New “Expungment” Statute

While the legislature has been unable to clear out our growing prison population with recent legislation, one area of criminal law that it has been successful in overhauling is the sealing of conviction requirements. The net effect of recent revisions to the law has been to expand the group of persons eligible to have their record sealed.

As an aside, because I see this often, I would like to educate some folks about the appropriate language here: while most people refer to having their record “expunged,” that is inaccurate. The vast majority of defendants have their record “sealed.” What is the difference? When a conviction is sealed, all records related to the case are placed in a sealed envelop and stored away somewhere in the bowels of the court and treated as if they don’t exist. There is no longer an official public record of the case; it is as if the defendant was never charged, never appeared in court, never convicted and never punished. The case didn’t happen. The defendant can then lawfully and accurately say that he has never been convicted of a crime – or at least the sealed crime. There are very limited ways in which the sealed conviction can ever come to light in the future.

In contrast, when a record is actually “expunged,” the documents are destroyed – shredded, set on fire, eaten by someone, whatever. The documents literally can never be retrieved because they physically disappear from the earth forever. Very few circumstances allow a conviction to be expunged (e.g., convictions for prostitution when the defendant was a victim of human trafficking or juvenile adjudications of delinquency).

Regardless, the sealing of a conviction does the trick for most defendants when they go applying for jobs, and our policymakers have now made it even easier obtain that relief. On September 19, 2014, SB 143 will go into effect and it slightly revises R.C. 2953.31, the section that defines whom is an “eligible offender” for purposes of the sealing statute. The new definition will allow someone convicted of 2 misdemeanor offenses to have both convictions sealed, even if the convictions were for the same offense.

Under prior law, a defendant could have up to two separate misdemeanor convictions sealed as long as they were not for the same offense. In other words, if the defendant had a possession of marijuana conviction and a separate theft conviction, he was eligible to seal both cases so long as he met all the other criteria. But, if that same defendant had two separate theft convictions, he was ineligible to have them sealed. Hey, if you don’t learn your lesson after the first conviction, that’s on you, Mr. Defendant. 

As of September 19, 2014, this limitation on eligibility is eliminated.  Just something to keep in mind.

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