One way for attorneys to reduce the amount of collateral consequences imposed on their clients as a result of a criminal record is through the expungement process. Expungement representation is a relatively easy avenue for attorneys interested in pro bono service. While there are many rules regarding the expungement process, the filing process is simple.
Evaluation of your client’s criminal record is the first step. An initial investigation can be conducted using the Maryland Judiciary Case Search website (http://casesearch.courts.state.md.us/). The website allows search by name, case type, court system and/or case number. The official criminal record, or Criminal Justice Information Report, should be obtained before filing a petition for expungement and must be ordered by the client at the CJIS central repository (5776 Reisterstown Road, Baltimore, MD). With the information obtained from these two sources, a practitioner should be able to ascertain the extent of a person’s criminal record and evaluate his or her eligibility for expungement.
For each different disposition on a person’s criminal record there is a different treatment by the statute. Three rules restrict the expungement of dispositions:
- Subsequent conviction rule: Any disposition that could otherwise be expunged, cannot be expunged if there is a subsequent guilty conviction or nolo contendre on your client’s record.
- Pending case rule: If the person is currently a defendant in a pending criminal case, certain dispositions cannot be expunged until the case has been resolved.
- Unit rule: If the disposition is part of the same unit of charges as an unexpungeable disposition, then the disposition cannot be expunged.
- Guilty (“G”) dispositions, resulting from a guilty plea or a judge or jury found the person guilty, cannot be expunged.*
- Nolo contendre (“NC”) dispositions, resulting from a no contest plea, cannot be expunged.*
[* Unless the conviction was a “nuisance conviction”. See below.]
Usually Always Expungeable Dispositions
- Dismissal (“DISM”) dispositions: an expungement petition cannot be filed until 3 years after the dismissal was entered.
- Not Guilty (“NG”) dispositions: an expungement petition cannot be filed until 3 years after the Not Guilty was entered, unless the client is willing to waive any claims he or she may have against the state arising from the incident. If the client is willing to waive, the disposition can be expunged immediately.
Conditionally Expungeable Dispositions
The following charges are expungeable subject to all three rules restricting the expungement of dispositions:
- Guilty (“G”) or Nolo Contendre (“NC”) dispositions for a nuisance crime conviction: The follow are considered to be nuisance crimes for purposes of the expungement statute: urinating in public, panhandling, drinking in public, obstructing the free passage of another person in a public place or a public conveyance, sleeping in parking structures, loitering, vagrancy, and riding a transit vehicle without paying.
- An expungement petition cannot be filed until either: (1) the sentence imposed on the defendant has been completed, including probation periods, or (2) three years after the conviction date, whichever is longer.
- If the client has good cause (a very compelling reason why he or she should be able to expunge the disposition sooner) and is willing to waive any claims that they may have against the state arising from the incident, the disposition can be expunged earlier than the statutory minimum.
- Probation Before Judgment (“PBJ”) dispositions: an expungement petition cannot be filed until either: (1) the probation period has ended, or (2) three years after the PBJ was granted, whichever is longer.
- If the client has good cause and is willing to waive any claims that they may have against the state arising from the incident, the disposition can be expunged earlier than the statutory minimum.
- A PBJ received for driving under the influence (a “DUI”) cannot be expunged.
- Stet Docket (“STET”) dispositions: an expungement petition cannot be filed until three years after the STET was entered.
- If the client has good cause, the disposition can be expunged earlier than the statutory minimum.
- Nolle Prosequi (“NP”) dispositions: an expungement petition cannot be filed until 3 years after the NP was entered
- After evaluation of a client’s record, individual petitions for each unit of charges should be filed in the court the case was last heard. The state’s attorney has 30 days to object to the petition. Contested petitions are then docketed for hearing within 60 days. The petitions are not usually contested unless the State’s Attorney has a legal basis to do so (i.e., the defendant has subsequently been convicted of a criminal offense or has a pending case). If not contested, a judge will issue an expungement order to the police department and court clerk. Paperwork verifying compliance with the expungement order will be sent by the police department and court clerk within 90 days. The significance of expungement work is to provide a way forward for those with criminal records.
Editor’s Note: For Both Dismissal (DISM) and Not Guilty (NG) Dispositions, an expungement is immediately available, if the client is willing to sign a general waiver, not just for Not Guilty dispositions as the article could be read. Additionally, Nolle Prosequi (NP) dispositions can be immediately expunged, if the client is willing to sign a general waiver. §10-105(c)(1) of the MD Criminal Procedure statute.
Blake Baron is a third-year law student at the University of Maryland. His concentration is in environmental and energy law.