As a Nebraska drug attorney, many of my clients ask me about what the state requires to get a drug offense off of their record. Whether simply arrested or actually convicted, a drug offense on your criminal record can create some very difficult consequences for you or your family in the long run. Employers and landlords, for instance, commonly ask their applicants whether they have ever been convicted or arrested for a criminal offense. Many employers may not hire and landlords might not rent to people who answer "yes" to these questions. The good news is that, in some cases, you may be able to get an arrest or conviction expunged from your record.
What is Expungement?
Expungement involves the destruction or sealing of a criminal record after the expiration of a certain time period or when an arrest is unlawful or does not result in a conviction. Initiated through a court process, the result of expungement is that a person’s criminal history is, for most purposes, erased. Virtually every state has enacted laws that allow people to expunge arrests and convictions from their records. Though the details can vary from one state to the next, most states' laws provide that once an arrest or conviction has been expunged, it need not be disclosed, including to potential employers or landlords. Especially in terms of convictions, most states require that the offense is a first-time offense and most states require a waiting period.
Why Expungement is Important?
Expunging an offense from your record can bring many benefits, like when seeking a job, housing, or a professional license. An applicant who has his or her criminal record sealed or destroyed can, in some states, legally assert that he or she has no criminal history. For example, assume that Joe was convicted of petty theft and later had the conviction expunged. If Joe applies for a job and the application asks, "Have you ever been convicted of a criminal offense?" Joe can honestly answer, "No." Expungement has become increasingly important in the internet-age, given the ease of access to public information.
Are You Eligible?
There are many determining factors for expungement, including whether the conviction was a misdemeanor or a felony, or whether the offender was an adult or a juvenile. The degree of an offender’s sentence is also taken into account.
It should also be noted that not all states have the same expungement laws. In some states, expungement does not literally erase a criminal record and disclosure of the criminal conviction is required in some circumstances. Moreover, the expungement may be used to enhance a sentence if the person is subsequently convicted of another crime.
The following are criteria wherein your criminal record may be cleared:
- If on probation, you can clear your record if:
- You have finished your probation
- You have followed all court orders
- And there are no new charges against you
- If not on probation, you can clear your record if:
- One year has passed since your judgment
- You have obeyed all laws subsequent to your judgment
- And there are no new charges against you
- However, certain crimes may never be cleared from you record, such as:
- Most traffic infractions
- Most sex related crimes
The Process of Expungement
Under most circumstances, a person has to apply for expungement. Your arrest and conviction records will not be expunged automatically. You need to follow the local or state procedural rules, which more often than not requires that you pay a fee. In many cases, if convicted of a crime, there is a waiting period before expungement may be granted; although, if acquitted (or found not guilty) of a charge, the majority of states grant the right to have the records sealed immediately.
In Nebraska, you do have a waiting period before applying for an expungement order. If the prosecuting attorney declined to present charges, you must wait one year after the date of arrest. If, however, your charges were dismissed after completion of a diversionary program, your waiting period is extended to two years from your arrest date. If your case was dismissed on motion by the prosecuting attorney or after a hearing that was not the subject of a pending appeal, you must wait three years from your arrest date.
Expunging or Sealing an Criminal Record in Nebraska
Unfortunately, Nebraska has very strict and limiting rules when it comes to expungement. The state only allows the expungement of arrest records if your criminal charges were dismissed or the prosecutor declined to file any, or if your charges were dismissed following completion of a diversion program. The law in Nebraska does not permit expungement or sealing of any record of misdemeanor or felony convictions.
In some circumstances, you may also petition the court for expungement of your arrest record if you can demonstrate convincing evidence that your arrest was unlawful or made in error by the arresting officer or agency. If your conviction was reversed, you can petition the court to expunge your DNA record from the state’s DNA database.
Juvenile records are sealed as a matter of law in most cases, and no employer may inquire if you have had a juvenile record and your record should not be accessible following a criminal background check. If the court determines you were not satisfactorily rehabilitated or if you are charged at age 17 with a misdemeanor or infraction possession of marijuana, the court may not seal your record and you will have to apply to the court.
Alternative Options
If there is no other option, you could apply for a pardon. The only catch is that a pardon will not expunge or seal your record, but will restore all your civil rights, which includes the right to hold certain licenses, the right to possess firearms, and the right to be a juror and to hold public office.
Before you can apply for a pardon before the Board of Pardons, which makes the recommendation to the governor, a person with a misdemeanor conviction must wait three years, and for felonies, the waiting period is 10 years after the completion of your sentencing and any conditions imposed.
Expunging Drug Crimes
In many jurisdictions, people who have been arrested or convicted for drug crimes may have an easier path to expungement. If arrested for drug offenses, you may be eligible for diversion programs. These programs typically provide for the expungement of records following the satisfactory completion of a program.
Contact a Nebraska Drug Attorney for Expungement
Many have easy access to criminal records since they are easy to find. Having a criminal record may affect your ability to find a job since many places conduct criminal background checks. It will also be harder to rent apartments since many tenants go through a background investigation. The more time that has passed since the conviction, in addition to the presentation of rehabilitation and credible sources that show good character, the more likely it is to convince a judge to grant a record clearance.
If you have questions about the status of your criminal record, or want to attempt to have your record cleared, the advice of a criminal defense attorney or an experienced expungement lawyer can be extremely helpful. Leading Nebraksa drug attorney Daniel Stockmann has established a strong reputation throughout his 15 year criminal defense career as a lawyer who possesses vast knowledge of your constitutional rights, and how to use that knowledge to bring about an easy expungement.
