When a person is arrested and charged with a crime in Pennsylvania, they not only have to be concerned about the potential short-term implications, they have to be concerned about the potential long-term implications. Short-term implications may include the loss of one's freedom, fines and court costs, burdensome conditions of probation and/or parole, and so forth. These implications can of course have an immediate impact on a person's employment, education, and family life.
Long-term implications can include suffering the consequences of a criminal record. Unless a person's criminal charges can be resolved in a favorable manner, such as being found not guilty, having the charges dismissed or withdrawn, or resolving the case through a diversionary program such as ARD, a permanent criminal record will be created and maintained not only by the Pennsylvania State Police and the Federal Bureau of Investigation (FBI), but also by all law enforcement, court, and government agencies that were involved in the defendant's arrest, conviction, and supervision, whether it be probation or parole.
Because of these concerns and many others, people with criminal records will often ask, "Can I get my criminal record expunged in Pennsylvania?" For better or worse, it depends on many factors, including primarily how the criminal charges were resolved. Before the specific eligibility requirements (and ineligibility factors) are explained, it will be helpful to understand what exactly is an expungement in Pennsylvania.
What does it mean to have a criminal record expunged in Pennsylvania?
Because a criminal record can greatly complicate a person's life, whenever possible, defendants should consider the prospect of getting their criminal records expunged. An understanding of what an expungement is in Pennsylvania will be helpful in understanding how such a step can help a person move forward despite prior mistakes or indiscretions.
An expungement in Pennsylvania means the removal of information so that there is no trace or indication that such information existed. It also means the elimination of all "identifiers" which may be used to trace the identity of an individual, allowing remaining data to be used for statistical purposes only.
Under Pennsylvania law, 18 Pa.C.S.A. § 9102 specifically, criminal history record information is defined as information collected by criminal justice agencies concerning individuals which consists of identifiable descriptions, dates and notations of arrests, detentions, indictments, criminal informations or other formal charges and any disposition arising from such matters. The law in Pennsylvania that addresses expungements is known as the "Criminal History Record Information Act".
Step # 1 - Am I eligible to get my record expunged in Pennsylvania?
Although the ability to have a criminal record in Pennsylvania is limited, there are nonetheless several grounds to seek such relief. The first step in seeking an expungement in Pennsylvania is to determine if one is eligible to do so.
In Pennsylvania, the unfortunate reality is that unless an exception exists, as explained below, if a person was found guilty or pleaded guilty to a criminal charge in Pennsylvania, they will not be eligible to have that criminal charge expunged. If the charge was a felony or a misdemeanor, this rule applies. If, however, the person was found guilty or pleaded guilty to a summary offense, if five years pass after the case is successfully closed, and if the person remains arrest and prosecution-free, the person will be eligible to have the summary offense. The five years will be calculated from the end of the case, meaning that if the person was placed on probation for one year, the five years would be calculated from the date that the probation ended, and not when the conviction or guilty plea took place.
Pennsylvania's record sealing law which went into effect in November 2016 will help some people who would otherwise be ineligible to seal their records if specific conditions are met. Although there may be some similarities (in addition to major differences), for purposes of this article, Pennsylvania's expungement process is specifically addressed.
A careful analysis has to be performed to determine exactly what charges will be eligible to be expunged and what charges will not be eligible. Consider the following example:
Defendant found guilty of "Simple Assault", but was found not guilty "Conspiracy". Because "Simple Assault" is usually graded as a misdemeanor of the 2nd degree (it is sometimes graded as a misdemeanor of the 3rd degree in cases involving a "mutual fight"), the "Simple Assault" charge would not be eligible to be expunged (if there are no exceptions to the defendant's ineligibility of which there usually are not). Because the defendant was found not guilty of the "Conspiracy" charge, the "Conspiracy" charge would be eligible to be expunged.
There are countless different ways that a defendant's case can be disposed. Charges can be dismissed, withdrawn, "nolle prossed" (meaning "no longer prosecuted"). A defendant can be found guilty or not guilty. When a defendant has multiple cases, a careful analysis of each case needs to be performed to determine which cases and which charges can be cleared.
