Shannon Dorvall is Imhoff & Associates’ general counsel. She shares her expertise in expungement and its uses with this article.
What is the difference between ‘expungement and’sealing’ or ‘confidentiality?
Three legally distinct ways to deal with criminal records are expungement, sealing, and confidentiality.
- Expunction refers to the act of destroying or eliminating records. The goal of expungement is to make it seem as though the records have never existed. This is the goal. However, the results can vary depending on where expungement is requested. Sometimes, the term “expungement” is used when the process is actually called “sealing”, whereas true expungement involves the destruction of the record. In practice, Kentucky uses sealing and expungement interchangeably. Idaho, for example, allows the simultaneous use of both terms in the same process.
- Sealing makes records inaccessible to the public, but allows certain agencies and individuals access to records.
- Confidentiality laws only apply to juvenile records. They require that all states keep juvenile records confidential and allow access to schools, crime victims and the media in certain instances.
Please explain the basic concept behind expungement. What does expungement mean and who it is for?
An expungement can be described as a “reset” or do-over. This is for minor crimes like shoplifting or minor drug offenses. Humans make mistakes. People should not be defined by their mistakes. You can start over in your job search and other aspects of your life with expungements.
Many people are seeking expungements because they were wrongly convicted in their 20s and 30s. They have since moved on, often becoming a completely new person with a new life. These small convictions could make a difference in whether you are offered a job or not in a particular field. It is not the goal to erase someone’s history, but to give them another chance.
Most states allow some form of expungement for misdemeanours, and more than half allow for expungement of certain felonies. Federal courts are not authorized to expunge records from a federal conviction and there is no general federal expungement statute.
Expunctees are usually granted in states that have them. However, they must show their merits. An expungement cannot be granted automatically. This can be demonstrated by a clean record, volunteerism, and maintaining gainful employment.
Humans make mistakes. People should not be defined by their mistakes.
California uses the term “dismissal” to refer to the Court’s decision to reverse a guilty plea and enter a dismissal. It appears that the case was not prosecuted. This does not change the arrest record. An earlier requirement to seal an arrest record was called a finding or ‘factual innocence’. This standard was almost impossible as the person had to prove they were not guilty of the crime. It was often necessary to find out if there was a crime or determine the true culprit, with some guilt. This standard was not met by many people.
The law now allows sealing and destroying arrest records in more cases. This gives more people a chance to get a fresh start.
Only full and unconditional pardons are allowed to avoid deportation for criminal convictions. Expungements, sealing and other mechanisms are not recognized unless there were substantive structural or procedural errors during the conviction process which led to the postconviction relief.
What are the most common steps in expungement proceedings?
Each state is different, but most require that the person seeking expungement start the proceedings. The process cannot be initiated until a sentence has been completed.
The jurisdiction will determine the documents and information required to complete the petition. You may need as much documentation as possible, such as arrest records, case numbers and judgments. To ensure that the form is accurate, it is important to have as much documentation as possible.
Once the application has been filed, applicants must be ready to pay the required filing fee. To ensure that their application is not rejected or delayed, applicants should make sure they have reviewed all fees. If applicable, some courts may charge a filing fee for each offence that a petitioner applies for.
A hearing may be required in certain states for expungement. The court will determine a date. The court may set a hearing anywhere from 30 days up to several months depending on the scheduling.
It is important to keep in mind that records may not be destroyed immediately by law enforcement agencies.
You can start over in your job search and other aspects of your life with expungements.
Is this different for juvenile records?
It is common to believe that juvenile records automatically become sealed when a juvenile reaches 18. This law is subject to change from one state to the next. Many states, particularly those involving felonies, do not allow complete expungement of juvenile records.
The process may not be automatic for a few states. The request must be made by either the prosecution or probation. The unique nature of juvenile records, which are confidential even though the person is minor, has been recognized by the states. These files can include more than just criminal proceedings. They also contain information such as mental health records, school records and grades, parental history, abuse history, and many other intimate details. Although there is an effort to automate the process and eliminate fees, it is not yet in place.
What California laws govern how these proceedings are conducted and which offences can be expunged?
California is leading the way in automatic record sealing. The court record of convictions that were set aside under certain diversion or deferred entry to judgment code sections, where the person has completed their probation terms, will be automatically sealed as per the “Clean Slate Act” described below. This Act prohibits the state records repository from responding to public requests for information regarding convictions that have been rescinded in certain circumstances.
California will offer automatic record relief for all felony convictions beginning 1 January 2023. This applies six years from the date of arrest. California law currently exempts felony arrests, unless the charge is severe enough to result in imprisonment at a state prison.
Other felonies that are not convicted of felony offenses can still be eligible for automatic relief within three years, unless they were punishable with eight years or more imprisonment in a county prison.
This law expands the eligibility for automatic relief for persons who are convicted of a crime and sentenced to probation after January 1, 2005, if they have violated any terms of supervision. A probation violation used to prohibit relief. Relief is not available for certain felonies or registrable sex offenses.
What are the limits on what an expungement order is allowed to achieve?
An expunged offense can still be used to increase sentences or charges in most cases, unless there are specific exceptions in state laws. If a person seeks licensure in certain areas, such as teaching, or security clearance, they will need to disclose the expunged conviction.
The expungement orders in most cases do not automatically restore firearms rights.
California is leading the way in automatic record sealing.
18 U.S.C. 18 U.S.C. Federal law SS922(g),(9) also prohibits domestic violence convictions from granting firearms rights.
People with state convictions can avoid the federal bars in SSSS922(g(1) and (g(9) if they have been pardoned or set aside, or if they have restored their civil rights, unless the relief they obtained “expressly” that they cannot possessfirearms. See U.S.C. SSSS 921(a),(20), (a),(33)(ii). However, automatic restoration of civil rights may restore firearms possession rights.
