Pennsylvania Expungements

 Since 9/11, many employers are routinely running record checks on current employees and every new candidate for employment.  Many people are not being hired because of some youthful indiscretion that they may have even forgotten about themselves:  e.g:,  retail theft, disorderly conduct, underage drinking, carrying an open container of alcohol, and so on.  Each of the fifty states has its own rules regarding expungements, sealing of records, and pardons.  Pennsylvania is one of the worst states when it comes to getting your record cleared.  We have no provision for the sealing of records.

There are two new developments, one is act 134 of 2008 and the other is House Bill 264 which is gurgling through the legislature.

Until 2008, only non-convictions could be expunged without regard to the severity of the offense or the punishment.  Non-convictions include verdict of not guilty; dismissal; withdrawal of charges, or nolle prosequi; Accelerated Rehabilitative Disposition; or Probation Without Verdict pursuant to the Controlled Substances Act.

The passage of Act 134 now allows for the expungement of a conviction for a Summary offense provided the defendant has been free of arrest or prosecution for five (5) years following the conviction for that offense.  Prior to submitting your petition for expungement for a Summary offense, the following documents must be obtained:

1. A current certified record indicating that the petitioner has not had any arrests, charges or convictions for a minimum of five (5) years since the conviction of the Summary offense for which the expungement is requested.  This record check is performed by the Pennsylvania State Police.  For further information on obtaining this information, please reference their website: How to Obtain a Criminal History Record
2. A certified record indicating that the petitioner has fully paid all fines, costs and restitution for all convictions of record.

For any criminal charge other than a Summary offense that resulted in a conviction, such as a guilty plea, verdict of guilty, or a plea of nolo contendere, an expungement may only be granted by the court if the defendant first receives a pardon from the Governor of Pennsylvania.

House Bill 264, as amended by A02312, further provides for expungements of criminal history records for certain misdemeanor offenses under Title 18 (Crimes and Offenses). If an individual seeks an expungement for a misdemeanor of the third degree, he must be free of arrest or prosecution following final release from confinement or supervision for seven (7) years. If an individual seeks an expungement for a misdemeanor of the second degree, he must be free of arrest or prosecution following final release from confinement or supervision for 10 years.

Expungements of criminal history records for second and third degree misdemeanors shall not apply in the following circumstances:
   -- An offense punishable by imprisonment of more than two years.
   --  Four or more offenses punishable by imprisonment of one or more years
   -- A violation relating to simple assault.
   --  An offense classified as a misdemeanor of the second degree committed when the individual was at least 25 years of age.
   -- A violation relating to indecent assault.
   -- A violation relating to sexual intercourse with an animal.
   -- A violation relating to cruelty to animals.
   --   A violation of any provision relating to firearms and dangerous articles.
   -- Any offense where an individual is required to register under Megan's Law.
   --   A violation relating to Driving after imbibing or utilizing drugs.
   -- A violation relating to offenses involving danger to the person if the victim was a law enforcement officer engaged in the performance of duty and the perpetrator knew the victim was a law enforcement officer at the time of the offense.

Expungements provided for under House bill 264 are at the discretion of the court and the court shall consider the following when determining whether to grant a petition for expungement:
   -- The nature of the offense.
   -- The nature and the disposition of any related charges.
   -- The impact of the offense upon any victims of the offense.
   -- Any reasons the Commonwealth may give for wishing to retain the records.
   -- The petitioner's age, criminal record, and employment history.
   --   The length of time that has elapsed between the arrest and the petition to expunge.
   -- The specific adverse consequences the petitioner may endure should the expungement be denied.

House Bill 264 also increases the number of days in which the court shall give notice to district attorneys of the county where the original charge was filed of any applications for expungement.  Currently, the court has 10 days to give notice and this legislation increases that time frame to 30 days.



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