In addition, if a defendant's case was prosecuted by one Pennsylvania county and was supervised by a different Pennsylvania county (or counties) during a period of parole or probation, the county (or counties) where the case was supervised will also have records pertaining to the case. In such an instance, the supervising Pennsylvania county create what is known as a "miscellaneous docket" (an "MD" docket) in contrast to the "criminal docket" (the "CR" docket) that is created in the originating county. As such, the supervising county an expungement petition will have to be filed in the supervising county if a person is trying to clear their records as comprehensively as possible. For example, if a case was prosecuted in Philadelphia and then the defendant moved to Pittsburgh, Philadelphia County would have records pertaining to the original case and Allegheny County, the county in which Pittsburgh is located, would have records pertaining to the supervised case. Both Philadelphia and Allegheny County should be petitioned if a person seeks to clear all records pertaining to the criminal matter.
Are there any exceptions to Pennsylvania's expungement eligibility requirements?
There are several other circumstances under which a person who otherwise would not be eligible for an expungement in Pennsylvania based on the above considerations may be.
Under the Pennsylvania Criminal History Record Information Act, a person's criminal record must be expunged if:
- "No disposition has been received or, upon request for criminal history record information, no disposition has been recorded in the repository within 18 months after the date of the arrest and the court of proper jurisdiction certified to the director of the repository that no disposition is available and no action is pending. Expungement may not occur until the certification from the court is received and the director of the repository authorizes such expungement."
The above paragraph would generally relate to matters where a person is arrested in Pennsylvania and the criminal charges do not go forward. Although this is a not a common occurrence, it does happen. If a person in such a situation seeks to have their record expunged, they would have to petition the court of common pleas in the Pennsylvania county in which the arrest took place. If the court grants an expungement order for such an arrest record to be expunged, the expungement order would have to be forwarded to the Director of the Pennsylvania State Police (the "director" of the "repository"), as is the case with all Pennsylvania expungements, for the Director to authorize that the Pennsylvania State Police expungement unit located in Harrisburg, expunge the person's records. (The Director of the Pennsylvania State Police is not directly involved with such matter, but rather, authorizes employees of the Pennsylvania State Police to act on the Director's behalf.)
Although not an "exception," another ground for expungement in Pennsylvania follows:
- "A court order requires that such non-conviction data be expunged."
The above paragraph is the basis for which most expungements in Pennsylvania will be based upon. A person who was not convicted in a criminal case, or in some instances, was not convicted of certain charges but either was convicted or pleaded guilty to other charges, would petition the court of common pleas in the Pennsylvania county in which the case took place for an expungement of the charges for which the person was not convicted or did not plead guilty (the "non-conviction data").
College students and young people who were cited or arrested for underage drinking may find themselves eligible for the following basis for expungment in Pennsylvania:
- "A person 21 years of age or older who has been convicted of a violation of § 6308 (purchase, consumption, possession or transportation of liquor or malt or brewed beverages) petitions the court of common pleas in the county where the conviction occurred seeking expungement and the person has satisfied all terms and conditions of the sentence imposed for the violation, including any suspension of operating privileges imposed pursuant to § 6310.4 (restriction of operating privileges). Upon review of the petition, the court shall order the expungement of all criminal history record information and all administrative records of the Department of Transportation to said conviction.
As the statute notes, when a young person who had been cited for underage drinking or purchasing alcohol as a minor reaches the age of 21, if all conditions of the sentence for the original charge have been satisfied including the payment of any fines and courts costs, the young person can petition the court of common pleas in the Pennsylvania county in which they were cited or arrested for an expungement. For example, if the young person was a college student in Philadelphia when cited or arrested for underage drinking, the Philadelphia Court of Common Pleas would be the court that would need to be petitioned. Unlike other expungements in Pennsylvania, Pennsylvania's Department of Transportation, known as "PennDOT", will update its records upon receipt of the expungment order when granted.
