The number one misconception I come across is that people think that you can have a criminal conviction expunged. Unfortunately, that’s just not true. I get calls from at least two or three people a week who were convicted of a crime five, ten, fifteen, and sometimes twenty or more years ago. They have this idea that, “Well, because enough time has passed, I can go ahead and get this expunged off my record.” The reality is that if you have been convicted of any crime, whether a misdemeanor or felony, you can never have that case expunged. Unless you get a pardon, that case will stay on your record forever.
The second biggest misconception is that you can get your case expunged if you receive a deferred adjudication. You can’t. Deferred adjudication just allows you, in some instances, to get your case nondisclosed (i.e. sealed).
The third misconception I come across a lot is from people who were charged with two or more crimes out of the same arrest. It’s common for people in that situation to plead guilty to one charge in exchange for dismissals on the other charges. I’ll sometimes get calls from people who want to expunge those dismissed cases. They get very disappointed when I tell them they can’t.
For example, let’s say that a 17-year-old teenager is caught smoking marijuana by the police, runs off, but gets caught and arrested. He gets charged with two crimes: possession of marijuana and evading arrest on foot. He then pleads to a time served or a deferred adjudication on the marijuana case in exchange for a dismissal on the evading case. Years later, I have to tell that person: “Sorry, but you can’t expunge your dismissed case.”
The reason is that the expunction statute only allows the state to destroy records of an arrest (and records that flow from that arrest) and doesn’t allow the state to destroy records of a conviction or nondisclosure. So, in the case of the teenager charged with marijuana and evading, if the state destroyed the records of the evading, it also would have to destroy the records of the marijuana case because they both came out of the same arrest. Since the state can’t destroy the records of the marijuana case (because he got a time-served conviction or a deferred adjudication), the evading case will stay on that teenager’s record forever as a dismissed case.
The most tragic part of all this is that it can make deferred adjudications worthless. Going back to the example of the teenager, let’s see he got a deferred on the marijuana case. He later applied to get the case nondisclosed, and the case is nondisclosed. Well, the evading case still shows up in a background check as a dismissed case. The dismissal form is going to say something like “dismissed because defendant took deferred adjudication on possession of marijuana case.” If an employer finds that dismissed case, it’s easy for them to get a copy of the dismissal form and, boom, they’ve found out about your “sealed” case. It’s an extra step the employer has to take, but it effectively makes your nondisclosure worthless.
It’s just a nightmare, which is why I always tell my clients never to take a deferred adjudication on one case and a dismissal on another case out of the same arrest.
The last misconception that I sometimes see is that an expunction will get rid of all records of your case everywhere. An expunction only applies to records held by government agencies. Private citizens who remember your case can still talk about it. And news websites that publish articles about your case don’t have to take them down.
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