For many people, there is one question on job applications that fills them with dread: Have you ever been arrested?
Even if they were never charged, charges were dropped or they were acquitted, those people must explain the circumstances, possibly lessening their chances of being hired. Now a state law that went into effect this month is offering many of them a chance to get their records expunged – or erased.
“Having that small difference can make a huge difference in whether someone is employed or not,” says Steve Shaw, a Birmingham attorney who has been talking with a number of people who are interested in applying for expungement.
He says the law could be very helpful for a variety of people, including those who were charged with possession of alcohol as a minor but granted youthful offender status, those who successfully completed a drug court or other diversion program and others who were wrongly accused of non-violent crimes.
“It allows someone who has had an arrest several years ago to get that wiped off because they have had good behavior since,” Shaw says. “It puts these people on equal footing” with those who have never been arrested.
The process sounds – but may not be – simple. Individuals may file a petition with the criminal circuit court clerk’s office in the jurisdiction where they were arrested or charged and must pay a $300 administrative fee to begin the process. Court costs also can be assessed.
“We’re afraid that a lot of people don’t understand the law. People think it’s going to be a slam dunk, no problem at all,” says Eric Locke, a project officer with the Alabama Administrative Office of Courts.
For example, applicants must go to the court jurisdiction where they were arrested or charged and get a certified copy of their records, including the dismissal of charges or acquittal. “You’re going to have to come with the petition in hand and have your paperwork,” he says. “We think there are going to be some hiccups there where people don’t understand it.”
For example, a person who was arrested and charged in a municipal court would have to get records from that court and then take the records to the circuit court clerk’s office in the jurisdiction that covers that municipality. In Jefferson County, petitioners have to be careful to go to the Bessemer Cutoff if the charges were filed in that part of the circuit.
Locke says some attorneys who are not yet familiar with the new law may think expungements will be automatic. “You have to have your ducks in a row,” he says.
Rob Drake, Jefferson County deputy assistant district attorney over the civil division, says he has received a number of phone calls from people who want information on how to file for an expungement. He is unable to give legal advice and has been referring callers to the Birmingham Bar Association. “It’s not going to be easy for the layperson to just go out and have the contacts and get the documents they need to file a proper expungement,” he says.
Shaw believes people need to at least talk to an attorney. “I do think it is best for someone to consult with an attorney first to see if they are eligible for expungement of their records,” he says.
An Internet search on Alabama’s record expungement law showed a number of law firms across the state that are seeking clients, including one in Huntsville offering to “zap” records.
The law specifies that a person who has been charged with a misdemeanor, traffic violation or a municipal ordinance violation may qualify if the charge was dismissed with prejudice, when the charge was no billed by a grand jury (meaning that an indictment was not returned), when the person was found not guilty or when the charge was dismissed without prejudice more than two years ago and has not been refiled. If the charge was dismissed without prejudice, the person must not have been convicted of any violation other than a minor traffic violation during the previous two years.
The law also allows people who were arrested for or charged with felonies to petition for expungement, but the law does not apply to violent crimes. The rules are the same as with misdemeanors except that at least five years must have passed since a charge was dismissed without prejudice.
The law also allows defendants whose charges were dismissed after successful completion of a court-approved deferred prosecution program to receive an expungement after a year has passed.
Expungement will not be automatic. Petitions will be reviewed by district attorney’s offices, and if the district attorney’s office objects to the expungement, the court will set a hearing. District attorneys have 45 days to object.
“We review according to the legislative act and we object when necessary,” Drake says.
“It becomes a discretionary matter with the court,” Shaw says. “It’s not an absolute right to expungement.”
The law states, “The court shall grant the petition if it is reasonably satisfied from the evidence that the petitioner has complied with and satisfied the requirements of this chapter. The court shall have discretion over the number of cases that may be expunged pursuant to this chapter after the first case is expunged. “
If the district attorney does not object, the law says the court can grant an expungement without holding a hearing.
When a judge grants an expungement, the order will require officials to remove records at all levels, including federal databases.
Petitioners should not expect their applications to move quickly through the courts. “I think it’s going to take several months. They are anticipating a lot of cases to be filed,” Shaw says.
Some of those cases will be Shaw’s. “I have been talking with people about the various aspects and whether it is right for them. I have several who are planning to file,” he says.
Locke says state officials are concerned about local courts being overwhelmed. “The circuit clerk’s offices are not equipped manpower-wise to handle this,” he says.
The Administrative Office of Courts recently sent information to circuit clerk’s offices across the state explaining the law and including the codified law and petition form to be used.
“We definitely want the public to use this,” Locke says “It’s going to help a lot of people get dismissals off their records that are keeping them from being employed.”
But, he says, “Defendants are thinking and even attorneys are preaching that this is going to be a panacea. … If you don’t do it right, it’s going to take some time for the judge to come back and say the documentation is incomplete.”