Another basis for expungement which is less common, but nonetheless allows otherwise ineligible persons to seek an expungement, follows:
- An individual who is the subject of the information reaches 70 years of age and has been free of arrest or prosecution for ten years following final release from confinement or supervision.
It may require many years of waiting, but older individuals who may want to clear their criminal records out of principle or for other reasons will be eligible to do so per the above provision of Pennsylvania's expungement law.
The final exception to Pennsylvania's expungement law is arguably laughable if it did not illustrate how difficult it can be for many people who have made a mistake to clear their records:
- An individual who has been the subject of the information has been dead for three years.
It arguably adds insult to injury that a deceased person will not be eligible for an expungement until three years after their death. (To clarify, the estate of a deceased person would be the petitioning party when such an expungement is sought.)
There are specific exceptions to Pennsylvania expungement law, however.
- A court shall not have the authority to order expungement of the defendant's arrest record where the defendant was placed on Accelerated Rehabilitative Disposition for a violation of any offense set forth in any of the following where the victim is under 18 years of age:
- Section 3121 (relating to rape).
- Section 3122.1(relating to statutory sexual assault).
- Section 3123 (relating to involuntary deviate sexual intercourse).
- Section 3124.1 (relating to sexual assault).
- Section 3125 (relating to aggravated indecent assault).
- Section 3126 (relating to indecent assault).
- Section 3127(relating to indecent exposure).
- Section 5902(b) (relating to prostitution and related offenses).
- Section 5903 (relating to obscene and other sexual materials and performances
Step # 2 - Obtaining Your Pennsylvania State Police Background Check
After determining whether or not a person is eligible to have either their entire criminal case or in the alternative, specific charges expunged, the petitioner's Pennsylvania State Police background check must be ordered from the Pennsylvania State Police. The only exception to this requirement is Philadelphia where the Philadelphia District Attorney's Office "waives" their right to have the Pennsylvania State Police background check included in the expungement petition. It takes approximately 2 - 4 weeks for the Pennsylvania State Police background check to arrive by mail once ordered. The background check will also be available online once the record check is completed. The time frame the background check to be available online is also 2 - 4 weeks. For some lower level offenses, the Pennsylvania State Police background check may be returned as having "No Record Exists". If this is the case, the Pennsylvania State Police background will be available online immediately.
If an expungement is sought in any of Pennsylvania's 67 counties other than Philadelphia without the Pennsylvania State Police background included as part of the expungement petition, the clerk of courts in the county in which the matter took place can (and most likely will) reject the expungement petition as deficient. The clerk of courts will send the expungement petition and related documentation back to the petitioner for this to be corrected. Because people seeking expungements often do so because of external pressures related to employment, education, living arrangement, and so forth, petitioners do not generally have time to waste to correct something that should have been attended to in the first place. In addition, the Pennsylvania State Police background check has to be dated within 60 days of filing the expungement petition with the clerk of courts. Although the clerk of courts may not reject the expungement petition if the background check is not dated within 60 days of filing, the District Attorney's Office who prosecuted the case will most likely object to the expungement because the petition does not meet Pennsylvania expungement requirements.
The District Attorney's Office will be located in the same county as the clerk of courts where the petition is being filed. For example, if a Montgomery County criminal case is petitioned to be expunged, the Montgomery County Clerk of Courts is where the petition will be filed, and the Montgomery County District Attorney's Office will the applicable district attorney's office that will review the request. In Bucks County, it would be the Bucks County Clerk of Courts and the Bucks County District Attorney's Office. In Delaware County, it would be the Delaware County District Attorney's Office and the Delaware County District Attorney's Office. Philadelphia is somewhat different in the sense that there is not a traditional clerk of courts, but the above principle remains the same in that the Philadelphia District Attorney's Office will review the request.
Step # 3 - Filing the Necessary Pleadings with the Court
While waiting for the Pennsylvania State Police background check to be available, the necessary expungement pleadings should be completed. In Pennsylvania, expungement pleadings will consist of the petition itself, the proposed Order, a verification form, a certification of service form, the Pennsylvania State Police background check, and any necessary additional documentation.
