Gavin Howe
The ability to have a criminal record expunged gives former offenders a second chance at a clean record. However, while expungement hides your criminal record from most people, there are still some people who can see it. This includes law enforcement agencies, which can use expunged records to enhance your punishment in the event of a subsequent offense. In addition, certain government agencies will almost always have access to expunged records, and courts, prosecutors, and other criminal justice agencies can access expunged records for future criminal investigations and charging and sentencing decisions.
| Characteristics | Values |
|---|---|
| Who can view expunged records? | This depends on the state. In most states, private employers, landlords, and others who perform background checks will not find expunged records. However, certain government agencies, courts, law enforcement, prosecutors, and other criminal justice agencies can access expunged records. |
| What are expunged records used for? | Expunged records can be used for criminal investigations, future charging and sentencing decisions, and background screening for positions within the courts, law enforcement, child protection, corrections, public health, elections, and auditing. |
| Can expunged records be used against you? | Yes, expunged records can be used to conduct criminal investigations, enhance future charges, impose and enhance future criminal sentences, impeach a witness, and review future expungement petitions. |
| Can law enforcement see expunged records? | Yes, law enforcement officials, including police, those working in the courts, and state attorneys, can see expunged records. |
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What You'll Learn
Law enforcement access to expunged records varies by state
In most states, individuals who work with vulnerable populations, such as children, the elderly, or individuals with physical or behavioral impairments, need to disclose expunged records when applying for employment. This includes anyone working in schools, childcare facilities, hospitals, clinics, or nursing homes. Courts, prosecutors, and other criminal justice agencies can often use expunged records in later criminal proceedings. For example, in Oklahoma, "expungement" really means "sealed", and law enforcement agencies can still find and inspect your criminal history.
In most states, you are legally permitted to answer "no" when asked about criminal records on employment or rental applications after your record is expunged. However, federal employers and those that run fingerprint background checks can still access expunged records. In Illinois, for example, law enforcement officials, including police, those working in the courts, and state attorneys, will be able to see your sealed criminal records.
It is important to note that even if a record is expunged, it does not mean it is destroyed. Some employers, such as those in the military and certain healthcare fields, will be able to see sealed records. Additionally, prosecutors and judges will have access to your full, un-expunged criminal record and can use this information against you in court.
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Federal agencies can access expunged records
While expungement laws vary by state, federal agencies can access expunged records in some states. In Utah, for example, state law allows both law enforcement agencies and federal authorities to access expunged records. State professional licensing agencies, such as the Board of Education, can also access these records. Similarly, in Nevada, the Nevada Gaming Commission can access expunged records if they obtain a court order.
In some states, federal agencies and law enforcement can access expunged records for future criminal investigations and charging and sentencing decisions. Courts, prosecutors, and other criminal justice agencies can also use expunged records to review future expungement petitions, impeach a witness, and enhance future charges and sentences. Additionally, certain government agencies, such as those involved in law enforcement, criminal justice, and courts, will almost always have access to expunged records.
Furthermore, federal agencies that conduct fingerprint background checks, such as those employing vulnerable individuals like children, the elderly, or disabled people, may also have access to expunged records. In most states, individuals working with vulnerable populations are required to disclose expunged records on employment applications. This includes those working in schools, childcare facilities, hospitals, clinics, or nursing homes.
It is important to note that while expungement can hide your criminal record from public view, it does not provide a complete reset. Prosecutors and judges will still have access to your full, un-expunged criminal record, and this information may be used against you in court. Therefore, it is advisable to be upfront about your past with federal agencies and seek legal guidance when navigating these situations.
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Expunged records are sealed, not destroyed
While expungement laws vary by state, expunged records are generally sealed and hidden from public view, rather than destroyed. Sealing a record blocks access to it by the general public and most background checks. This means that private employers, landlords, and others who perform background checks will not be able to see expunged records. However, certain government and law enforcement agencies will still have access to expunged records.
