Expunging a Criminal Record for a Security Clearance

We all make mistakes. Whether it's a youthful indiscretion, a misunderstanding, or a disagreement that escalated, we've all been there. But if you have an arrest, criminal charge, or a conviction on your record, that mistake can follow you further than it should. A criminal record can affect future job prospects, especially if you'd like to work for the U.S. government, a government contractor, or another employer requiring a security clearance. Fortunately, Pennsylvania law offers some options to clean your record.

Security Clearances in Pennsylvania

The U.S. Office of Personnel Management provides guidance on the information you must disclose in a security clearance questionnaire for "national security positions." National security positions requiring a security clearance can include:

  • U.S. military personnel,
  • Jobs with a government agency,
  • Civilian jobs with the U.S. Department of Defense, and
  • Jobs with government contractors.

To apply for a security clearance, you must have the sponsorship of a government agency and be a U.S. citizen. Private individuals can't simply apply for a clearance. There are also different types of security clearances for jobs or projects that are more sensitive:

  • Secret: A secret security clearance is reinvestigated every ten years and provides access to information that may cause serious damage to national security if disclosed.
  • Top secret: A top secret clearance provides access to information that may cause grave damage to national security if disclosed. This clearance is reinvestigated every five years.
  • Sensitive compartmented information (SCI): An SCI security clearance provides access to information from intelligence sources, methods, and processes. This information is stored in a special SCI facility.
  • Special access programs (SAP): An SAP security clearance provides access to information for a specific, highly sensitive program or project.

Many state and local law enforcement agencies governing officials also obtain security clearances through the FBI to obtain information when they "need to know" related to local terrorism threats.

Before obtaining a security clearance, you'll undergo a process that includes an application, investigation, and adjudication. The purpose of the investigation is to ensure that you are:

  • Free from the influence of foreign countries,
  • Loyal to the United States,
  • Mentally and psychologically stable,
  • Not involved in criminal activity, and
  • Trustworthy, honest, and moral.

In many cases, you can lose your job or job offer if the government denies your application for a security clearance.

Background Checks for Security Clearances

As part of the security clearance process, you'll need a criminal background check and a credit check. During this process, you must disclose your entire criminal record, including any arrests that didn't result in a conviction. Some low-level offenses, such as summary offenses or misdemeanors involving crimes such as disorderly conduct and marijuana possession, may not disqualify you from obtaining a security clearance. But you will still need to disclose these offenses.

Can an Expungement Help Those Needing a Security Clearance?

Under Pennsylvania law, we have three levels of crimes, including summary offenses, misdemeanors, and felonies. A summary offense is a low-level criminal violation, generally punished by a fine rather than jail time. However, the maximum penalty under the law for a summary offense is 90 days in jail and a fine of $1,500. Both misdemeanor and felony convictions can result in jail time and fines. But felonies are the most serious criminal violations in Pennsylvania, with serious jail time and fines possible after a conviction.

Under Pennsylvania law, you can only expunge arrest or criminal records in limited situations:

  • You can expunge a summary offense if you've remained free from arrest or prosecution for five years.
  • You may expunge crimes if the police charged you, but no court convicted you, including nolle prose dispositions, not guilty verdicts, dismissed charges, and dropped charges.

However, if you have a misdemeanor or felony conviction, it's unlikely you can expunge these records. An experienced Pennsylvania expungement attorney can advise you on your best course of action.

Sealing Criminal Records in Pennsylvania

Even if you aren't eligible to expunge a conviction, you may be able to seal a nonviolent conviction under Pennsylvania's Act 5 of 2016, including drug-related convictions. When you seal a record, it doesn't destroy the existing records but removes them from public view. Law enforcement agencies can still access sealed records.

You may be able to seal your record in Pennsylvania if:

  • Your record contains only second or third-degree misdemeanor convictions,
  • You haven't been arrested in the last ten years,
  • You don't have a felony, first-degree misdemeanor, or second-degree misdemeanor simple assault convictions,
  • You completed your sentence, and
  • Your record has fewer than four misdemeanor convictions.

In some cases, the state will now automatically seal some records under the Clean Slate Act of 2018 when:

  • A court found you not guilty,
  • You were arrested but never convicted,
  • You have only nonviolent criminal convictions, and it's been ten years since your last conviction,
  • You have a misdemeanor offense involving less than two years in prison.

Sealing can be an option to keep your criminal or arrest records from public view. You won't have to disclose sealed records for many routine background checks performed by potential employers. However, FBI criminal background checks and security clearance background checks will reveal sealed records, and, in many cases, you must disclose them.

When Must You Disclose Expunged or Sealed Records?

In some cases, expungement may not prevent you from having to report an arrest or conviction. Under SF 86, Questionnaire for National Security Positions, Section 22, which asks about police records, you must report information about any arrests, summons, citations, tickets, charges, convictions, sentences, and probation or parole regardless of whether a court expunged or sealed the record:

For this section report information regardless of whether the record in your case has been sealed, expunged, or otherwise stricken from the court record, or the charge was dismissed. You need not report convictions under the Federal Controlled Substances Act for which the court issued an expungement order under the authority of 21 U.S.C. 844 or 18 U.S.C. 3607. Be sure to include all incidents whether occurring in the U.S. or abroad.

(Emphasis added). However, obtaining an expungement or sealing also shows that the Pennsylvania courts believe you deserve a second chance and no longer consider the circumstances of your record to be serious.

How Can an Attorney Help with an Expungement?

Expungement law in Pennsylvania is complex. Understanding whether you are eligible for an expungement, sealing, or another process to clear your record can be difficult to ascertain. An experienced Pennsylvania criminal defense attorney well versed in handling expungement applications can ensure that you complete the correct application and include all the necessary information about your arrest and court records. Moreover, an expungement lawyer can help you determine what you must disclose concerning a security clearance. Using a skilled lawyer can make the entire process faster and more efficient and give you peace of mind.

Hire an Experienced Pennsylvania Expungement Attorney

If you have a criminal record and need a security clearance for your job, you need legal guidance. Attorney Joseph D. Lento and the skilled legal team at the Lento Law Firm can guide you through the expungement and sealing process and provide you with your best options. Find out how they can help you. Call the Lento Law Firm at 888.535.3686 to schedule a consultation, or contact them online today.

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Attorney Joseph D. Lento has more than a decade of experience successfully resolving clients' criminal charges in Philadelphia and the Pennsylvania counties. If you are having any uncertainties about what the future may hold for you or a loved one, contact the Lento Law Firm today! Criminal defense attorney Joseph D. Lento will go above and beyond the needs of any client, and will fight until the final bell rings.

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