If you have been convicted of any criminal offense, you know how much it negatively affects your life even after you have completed serving your sentence. Whether it was time spent in prison, probation or completion of supervised release, there are many negative consequences. Applications for jobs, housing, consumer loans and others ask if you have ever been convicted of a felony and you are forced to answer, “yes.” However, depending on the type of felony, you may be able to have your conviction expunged.
Having your federal conviction expunged (meaning it is erased from your criminal record as though it never occurred) is difficult. Currently, there are only certain types of federal convictions that can be expunged and quite a few requirements you must meet in order to even qualify to file a petition for expungement.
Legislation is currently pending in Congress that would make it easier for more people to qualify for expungement. However, there are no guarantees as to when and if that legislation will be enacted. And, if so, there are no guarantees as to whether or not the president will sign it into law.
Current Expungement Law Applicable to a Felony Conviction
Under current law, there are very few circumstances which allow you to have your federal conviction expunged. For example:
Statute of conviction found to be unconstitutional. If you were convicted of a law that has subsequently been found to be unconstitutional, you may petition for expungement and your petition will be granted.
Governmental misconduct. If a federal court finds the conviction was procured as the result of governmental misconduct, your conviction will be expunged.
Drug possession conviction under the age of 21. If you were convicted of a simple drug possession offense when you were under the age of 21, your conviction may be expunged if you meet all of the following criteria:
- It has been three years since your conviction was final.
- You have paid all penalties and complied with all conditions of probation or supervised release.
- You have not been convicted of any other state or federal drug offense.
- You submit to a drug test and the test result is negative.
If a court orders your conviction expunged, it will be as though you were never convicted. The records will be destroyed and you can deny that you have ever even been arrested for a criminal offense. It should be noted that some records are kept sealed for use only if you are subsequently convicted of a drug offense and later ask for that conviction to be expunged.
Expungement When Placed on Prejudgment Probation
You may qualify to have your criminal record expunged if you are charged with simple drug possession as defined in 21 U.S.C. section 844. You must still meet certain qualifications:
- You have no prior state or federal convictions for controlled substance offenses.
- You have no prior criminal history of any kind before the court that has jurisdiction over your current case.
- You agree to plead guilty to the offense. The court will then put you on probation for up to one year. Entry of judgment will be postponed until the end of that time. If you successfully complete your term of probation, the court will then dismiss the case against you. If you violate a term of probation, the court has the option of proceeding to sentencing since you have already pled guilty to the offense.
When your case is dismissed and no conviction is entered, it will not be considered a conviction. You can truthfully answer “no” when asked if you have ever been convicted of a felony.
Legislators are beginning to recognize a need to change the law so that more people convicted of federal crimes may have their convictions expunged. The Expungement Act of 2017 was introduced in the House of Representatives in July 2017 and referred to the House Judiciary Committee.
The Judiciary Committee referred the bill to a subcommittee in September 2017 where it has languished ever since. The purpose of the law is to establish a procedure for anyone convicted of a non-violent felony to have their conviction expunged. This is not the first time such a bill has been considered by Congress. This may die without making it out of the committee. But, it is encouraging that members of Congress are recognizing the harsh consequences of the “War on Drugs” and are working to minimize the effect of some of the current laws.
If you have been convicted of a nonviolent federal offense and are interested in having your conviction expunged, contact Las Vegas criminal defense attorney Gabriel Grasso. He knows what is required for an expungement application. If your case is not one where expungement is currently available, he may know other avenues of relief you can pursue. Contact him for a free and confidential case review and to discuss your options.