In one of my blog posts in November I discussed my very first expungement case. I explained that Kentucky allows a person to expunge certain criminal offenses (such as DUIs) and other misdemeanors if no new ones occur within a span of five years.
In this post, I will explain what an expungement is, clarify what sort of offenses cannot be expunged, how can you utilize expungements for your benefit, and hwy it is better to proceed with an attorney by your side rather than pursue the matter on your own.
Let’s start at the beginning. What is an expungement? Very simply, if you were charged with a crime or a certain traffic offense, it will appear on your permanent criminal record. It does not matter if the charges were later dropped, dismissed, or if you were convicted. Nor does it matter the amount of time that has passed since the offense has occurred.
So what does an expungement do for you? It is a legal mechanism that allows you to utilize the same court’s power that put the charges on your record to get them removed from it. It is a petition to the court to have the charges “sealed” or “destroyed” (regardless of outcome) from your permanent criminal record to avoid being viewed by the public’s eye.
You see, as residents of the United States, every person has a right to enter the courthouse, pull up John Doe’s criminal record, and view it without restraint. It’s called freedom of information. If you are applying for employment or housing, it may especially be a good idea to expunge your record as the employer or landlord may legitimately deny your application if they discover something that may warrant such a denial in your criminal record.
Please note that some records, such as your DMV driving record, may only have an impact on you and your insurance rates for 3-5 years (until that time period elapses since the incident occurred). However, those same charges will remain on your permanent criminal record.. well, permanently; that is until you expunge them.
Qualifications for Expungement
In the Commonwealth of Kentucky, any person who has been convicted of a misdemeanor, a violation, or a traffic infraction (or a series of misdemeanors, violations, or traffic infractions arising from a single incident) may petition the court to have that conviction sealed. See KRS 431.078. This does not include certain traffic offenses.
The Kentucky Court of Justice website states that a “case that has been dismissed or has been an acquittal may be considered for expungement no sooner than 60 days following the dismissal or acquittal of the case.” See KRS 431.076(2). There is no filing fee for those types of cases.
However, if the case was a misdemeanor or violation conviction, then you must wait five years from the date of completion of the sentence and/or probation for the offense. No new offenses or violations (excluding traffic infractions) may be committed within the five year period; otherwise you will not be eligible for expungement. A $100 filing fee must be paid for each individual charge you seek to expunge and it must be paid at the time your petition(s) is(are) brought before the court. If the court ultimately rejects your petition(s) and your charges do not get expunged, you will be refunded the filing fee for each rejected petition.
The Process Itself
You will first need to log in to the Kentucky Court of Justice’s public menu and create a profile. Then select the AOCFastCheck and pay the $20 (may require a $2 processing fee). After that you’ll have to pay $18 and request your Expungement Certification from the Kentucky State Police on that same site (may also require a $2 processing fee)*. Print them both, take your photo ID with you, and bring all three items to the District Court clerk along with a $100 check for each individual petition.
Please note: The expungement process is merely a request of the Court to grant the expungement; it is not an order. Ultimately, the Court is under no obligation to grant your petition and has discretion to deny it. If it does end up denying your expungement, you will be refunded only the $100 filing fee for each denied petition. All the more reason to contact an attorney first to make sure the record can be expunged which will save you $40.
When you present all documents to the Court and pay the filing fee, the clerk will ask if you’d like to have a hearing. It is my recommendation that you request it. When given a choice, you should always request a court hearing. That way, if your case is a borderline one, you may be able to sway the judge in your favor. Otherwise you will be left to the mercy of the court without any say in the matter. Having an attorney by your side will increase the likelihood of having your expungement petition granted.
If your petition is granted, be sure to double check with the court in 4-6 weeks to ascertain that your record was expunged from the agencies that you requested (sometimes a file may be misplaced or forgotten about so this will help you avoid any potentially embarrassing moments.)
What charges cannot be expunged?
– Felony convictions (except class D felony drug offenses)
– Offenses that involve children
– Offenses of the sexual nature
– If you have a felony conviction, generally, misdemeanor charges cannot be expunged
– Traffic offenses
– Charges from other states (You must complete that state’s process for expungement)
– Federal or military charges
Helpful Video from the Legal Aid Society
The Legal Aid Society has a very helpful and informative video about the expungement process which can be viewed below.**
**Note: AOCFastCheck now costs $22, not $15, and can be done online here rather than by physical mail.
What an Attorney can do for you
Generally speaking, you can pursue an expungement on your own. A lot of my clients prefer for me to do it for them because I know the nuances in the law and can do a better job at arguing their case in front of the judge and prosecutor.
In order for your case to be processed quickly and efficiently, you should message me, and I will be able to tell you whether or not you qualify to have your case expunged.
I hope to speak to you soon.
If you require assistance with a DUI, traffic ticket, expungement, or some other criminal charge, please contact me or call me at (502) 931-6788.
The DUI Guy.
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