Originally published on Feb 23, 2020
Joann Sahl AND Russell Nicholls
Herald Star
Eligible offenders convicted of certain types of crimes can ask the court to expunge, or seal, their convictions. If the court seals a conviction, that conviction is no longer in the public record. Courts seal records so that eligible offenders can move on with their lives without the stigma of a criminal conviction.
Qualifying for sealing
An eligible offender is someone who has no more than five felony convictions. An eligible offender may have unlimited misdemeanor convictions. When a court determines if you are eligible for sealing, it will not consider minor misdemeanors and most convictions for possession of marijuana (which is generally a minor misdemeanor). The court also will not consider most minor traffic offenses, but it will consider convictions for OVIs and DUIs.
Most misdemeanors, fourth and fifth-degree felonies, and in some instances a third-degree felony, can be sealed unless a criminal statute specifically states that a particular crime is not eligible.
Though the court will not consider minor traffic offenses when determining if you are an eligible offender, traffic offenses, including OVIs/DUIs, cannot be sealed. Additionally, you cannot seal first- and second-degree felonies, and any felony with a mandatory prison sentence. Finally, almost all crimes of violence, sex crimes and offenses where the victim was under 16 years old cannot be sealed. However, first-degree misdemeanor assault and domestic violence menacing, a fourth-degree misdemeanor, can be sealed in some circumstances.
How to apply for sealing
You may apply for sealing if one year has passed since your sentence ended for a misdemeanor. If you have one felony, you have to wait three years after your felony sentence ends. For two felonies, the waiting period is four years, and for three to five felonies, you must wait five years after your last felony sentence ended. In addition, the waiting period generally does not begin until you pay any restitution you might owe, as well as fines.
Your request for sealing should be filed in the court where you were sentenced. Once you apply, the court will set a hearing date. The probation department will usually investigate your case and prepare a report for the court to use to determine whether you are an eligible offender. The prosecutor may challenge the sealing request by filing an objection before the hearing date.
The court will determine if you have been rehabilitated, and it will weigh your interest in clearing your name against the government’s need to allow public access to your records. The court will review the probation report to see how you have behaved since the conviction. The decision whether to seal your record is up to the judge.
It is important to know that the court will not automatically seal your case if it was dismissed, you were found not guilty or if the grand jury issued a “no bill” and refused to indict you. You must follow the procedure outlined in this article to get records sealed. There is no waiting period to file for sealing a dismissal or a not guilty verdict. A person may apply to have a “no bill” sealed two years after it is filed.
Access to sealed records
In some situations, the law allows certain employers and state agencies to access your sealed record.
Examples include if you want to care for an older adult, work for a children’s services agency, work for a bank or want to work as a police or corrections officer.
If you apply for a state vocational license, the licensing agency also may be able to see your sealed record. In addition, the police may be able to access your sealed record as part of a criminal case or investigation or if you are seeking a concealed carry permit.
People might also be able to find out about your conviction online. There are many private background check companies, as well as news articles, that may have information about your criminal case. Those organizations will not receive notice that your conviction has been sealed. Once the court seals your record, you should try to notify any organization that has a record of your conviction. It is important to remember that potential employers may use these companies to perform pre-employment background checks, and your conviction could still appear on a background check.
How an attorney can help
It can be complicated to determine if you are eligible to have your criminal record sealed. It requires a review of all of your convictions, even those in other states, and the appropriate law. An attorney can look at your criminal record to help you decide if you are eligible to have your record sealed.
(Sahl is the assistant director of the University of Akron Legal Clinic. Nichols is the director of the Expungement Clinic and the Inmate Assistance program at the University of Akron Law School. The column was written as part of the Ohio State Bar Association’s Law You Can Use series.)
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