LEGAL BRIEFS

Man may be able to clear record of minor legal offense

4/24/2011

Dear Dale: My brother's school conducted a background check on him because he's in their pharmacy program. The check turned up a public nuisance charge from 15 years ago when he was an undergrad at Ohio University. He remembers paying a ticket, but he never went to court. Can he get his record sealed?

Sealing a criminal record makes a lot of sense when you're getting ready to apply for a job. If it's done properly, the record is closed forever except to law enforcement officers and the courts. For instance, a prospective employer wouldn't find the conviction by searching a clerk of court's Web site or by asking for it in person at the clerk's office.

However, not everyone with a record can get it sealed. I've had a lot of people ask me whether they can get their record expunged, and I often have to break the bad news that they aren't eligible under state law.

Generally, people with more than one criminal conviction are not eligible to have their records sealed. It's possible if two or three charges were part of the same indictment or a few charges happened in close proximity for a court to treat them as one conviction for purposes of sealing the record. But if you have multiple convictions over a period of a few years, you're usually cooked.

People who commit certain crimes also aren't eligible to have their records sealed, even if they only have one conviction. For example, those who commit various sex-related crimes or certain crimes of violence may not be eligible.

The law seems to be designed to give a break to people who made a mistake, but have stayed out of trouble for a period of time. But, some crimes can't -- and shouldn't -- be wiped off the books.

In your brother's case, getting his record sealed should not be difficult because it's such a minor charge. Misdemeanor convictions are eligible to be sealed one year after the person's conviction, release from jail, or discharge from probation, whichever comes later. Felons have to wait three years from final discharge before applying.

Along with the application or motion, the person will have to pay a $50 fee, which is partly used so the state can run a records check to determine eligibility. I know this will come as a big surprise to you, but clients sometimes lie to their attorneys that they only have one conviction. The state doesn't just take your word for it.

If eligible, the judge who handled the case will determine whether the applicant's interests in sealing the record are outweighed by the government's interest in maintaining the record.

The court also will try to determine if the applicant has been rehabilitated and will take into consideration any objections offered by the prosecutor.

So, it's definitely worth your brother's time and money to try to seal his record. Given how long ago it happened and minor nature of the offense, I can't imagine a judge not sealing the record.

Dale Emch practices law at the Dale Emch Law Office, LLC, in Toledo. In his column, he will discuss general legal principles and answer readers' questions. Neither Mr. Emch nor The Blade present or intend his column to be taken as legal advice. Readers seeking legal advice should consult with an attorney. Readers may send their questions to 615 Adams St. Toledo, OH 43604 or dale@daleemch.com. His Web site is www.daleemch.com.