Does an Expunged Criminal Record Still Follow You?

Some states allow certain criminal convictions to be expunged under certain circumstances. Each state has its own rules regarding when, and if, an expungement will be allowed and most limit the types of criminal convictions that will be eligible for expunging. For those convicted criminals who are eligible to have their criminal records expunged the advantages can be significant. In most states, an expungement allows a once convicted criminal to truthfully tell employers that he or she does not have a criminal record and even to testify under oath that he or she has not been previously convicted of a crime. However, despite these advantages, there remain important circumstances when an expungement is not enough to make it as if a crime never occurred.

Specifically, an expunged crime will continue to follow a convicted criminal in the following ways:

  • If You are Accused of or Convicted of a Subsequent Crime: many states will allow previous criminal convictions that have been expunged to be used in the prosecution or sentencing of a subsequent crime. For example, in some states an expunged conviction can be used during prosecution of the crime as evidence of prior behavior or a pattern of criminal behavior. Similarly, many states allow evidence of expunged convictions to be used in sentencing of subsequent crimes. This is important because most states have lesser penalties or sentences for first time criminals and enhanced penalties for people who have been previously convicted.
  • If You Seek Certain Licenses or Employment: certain government agencies may be able to access information about expunged convictions in some states. These state legislatures have reasoned that the public safety or the public good in allowing these agencies to learn about the expungement outweigh the burden imposed on the person whose criminal record was expunged. For example, Florida allows information about expunged criminal records to be disclosed to the Florida Bar, the Department of Children and Families, the Board of Education and law enforcement agencies.
  • If You Face Immigration or Deportation Hearings: convicted criminals who have had their records expunged may also find that their records come into play again if they face immigration or deportation proceedings. People who are not United States Citizens – even those who are in this country legally – may be deported for a criminal offense. Additionally, the federal government, which is responsible for conducting deportation hearings and hearing other immigration matters, is not bound to honor state laws regarding expunged criminal records and may decide to deport a person who is not a U.S. citizen based on an expunged criminal record.

While expunging often means erasing or making something as if it never happened – most criminal records are never truly expunged in the United States. While you may truthfully testify under oath that you have never been convicted of a crime when your record has in fact been expunged, the government still maintains evidence of your conviction and may use it against you in the narrow and specific circumstances allowed by state law, such as the situations described above.

The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.

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