Sealing and Expunging a Florida Criminal Record

Sealing and Expunging a Florida Criminal Record is a complex matter. Not just anyone may qualify. The law puts up many barriers. What’s the difference between sealing and expunging? Sealing, as the term implies, means closing the file from public view while expunging means actually destroying or obliterating it.

Threshold eligibility requirements to seal or expunge a criminal record:

• No “adjudication of guilt” (or delinquency in the case of a juvenile charge), meaning a conviction in the case to be sealed or expunged or any prior case as opposed to a “withhold of adjudication” meaning no conviction. This is regardless of whether the plea was “guilty” or “no contest”, which have the same effect for this area of the law.
• If there was a “withhold of adjudication”, the offense was not one greater than a third degree felony or third degree felony or misdemeanor involving any sex offense, obscenity, pornography, intentional child or elderly abuse or exploitation, or telecommunications fraud.
• No prior sealing or expunction.
• If more than one charge, that they arose from the same incident.
• Court supervision or sentence has been completed.

If the charge in question was never filed or dropped, one may seek to expunge that record immediately. If it was resolved with a plea and a “withhold”, ten years must pass before the record may be expunged.

While a sealed or expunged record generally allows a person to “lawfully deny or fail to acknowledge” the record without it being considered deceitful or an act of perjury, one still must disclose it in certain circumstances:

• An applicant for law or law enforcement related employment such as any criminal justice agency, seaport and candidates for the Florida Bar;
• An applicant for employment, licensing or contracting (and any contractor’s employee) with the Department of Children and Families, the Department of Juvenile Justice, the Department of Education or other school related entity and child care licensees - in other words, anyone “in a sensitive position having direct contact with children, the developmentally disabled, the aged, or the elderly”.

As you can see, sealing and expunging doesn’t mean closed from all eyes. Indeed, the above entities are required by law to access sealed records, adult and juvenile. Additionally, a prosecutor may reveal the prior record to the court in a subsequent prosecution.

A Quick Primer if You're Stopped for DUI

• You don’t have to say anything to the officer about where you’ve been or what you’ve consumed and they don’t have to read you your “Miranda” rights either for preliminary, roadside questioning when you are first stopped. Just be polite.
• You don’t have to perform any field sobriety “tasks” although that can be used against you, meaning a jury can be told that fact to imply guilt. These may be videotaped.
  
• Nor do you have to give a breath or urine test although that also can be used against you AND this “refusal” to provide a test will result in a DMV suspension for one year (or 18 months if it’s your second refusal, PLUS it’s a misdemeanor if its your second refusal).
• If you “blow” over the limit (.08 or more blood alcohol level or “B.A.L.”) the DMV suspension is for 6 months. Urine testing typically is for low blows to see if drugs are in your system. Even lawfully prescribed or over the counter medications can cause unlawful impairment for DUI.
  
• DMV suspensions begin immediately. Your ticket is a temporary 10 day permit. You must submit a challenge to these DMV suspensions within that time. That will “buy” you an extended driving permit until the administrative review of the suspension is complete, about 5 weeks. If successful, your license is restored pending court action. If not, there’s a 90 day “no drive” period for a first refusal and 30 days on the B.A.L. suspension. After that, you can apply for a hardship permit if you’ve signed up for DUI school and otherwise are qualified.
• If stopped, consider carefully whether to “help them” collect evidence against you vs. the consequences for not doing so.
• When in doubt about your sobriety, don’t drive. Take a cab!