Professional Documents
Culture Documents
EXPUNGEMENTS, SEALING
AND SEQUESTRATION OF
CRIMINAL RECORDS
(2009, Second Edition)
By: J. Brent Standridge, Attorney-at-Law
©2008, 2009 by J. Brent Standridge
TABLE OF CONTENTS
Expungement Overview…………………………………………………………………...3
1. EXPUNGEMENT OVERVIEW
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manner where only certain entities will have access to the record. Ark. Code Ann. §16-
90-901 notes that expunge does not normally entail the physical destruction of the
criminal record. An expungement restores certain civil rights to the offender.
Administrative Order No. 19 of the Supreme Court of Arkansas addresses many
aspects of court records and contains definitions of terms relevant to this outline.
The order provides that the term “sealed” means “that the contents of a court
record may not be disclosed unless otherwise permitted by this order, or by law. When
and to the extent provided by this order or by law, ‘sealed’ shall mean also that the
existence of a court record may not be disclosed.”
The order provides that the term “expunged” means “that the record or records in
question shall be sequestered, sealed, and treated as confidential, and neither the contents,
nor the existence of, the court record may be disclosed unless otherwise permitted by this
order, or by law. Unless otherwise provided by this order or by law, ‘expunged’ shall not
mean the physical destruction of any records.”
The order provides that “confidential” means “that the contents of a court record
may not be disclosed unless otherwise permitted by this order, or by law. When and to
the extent provided by this order or by law, ‘confidential’ shall mean also that the
existence of a court record may not be disclosed.”
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the same procedure is to be utilized to seal and sequester court and arrest records
concerning the offense. Evidently applies to ALL offenses.
h. Procedural provision. These provisions are primarily procedural ones: they do
not create a substantive right of expungement. L.H. v. State, 333 Ark. 613, 973
S.W.2d 477 (1998).
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committed a non-violent, non-sexual offense. Felony DWI offenders also qualify.
The person must be a member of the “target group” as defined by the statute.
b. 16-93-1202(10)(A)(iv)--Midemeanants included. Offenders committing
misdemeanors are eligible for a disposition under the Act (except those
committing sexual offenses for which the person must register as a sex offender).
Misdemeanor DWI offenders are excluded as per the text of the statute and other
offenders may be excluded by statute. Issue whether misdemeanants who commit
sexual offense for which they do have to register as a sex offender would qualify
(presumably so) and whether misdemeanants who commit violent offenses would
qualify (probably so—the author’s view has changed regarding this issue).
c. 16-93-1206(b)—Sentencing alternatives. Includes various options and if a
probation or suspension is authorized and the conditions are violated the Court
may proceed with a revocation as is normally the case.
d. 16-93-1207(b)(1)—Order of court upon successful completion. If the offender
successfully completes his sentence, the trial court MAY order expungement of
record.
e. 16-93-1207(b)(1)—Eligibility and restrictions. The offender must have had not
more than one (1) previous felony and the conviction had to be for something
other than certain class Y felonies or delivering a controlled substance to a minor.
Expunged convictions are still counted for this purpose.
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6. ARKANSAS JUVENILE CODE EXPUNGEMENTS--Ark. Code Ann. §9-27-
309
a. First Time Drug Possession Offenders Eligible. Provides that first time drug
possession offenders (except Schedule I possessors) are eligible. Drug delivery
offenders are ineligible. See Shelton v. State, 44 Ark. App. 156, 870 S.W.2d 398
(1994).
b. Deferment analogous to First Offender Act. Where person pleads guilty OR is
found guilty, the court MAY without entering a judgment of guilt and with
consent of the offender defer further proceedings and place him/her on probation
for a period of not less than one (1) year with conditions.
c. Violations and revocation of probation. If the conditions of probation are
violated the court may proceed as would normally be the case including
revocation of probation and entry of an adjudication of guilt.
d. Discharge and dismissal upon compliance. Upon fulfillment of the terms and
conditions the Court SHALL discharge the offender and dismiss the proceedings
against him/her.
e. One (1) time utilization of provision. There may be only one (1) discharge and
dismissal under this statute with respect to any person.
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f. Effect of discharge and dismissal. Not a conviction for purposes of §5-64-413
OR for purposes of disqualification or disabilities imposed by law upon
conviction of a crime including additional penalties imposed for second or
subsequent conviction under Ark. Code Ann. §5-64-408 (enhanced sentences for
second or subsequent drug offenders).
g. Expungement pursuant to Uniform Expungement Act. It is provided for that
upon successful completion of the probation the person may apply for sealing and
sequestration of record pursuant to the Uniform Expungement Act.