In most states, individuals seeking employment or licensure in sensitive areas such as law enforcement, child protection, corrections, public health, elections, auditing, or working with vulnerable populations, may be required to disclose expunged records. For example, in Mississippi, individuals must disclose expunged records when applying for a job with a law enforcement agency or requesting a professional license. Similarly, in Utah, law enforcement agencies and federal authorities have access to expunged records.
Courts, prosecutors, and other criminal justice agencies can also access expunged records for future criminal investigations, charging decisions, and sentencing. For instance, if an individual with a sealed DUI record gets another DUI, the prosecutor may use the prior offence to charge them with a second DUI, which could result in increased penalties. Additionally, expunged records can be used to impeach a witness, review future expungement petitions, and enhance future charges and sentences.
It is important to note that some states, like Minnesota, use the term "expungement" to refer to sealing records, while in other states, sealing and expungement are different processes. In Massachusetts, for example, only certain records can be expunged and destroyed, while any person with a criminal record can request to have their record sealed. Therefore, it is advisable to consult with a criminal defense attorney to understand the specific laws and processes in your state.
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Employers requiring fingerprint checks can access expunged records
The visibility of expunged records during fingerprint background checks varies from state to state. Generally, expunged records are removed from state criminal databases, meaning they should not appear in state-level background checks. However, there are exceptions.
In some states, expunged records are completely erased, while others may only seal the record, making it inaccessible to the public but still available to certain government agencies. For example, in Nevada, the expunged record is not able to be viewed by anyone except the Nevada Gaming Commission, and only if they can get a court order. In contrast, in North Carolina, state judges have access to expunged records, and in Mississippi, individuals must disclose expunged records when applying for a job with a law enforcement agency or requesting a professional license.
In most cases, expunged records should not surface during routine fingerprinting checks, especially for everyday matters like employment or background checks. However, certain jobs, licenses, or legal situations may still require access to expunged records. For example, jobs in law enforcement, government, or high-security positions may still consider expunged records to ensure the person is suitable and does not pose any risks. Similarly, when applying for a professional license, such as to become a lawyer or doctor, the licensing board might consider the expunged record.
Additionally, while most private employers will not find expunged records, some employers may still be able to access them depending on the job and the level of background check required. Private background check companies may not always update their records promptly, leading to expunged records appearing in their background checks. Furthermore, the FBI's National Crime Information Center (NCIC) is a federal database that may retain records even after expungement at the state level, resulting in expunged records appearing during background checks that access the NCIC.
Therefore, while expunged records are generally not accessible to employers requiring fingerprint checks, there may be exceptions depending on the state, the type of job, and the databases accessed during the background check.
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Prosecutors and judges can access expunged records
While an expunged record is cleared from public background checks, it is not true that all records of it are gone forever. Certain individuals and organizations can still access expunged records.
In addition, certain government agencies will almost always have access to expunged records. Courts, law enforcement, and other criminal justice agencies can access expunged records for future criminal investigations, sentencing decisions, and charging. For example, Florida gives access to expunged criminal records to the Florida Bar, the Department of Children and Families, the Board of Education, and law enforcement agencies.
The federal government does not have to follow state expungement laws. If a state clears your criminal record, the federal government can still see evidence of the prior offense and use your criminal record against you in deportation proceedings.
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Frequently asked questions
It depends on the state. In some states, law enforcement agencies can access expunged records. In Nevada, for example, the expunged record can only be viewed by the Nevada Gaming Commission with a court order. In North Carolina, state judges can access expunged records. In Utah, law enforcement agencies and federal authorities can access expunged records.
In most states, private employers, landlords, and others who perform background checks will not find expunged records. However, federal employers and those who work with vulnerable people may have access to expunged records.
Yes, in some cases, you may need to disclose your expunged record when applying for jobs, especially government jobs or jobs that require security clearances or contact with vulnerable individuals.
Yes, prosecutors and judges will have access to your full, un-expunged criminal record and can use this information in court.
Yes, Minnesota law allows certain criminal records to be sealed or expunged so they are no longer publicly accessible.