What is the difference between a "790" expungement and a "490" expungement?
In cases that involved any misdemeanors or felonies, the "790" petition needs to be prepared. In cases that only involved summary offenses, the "490" petition needs to be prepared. If a case involves both summary offenses and any misdemeanors or felonies, as above, the "790" petition needs to be prepared. "790" and "490" reference the applicable Pennsylvania expungement law under which the petitioner is proceeding.
The proposed Order is the order that will be presented to the judge at the applicable time for the judge's signature. Once approved and signed by the judge, the seal of the clerk of court of the Pennsylvania county in which the expungement is sough will be placed on the order. Not to state the obvious, but all information related to seeking an expungement has to be accurate. More specifically, the petitioner's personal information and all information related to the criminal case has to be triple-checked before filing the expungement pleadings. This is especially true of the proposed Order because the order is what will be forwarded to the applicable law enforcement, court, and government agencies involved in the criminal case so that those agencies can expunge the person's record.
Who should be served with an expungement order in Pennsylvania?
Speaking of which, when preparing the necessary pleadings, it is important to make certain that all law enforcement, court, and government agencies that were involved in the criminal case are included in the expungement pleadings. For example, if the county probation department had supervised the defendant while the criminal case was open, the county probation department would have records pertaining to the defendant. For that reason, the county probation department should be served with an expungement order. If the defendant spent even one night in the county jail, the county jail would have records pertaining to the defendant. For that reason, the county jail should be served with an expungement order.
What role does the Pennsylvania State Police serve with respect to a person's criminal records?
Because the Pennsylvania State Police is arguably the most important agency involved in the maintaining and distribution of a person's criminal record in Pennsylvania, some may believe that serving all possible agencies may be overkill. This is a flawed approach. Although those who are content in doing things in a less through fashion may not recognize that the need to do so, if a person is trying to clear their records as comprehensively as possible, it is a step that should be taken.
The verification form is a form that "verifies" to the best of the petitioner's knowledge, information and belief that everything in the expungement pleadings is truthful and accurate, under penalty of law. Specifically, the petitioner has to acknowledge that making false statements in the expungement petition is subject to the penalties of 18 PA.C.S.A. Section 4904, relating to unsworn falsification to authorities.
The expungement petition has to include a certification form that "certifies" that the expungement petition and related pleadings were served upon the District Attorney's Office who prosecuted the case. Service can be made by hand delivery or by mail. For Philadelphia expungement cases, the filing of the expungement petition can be done electronically via Philadelphia's e-file system, and service upon the Philadelphia DIstrict Attorney's Office would also be done electronically when the expungement petition is e-filed. An experienced Pennsylvania expungement attorney will understand that some counties have specific filing requirements beyond how many copies of the expungement petition are required in addition to the original. (Of course the number of copies is important also because the filing will be rejected if it does not meet the applicable Pennsylvania county's specific requirements. Lancaster County requires 14 copies, for example, whereas many other counties only require two or three copies.)
As to other specific requirement beyond the number of copies of the expungement petition, some counties, for example, require a copy of the expungement petition to be served upon the court administrator in addition to the applicable District Attorney's Office. When this is the case, and depending on the county where the expungement is being sought, it may be required that the certification form specifically note that the court administrator was served. Another specific county requirement, for example, is that Montgomery County requires the petitioner's attorney to coordinate with Montgomery County court administration to scheduled the expungement court date (a court date that can be determined at a later time whether or not there the Montgomery County District Attorney's Office will consent or object to the expungement request).
Does anything else need to be done in advance of filing the expungement petition?
In some Pennsylvania counties, Dauphin County and Monroe County for example, the formal consent of the District Attorney's Office may have to be obtained in advance of filing the expungement petition with the applicable clerk of courts. An experienced attorney will understand this requirement, and will be able to address the petitioner's case in the most effective manner possible. It is worth noting that this requirement may vary based on the nature of the original criminal case itself. For example, this requirement is only a requirement in some instances if the original case was resolved through the applicable county's Accelerated Rehabilitative Diversion program; also known as "ARD". Again, an attorney who has successfully resolved expungements in the applicable Pennsylvania county will know what needs to be done in this regard. Expunging an ARD case in many Pennsylvania counties will have unique procedural considerations.
