Today we will be getting updated on the state of sealing records and expungement law in Ohio and the difference between the two. Expungement means to destroy, delete or erase a record so that it’s permanently unretrievable and it can never be found again. Expungement is currently only available to a victim of human trafficking. Sealing of a record is a court order to seal the record of DNA, fingerprints and case proceedings from the general public and from commercial background check services. Sealed records are not destroyed; they exist but there’s literally a piece of tape or a seal that is put over the file that can only be broken under very specific conditions and by very specific entities who have access to a sealed record.
Law enforcement can access sealed records for the purposes of investigation. Prosecutors can also access those sealed records for the purposes of investigation and determining the appropriateness of a particular charge. Parole and probation officers can access them again for the purpose of investigating their probationers and parolees. The named Person of the sealed record the person whose record is sealed, can ask to review the sealed record themselves. The police officer who was involved in the sealed case can access those records for their own defense in a civil action if they’re sued by the person whose record is sealed. The police can also access those records – including the Department of Rehabilitation and corrections and the Department of youth services, the prison system and the juvenile prison system- for the purposes of conducting a background check for people who want to work in their facilities or visit their facilities. The Ohio bureau of criminal identification can access those again for reporting purposes and background checks. Sheriff’s departments and particular deputies can do it for background checks as well. The State Attorney General’s office can access them for sex offender classification, as well as the Registrar of motor vehicles or prosecutors for assessing the number of appropriate points on a person’s driver’s license. Prosecutors can access them in a criminal proceeding, in order to impeach a defendant, and that means challenge their credibility based on that prior conviction. And the Board of Education is a jurisdiction that’s entitled to keep the record on file when they’re considering a permanent expulsion. So even if you have your criminal record sealed, there’s no power to force the Board of Education, or other administrative agencies from sealing those records.
Sealing a criminal record is highly important for employment purposes, with background checks, obtaining licenses, getting promotions, changing jobs, and finding a new job can become very difficult. Your records are public information, so running for office or even becoming a public figure by going so far as to coach your child sports team can also be hindered by a record. Most importantly, the personal satisfaction and knowledge that the mistake that you’ve made in the past has been remedied. You deserve that clean slate and the ability to move on with your life, and for the people that were found not guilty or had their charges dismissed, that slate never should have been dirtied in the first place.
Now let’s talk about who is an eligible offender under revised code 2953.31 to have their criminal record sealed. There are actually two criteria or sets of criteria under which people can have their records sealed in Ohio. Now under the first category or the ‘A section’, a person can have their records sealed if they have no more than five felony convictions of the fourth or fifth degree and they have misdemeanor convictions, none of which are felonies of the first, second or third degree, and none of those convictions are for felony sex offenses or felony crimes of violence. Under the second category or the ‘B section’, a person can have their record sealed if they have no more than two misdemeanor convictions or one misdemeanor and one felony conviction. Now under either criteria under either section, a conviction does include every conviction – so whether it’s from this state, another state, or the federal system, all of those convictions count towards your total number. And remember that some convictions like sex offenses, or crimes of violence, are never eligible to be sealed.
Eligible offenders do have to wait a certain statutorily set amount of time before they can have their record sealed. Now, the triggering of that for this is completion of the sentence. That means paying off all the fines, paying off any restitution that’s owed, serving out any jail sentence and successfully serving out any period of prison. The timelines for a felony conviction first depend on the number of convictions – after the completion of sentence, the offender has to wait three, four or five years, depending on the number of prior convictions and following the completion of the sentence. For all misdemeanors, it is one year after the completion of the sentence. Any arrests or charges that were never indicted have a practically guaranteed chance of sealing those records. You have to wait two years from the time the grand jury failed to indict the case or no bill was returned, but oftentimes, those charges can be sealed as soon as the we know that the prosecution isn’t moving forward.
We are often asked questions such as “can you do it on your own?” and “Do you need an attorney?”. The simple answer is that people can and frequently do file their own requests to have their record sealed, and especially so in simple cases, but this can be a very complex area of law. And the motion itself, the request to the court to have these record sealed, requires factual support with records, character letters, and often legal analysis to make sure and demonstrate to the court that the applicant is eligible, and the appropriate waiting period has passed. Just because an application is filed doesn’t mean it’ll be granted, the prosecutor’s office can and often will oppose that request. If it is important to you, you should really at least consider talking to an attorney. And in order to make sure that you’re successful, bringing in the assistance of an experienced attorney for the evidentiary hearing is crucial.