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and place the offender on probation (supervised or unsupervised) and the offender
will remain in a probationary status until a judgment is entered.
c. Entry of judgment or further postponement. In certain conditions court is
authorized to quickly enter judgment or postpone judgment for more than one (1)
year.
a. Ark. Code Ann. §5-4-105--Expungement and sealing options. Part of Act 744
of 2007 became codified as this statute and it essentially restates all the
expungement and sealing options depending on whether there was a trial or plea,
judgment of guilt or deferral, or acquittal or dismissal.
b. Ark. Code Ann. §5-4-205(d)--No expungement until restitution paid. A
record of a defendant SHALL NOT be expunged until all court-ordered restitution
has been paid.
c. Ark. Code Ann. §§16-90-601, 602, 603, 605.
d. Ark. Code Ann. §5-73-103(b)(2)(as amended by Act 1491 of 2009). Provides
that if the person receives an expungement under the First Offender Act or Drug
Court Act the same does not qualify as a conviction for purposes of the felon in
possession of firearm statute. It arguably revives the law which existed prior to
Act 595 of 1995 to provide that an expungement restores the person's right to
possess a firearm. Issue whether it applies to expungements other than those
obtained under the First Offender or Drug Court Acts.
a. DWI Offenders. Note that misdemeanor DWI offenders are excluded from
eligibility for expungements. Part of the Omnibus DWI Act, Ark. Code Ann. §5-
65-108, specifically excludes DWI offenders from solely being placed on
probation under the First Offender Act. Also, under part of the Community
Punishment/Corrections Act, Ark. Code Ann. §16-93-1202(10)(A)(iv) excludes
misdemeanor DWI offenders from receiving expungement as per the Community
Punishment/Corrections Act. It may generally be said that misdemeanor DWI
offenders are ineligible for expungement. Note that felony DWI offenders who
are sentenced under the provisions of the Community Punishment/Corrections
Act are eligible to have their record expunged. Fulmer v. State, 337 Ark. 177,
987 S.W.2d 700 (1999). The holding in the Fulmer case has been incorporated
into part of the Community Punishment/Corrections Act, Ark. Code Ann. §16-93-
1202(10)(A)(i), which defines "target group" to include DWI, fourth or
subsequent offenders.
b. Underage DUI Offenders. Ark. Code Ann. §5-65-308 specifically excludes
underage DUI offenders from solely being placed on probation under the First
Offender Act, the same as is the case with misdemeanor DWI offenders and thus
they cannot have their records expunged pursuant to the First Offender Act. It is
doubtful that underage DUI offenders would qualify for expungement under any
provision although the Community Punishment/Corrections Act remains a
possibility.
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c. Sex Offenders. It has already been noted that sex offenders who were involved
with a victim under the age of eighteen (18) years are ineligible for expungement
of record under different provisions. Some sex offenders are not going to be
eligible even in cases where no minor victim is involved because it is not going to
be lawful for them to have a disposition made pursuant to an Act which authorizes
expungement upon completion of their sentence. For example, an adult convicted
of rape is not going to be able to have their record expunged because they must be
sentenced to the Arkansas Department of Correction. Do note that for purposes of
determining whether a sex offender is eligible for an expungement it must be
remembered that it is the expungement law that was in effect at the time the
offense was committed that is controlling on the issue, at least in the absence of
language of subsequent acts excluding such offenders by making clear such
subsequent acts are to be applied retroactively. For example, in the case of
McBride v. State, 99 Ark. App. 201 (2007), the Court found that a sexual offender
with minor victim who received probation under the First Offender Act was
entitled to expungement of record because the law excluding such offenders from
expungement did not become effective until after the crime and was not
retroactive.
d. Violent Offenders. Those committing violent crimes are not going to qualify for
expungement under the Community Punishment/Corrections Act because, at least
with respect to the felony offenders, they are excluded from the Act. A question
remains whether misdemeanor violent offenders qualify under the Act. They
may qualify for expungement if sentenced pursuant to other Acts (the First
Offender Act for example). Some violent felony offenders, as is the case with
some sex offenders, are not going to be eligible for expungement for they could
not be sentenced pursuant to any Act authorizing expungement upon successful
completion of their sentence. For example, offenders convicted of murder in the
first degree or aggravated robbery would never be eligible for expungement.
e. Other Offenders may be ineligible because of the offense committed or
because of their recidivist status. The offense must be studied to determine
whether it can be used in conjunction with an Act authorizing expungement and
the offender's status will have to be studied as well to determine that if he/she has
prior convictions whether the offender can be sentenced under a specific Act.
