Whether a non-conviction arrest record may be expunged depends on how the charges were terminated. If dismissed as part of a plea deal, it may not be expunged but, if dismissed for other reasons, it may be expunged by the court after balancing the factors that justice requires.