What is the difference between an expungement and record sealing?
- Expungement:
- The record is completely destroyed forever. No one has any access to these records. They are not retrievable.
- Eligible minor misdemeanors can be expunged after 6 months.
- Eligible M1-M4 misdemeanors can be expunged after one year.
- Eligible felonies can be expunged after 11-13 years.
- Record Sealing:
- As it sounds, this just seals the record from most of the public.
- It acts as if the incident never happened.
- Record sealing laws in Ohio have expanded quite a bit over the last ten years. Especially the number of charges a person can seal. If you were ineligible in the past, it’s important to contact an attorney to see if you may be eligible now.
What is the process for sealing / expunging a record?
- First contact an attorney and have them determine if you are eligible.
- Your attorney will file an application with the court.
- If you have convictions in multiple courts, you will have to file applications in each court. There is no way to file a universal application that will cover all courts.
- The probation department will then perform a background check and submit a report to the court and the prosecutor.
- The prosecutor has an opportunity to file an objection.
- The court will then set the case for a hearing.
- It’s important to note that if the court holds a hearing and denies the record sealing / expungement, then you are precluded from ever filing again. This is why it’s important to hire an attorney for this process.
- If the judge grants the record sealing / expungement, then the entry is sent to all background check agencies in the country. It generally takes a couple months for all background check agencies to update their records.
- If you want to double check that your records have been updated, you can go to your local sheriff’s office and pay to have them run a background check.
STEP 1: Which Records are NOT Eligible?
Effective April, 2023, any dismissal can be sealed. Many convictions can also be sealed / expunged EXCEPT FOR:
- 1st or 2nd degree felonies;
- 3 or more 3rd degree felonies;
- Traffic convictions:
- Chapter 4511: speed, OVI, driving while texting, etc.
Chapter 4506: CDL related offenses
Chapter 4507: driver's license-related offenses
Chapter 4510: drivers license suspensions
Chapter 4549: hit-skip, fictitious license palates, etc.
- Chapter 4511: speed, OVI, driving while texting, etc.
- Domestic Violence convictions (R.C. 2919.25);
- Violations of Protection Order convictions (R.C. 2919.27);
- Offenses where the victim was under 13 years old (except non-support of dependents R.C. 2919.21);
- Felony offenses of violence:
- 2905.01 Abduction
- 2909.02 Aggravated arson
- 2903.12 Aggravated assault
- 2911.11 Aggravated burglary
- 2903.21 Aggravated menacing
- 2903.01 Aggravated murder
- 2917.02 Aggravated riot
- 2911.01 Aggravated robbery
- 2909.03 Arson
- 2903.13 Assault
- 2911.12 (A)(1), (2), or (3) Burglary
- 2919.25 Domestic violence
- 2919.22(B)(1), (2), (3), or (4) Endangering children
- 2921.34 Escape
- 2905.11 Extortion
- 2903.11 Felonious assault
- 2907.12 (former) Felonious sexual penetration
- 2907.05 Gross sexual imposition
- 2923.161 Improperly discharging firearm
- 2917.01 Inciting to violence
- 2917.31 Inducing panic
- 2921.03 Intimidation
- 2921.04 Intimidation of attorney, victim, or witness
- 2903.04 Involuntary Manslaughter
- 2905.01 Kidnapping
- 2903.22 Menacing
- 2903.211 Menacing by stalking
- 2903.02 Murder
- 2903.34(A)(1) Patient Abuse or Neglect
- 2903.15 Permitting child abuse
- 2907.02 Rape
- 2917.03 Riot
- 2911.02 Robbery
- 2907.03 Sexual battery
- 2903.18 Strangulation or suffocation
- 2909.24 Terrorism
- 2905.32 Trafficking in Persons
- 2903.03 Voluntary Manslaughter
- Attempt, conspiracy, or complicity of any listed offense
- Sex offenses when the offender is subject to the requirements of Chapter 2950
- 2905.02(B) Abduction
- 2903.01 Aggravated murder
- 2907.21 Compelling prostitution
- 2905.05(B) Criminal child enticement
- 2919.22(B)(5) Endangering children
- 2903.11 Felonious assault
- 2907.05 Gross sexual imposition
- 2907.323 Illegal use of minor in nudity-oriented material or performance
- 2907.07 Importuning
- 2903.04(A) Involuntary manslaughter
- 2905.01 Kidnapping
- 2903.211(A)(3) Menacing by stalking
- 2903.02 Murder
- 2907.32 Pandering obsenity
- 2907.321 Pandering obscenity involing a minor or impaired person
- 2907.322 Pandering sexually oriented matter involving a minor or impaired person
- 2907.22 Promoting prostitution
- 2907.09 Public indecency
- 2907.02 Rape
- 2907.03 Sexual battery
- 2907.06 Sexual imposition
- 2905.32 Trafficking persons
- 2905.03(B) Unlawful restraint
- 2907.04 Unlawful sexual conduct with minor
- 2903.03(B) Voluntary manslaughter
- 2907.08 Voyeurism
- Tier III, such as Rape, Sexual Battery, GSI/victim under 12 where offenders are required to register every 90 days for life.
- Tier II, such as Compelling prostitution, Trafficking in persons where offenders are required to register every 180 days for 25 years.
- Tier I, such as Importuning, Voyeurism, Pandering obscenity where offenders are subject to registration once every 12 months for up to 15 years.
STEP 2: When can a person apply?
The applicant must not have any open or pending criminal cases, including warrants and traffic cases, which may include warrants, traffic cases, and community control.
All convictions on the application must reach final "discharge" and the applicable waiting period. A case is "discharged" when a person has fully completed any jail or prison sentence, any terms of probation or parole, and all payments of fines or fees that were a penalty for the conviction. Court costs are not part of a sentence, and unpaid court costs should not block an application.
- Minor Misdemeanor = 6 months after discharge
- Misdemeanor (M1-M4) = 1 year after discharge
- 4th or 5th degree felonies = 1 year after discharge
- 3rd degree Felonies = 3 years after discharge
- Offenses subject to 2950 reporting (sex offenses) = 5 years after reporting requirements end or are terminated
- Theft in office (R.C. 2921.43) = 7 years after discharge
- Bail Forfeiture = Any time after the date which the forfeiture was entered upon the court minutes or journal
- "No Bill" = 2 years after the decision is reported;
- Not Guilty or Dismissal = no waiting period;
- State v. Dye, Slip Opinion No. 2017-Ohio-7823, (Sept. 27, 2017) - Pursuant to R.C. 2953.52(B)(4), a trial court may seal the records in a case dismissed without prejudice before the statute of limitations has expired.
STEP 3: How does a person apply?
- File an application in the court you were convicted, along with a $50 filing fee;
- Case will be set for a hearing;
- The State may file an objection to your application for sealing / expungement;
- Even if the State files an objection, applicants must still attend the hearing to explain why they would like to seal or expunge their records over the prosecutor's objection.
STEP 4: Preparing for hearing:
- At the hearing, the court will make sure that the applicant has no open or pending cases, that all cases on the application have reached final discharge, and that each offense is eligible for sealing or expungement.
- Applicants should be prepared to discuss steps they have taken toward rehabilitation, including any therapy, substance abuse counseling, etc.
- Applicants will need to show that their interests in having the record sealed / expunged outweighs the government's interest in keeping the record public. This can be any reason the applicant wants the record addressed, such as better job opportunities, housing, volunteering, etc.
WANT TO DISCUSS YOUR CASE?
Unsure whether you qualify for expungement? Call Dimitri Makridis at (330) 394-1587.