a. Shelton v. State, 44 Ark. App. 156, 870 S.W.2d 398 (1994)--Makes clear that if an
offender, at time disposition is made, is not sentenced pursuant to an Act
authorizing expungement upon completion of sentence, trial court is without
authority to expunge the record.
b. State v. Burnett, 368 Ark. 625, 249 S.W.3d 141 (2007)--Like Shelton except
concerned the "clean slate" provision of Ark. Code Ann. §5-4-311; because the
offender was sentenced to ADC (and ended up completing the boot camp
program), his disposition was clearly not made under §5-4-311 because a
judgment of conviction was entered.
c. Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002)--Holds that an offender
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committing the offense of sexual solicitation of a minor child was illegally
sentenced under the First Offender Act for at the time the offender committed the
offense it excluded such persons from being sentenced under the Act. The
Supreme Court raised the issue sua sponte and corrected the disposition to
provide that the offender was not sentenced under the First Offender Act and
would therefore not be able to get his record expunged. An alternative basis
could have been that as the disposition was made after a jury trial instead of a plea
of guilty or nolo contendere the First Offender Act was inapplicable.
d. State v. Warren, 345 Ark. 508, 49 S.W.3d 103 (2001)--this case and others
concerned Act 595 of 1995 and the scenario of an offender being charged with
felon in possession of a firearm under Ark. Code Ann. §5-73-103. If the prior
felony occurred before the effective date of Act 595 of 1995 and ended up being
expunged, it cannot form the basis of a felon in possession of firearm charge. If
the prior offense occurred after the effective date of Act 595 of 1995, then an
expungement will not restore the right to possess a firearm and, in that instance, a
person must apply for and receive at least a restoration of firearm right from the
Governor; otherwise if he possesses a firearm he can be prosecuted for felon in
possession of a firearm notwithstanding the fact that his conviction was expunged.
Note! recent legislative Act 1491 of 2009 which amends the felon in possession
of firearm statute notes that if a felony is expunged, the offender may possess a
firearm such that the offender could not be successfully prosecuted for felon in
possession of a firearm. Essentially this Act reinstates the law as it existed prior
to the passage of Act 595 of 1995. Issues include (1) whether this new Act
applies to expungement acts other than the First Offender Act and expungements
under drug court programs and (2) whether this new Act requires those who have
already received an expungement to file another application resulting in entry of
another expungement order in order to receive the benefits of the new Act.
e. Edwards v. State, 70 Ark. App. 127, 15 S.W.3d 358 (2000)--The offender was
sentenced under the Community Corrections/Punishment Act for aggravated
assault and received probation. The offense was committed in November, 1995,
and was not expunged. Subsequently he was charged with felon in possession of
a firearm and the Court held that prior felony could for a basis for the charge in
that the prior felony was not expunged and the trial court has discretion under the
Community Corrections/Punishment Act to expunge the record. The case of Irvin
v. State, 301 Ark. 416, 784 S.W.2d 763 (1990), was distinguished. In that case
the offender was sentenced under the Youthful Offender Alternative Service Act
of 1975 and was absolutely entitled to an expungement under that Act without
any action on his part. In Irvin, had the expungement occurred when it should
have, based on the law in effect at that time the State could not have successfully
prosecuted the offender for felon in possession of a firearm.
f. Gosnell v. State, 284 Ark. 299, 681 S.W.2d 385 (1984)--holds that expunged
convictions under the Youthful Offender Alternative Service Act of 1975 can be
utilized to charge the offender as a habitual offender when he commits subsequent
felonies. In West v. State, 82 Ark. App. 165, 120 S.W.3d 100 (2003), the Court
reached the same result.
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Uniform judgment and disposition orders or judgment and commitment
orders are in use and they all have a section dealing with whether the offender's
disposition is made pursuant to an Act authorizing expungement, sealing and
sequestration of their record if they successfully complete their sentence. If an
offender's disposition is going to made pursuant to Act authorizing expungement
upon successful completion of sentence, the judgment or order of disposition should
clearly provide what Act the disposition is being made under so that there will be no
question of the offender's eligibility for expungement when the offender files a
petition to seal and sequester the record. There are cases where there may be a
number of choices for a disposition under various expungement Acts that could apply
so the order or judgment needs to specify which specific one is going to apply.
Eligibility needs to be determined at least by the time the disposition is
made; otherwise, the offender may be ineligible for expungement upon successful
completion of his/her sentence.
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