Circuits are still divided on how to interpret the ambiguous language in SS921(a)(20). What does “free from state firearms disabilities” mean in order to be eligible for the relief provided by SSSS921(a),(20) or (a)(3)? These federal laws are too broad and the meaning of “expungement” is unclear. It may apply to records that have been sealed, but not destroyed.
How can the effectiveness of an expungement order be compromised by modern media? Is there a way to reduce this?
Some states have information sharing agreements with private companies that allow them to sell records online, including juvenile records, for a small fee. Online record checking companies often use outdated information from public courts dockets or arrest or inmate reports without much concern about the accuracy of the information.
These initial reports are not always accurate, but they can be difficult to rectify. Online services may charge a fee to’research’ the correction request, but they are unlikely to make it right without a legal action. To strengthen their case, clients and counsel should keep copies of orders granting sealing and expungement.
What can legal counsel do to help ensure that an expungement request has the best chance of success?
Clients can get assistance from counsel in gathering information and presenting their request in the best possible light. If the court has discretion, the prosecutors will be notified and given the opportunity to object to the motions. A skilled advocate can help clients in any situation that involves courts or prosecutors.
What legislative trends do you see in this area?
Ban the Box
The legislation ‘Banthebox’ seeks to eliminate questions about criminal history from job applications. It aims to remove the box that asks applicants if they have been convicted of any crime. California is one of 31 states that have adopted some form fair chance or ban the box legislation. This usually requires that a conditional job offer be made before asking about previous convictions. Private employers are required by 11 states to remove any questions about criminal convictions from job applications.
While “Ban the Box” is currently focusing on employment laws and housing availability, criminal records can have a negative impact on state or federal licensure, education opportunities, and housing availability. Forcing someone to live with a scarlet conviction is not a way to move forward.
Federal employers also have to comply with ‘ban-the-box’ rules. This prohibits federal employers from asking about convictions, unless a conditional job offer has been made. The ‘ban the boxes’ rules do not apply to jobs that involve security, transport, or similar tasks.
Clients are best served when they have an experienced advocate who can help them.
H.R. 6667
H.R. H.R. 6667, also known as ‘The Fresh Start Act of 2022’ is a bill that Congress is considering to allow the expungement of certain federal non-violent offenses. The law, if passed, would allow automatic exoneration for certain federal offenses seven years after the sentence has been completed. One year after the sentence is finished, discretionary relief would be granted. Although the bill is unlikely to be passed due to the new Congress that will form in January it is a significant step in the right direction. If someone is under 21, federal law regarding expungement does not apply to the first possession case.
Do you have any insight that you can share from your work on expungement?
The courts and prosecutors will not grant the person a new start. Even convictions that should have been sealed automatically require constant monitoring to ensure that the person receives the relief they need at both the state and local level. These cases are where I have to fight the hardest. It is not the local prosecutor who causes me the most trouble, but the state Department of Justice which fails to recognize the relief.
About Shannon Dorvall
Tell us about your journey to law.
I was one of those people who wanted to be an attorney but didn’t know what it was. My family didn’t have any attorneys, but my aunt was an experienced barber who cut hair for local lawyers. I used to spend hours in her shop talking with different attorneys about the law, how they got into it and their favorite things about the job. I would listen to them talk about a major trial or a difficult-fought motion, and be completely captivated. I was reminded of street brawlers when the litigators were characters.
I won my first ‘trial’ in eighth grade. As part of an American History project, we were given roles that required us to put historical actions on trial before a jury. The jury would decide whether the actions were crimes. I was assigned the role as defense attorney. Local attorney offered to help with the mock trial. Our teacher was upset that I had lost, but my side won. He was calmed down by the attorney who explained that the teacher should be happy to see the birth of a future lawyer. I was hooked.
Although not everyone can be Atticus, I was determined to make it. I applied for law school.
Why did you choose to work as a defense attorney instead of in criminal law?
I went to law school at University of Montana School of Law. Due to my eighth grade History project, and the OJ Simpson trial in high school live, I was attracted to criminal and Constitutional law classes. Around the time Crawford V Washington was decided, I did a year of clinical work with the Federal Defenders of Montana. It was inspirational to watch the relentless dedication of the lawyers in the office go through every file they had and determine if anyone may be eligible for habeas relief. I lost track of how many habeas that I wrote in that year.
Imhoff & Associates has been my criminal law practice since I was a teenager in California. Recently, I was promoted to General Counsel at our Firm. This gives me more time for mentoring interns and young lawyers.
Would you be willing to share any tips or advice with aspiring defense attorneys considering a career in law?
Anyone who is willing to help you will teach you everything. Criminal defense can benefit from many aspects of your life. I didn’t realize how much science and math I would need in order to read police reports, DNA profiles, and other aspects of discovery. Open to hearing all sides of an argument. It is not fun to be blindsided, but it can also lead to some great aspects of the job. Every intern hears the same thing. Don’t assume that you know everything. You can do the work to find out.
Shannon Dorvall, General Counsel
12424 Wilshire Blvd, Suite 700, Los Angeles, CA 90025, USA
Shannon Dorvall, an experienced general counsel, has left behind a long history as a criminal defense trial attorney. Shannon graduated from The University of Montana School of Law. She is proficient in trial practice, post-conviction appellate, and habeas work. She is licensed to practice law in all California state courts and federal courts, as well as the Supreme Court of the United States.
Imhoff & Associatesis a leading criminal defense law firm in the United States. They have a strong presence both in the District of Columbia, Puerto Rico and most states. The firm’s team is able to handle a variety of criminal cases including DUI/DWI and white collar crime. It also helps with matters such as bail reduction, parole violations, parole violations, and criminal appeals.