What are the filing fees for an expungement in Pennsylvania?
Lastly, but an important consideration nonetheless, is the issue of expungement filing fees. Almost all Pennsylvania counties charge a filing fee for an expungement. Some counties charge much more than other unfortunately, and filing fees can vary depending on several considerations.
The filing fee for all expungements in Philadelphia is $147.00. Chester County charges a $166.00 expungement filing fee and Bucks County charges a $24.00. Montgomery County charge a filing fee that varies based upon the number of expungment orders are being forwarded to any law enforcement, court, or government agencies. For example, if five expungement orders are being forwarded, the fee would be slightly higher than if four expungement orders were being forwarded. Delaware County also has a unique filing fee that is billed to the petitioner after the expungement is granted.
Those filing for expungements in Perry County are in luck - Perry County is one Pennsylvania County that does not charge a filing fee; regarding expungement filing fees in Pennsylvania, this is definitely the exception in and not the rule.
Step # 4 - Serving the District Attorney's Office
After the expungement pleadings are filed with the applicable clerk of courts, the District Attorney's Office that prosecuted the original criminal case must be served. In some Pennsylvania counties, the clerk of courts will serve the District Attorney's Office on the petitioner's behalf. Whether this can be requested of the clerk of courts office should be confirmed prior to filing. A related consideration is that even if the clerk of court will serve the District Attorney's Office, an experienced attorney will understand that at times it may be necessary to get supporting documentation to the District Attorney's Office in an effort to try to have the District Attorney's Office consent to the expungement request rather than object.
Even if I am eligible for an expungement, can the District Attorney's Office object?
Petitioner's should understand that even if a person is eligible for an expungement, the District Attorney's Office that prosecuted the original case can nonetheless object to the request. Pennsylvania District Attorneys can object to a request for an expungement for various reasons. Reasons why a District Attorney's Office may object to an expungement include, for example:
- Even if the expungement petition passes the applicable clerk of courts filing requirements, the applicable District Attorney's Office may regard otherwise and object because of defective pleadings. If this were to happen, amended pleadings can be filed with the court, but this will cause unnecessary delay and is an unnecessary issue if closer attention was paid when initially filing.
- As noted above, if a petitioner's Pennsylvania State Police background check is not included as part of the expungement petition, the District Attorney's Office can object. Also, if the Pennsylvania State Police background check is not dated within 60 days of filing, the District Attorney's Office can object. Lastly, a related consideration is how long it will take the expungement petition, after being filed with the clerk of courts, to be forwarded to the appropriate parties at the District Attorney's Office. Although the Pennsylvania State Police background check has to be dated within 60 days of filing, an effective attorney will do everything possible to make certain that an expungement request goes as smoothly as possible; especially in light of petitioner's need to have such a request be completed in a timely manner. Because of this consideration, and in an abundance of caution, it would be effective practice to have a more recent Pennsylvania State Police background check included (dated within 60 days for example) as part of the expungement petition rather than one dated closer to 60 days.
- A more common potential objection is a disingenuous argument put forth by Pensylvania District Attorneys. When a defendant had several (or many) charges as part of the original criminal case, in many in instances, the defendant will plead guilty to one or several charges and the District Attorney's Office will dismiss, withdraw, or "nolle pros" the other charges. When a defendant later seeks to have the charges that were dismissed, withdrawn, or nolle prossed, the District Attorney's Office will object based on the argument that the defendant previously got a "bargained-for exchange" when the defendant was "allowed" to plead guilty to less (or reduced) charges. Seeking an expungement under such circumstances should generally only be considered when the original criminal case was successfully closed (including the payment of any fines and court costs and the completion of any conditions of the original sentence). Even in such instances, a petitioner can face opposition from the District Attorney's Office. The problem with this argument is that no one had any conversation related as such with the defendant when the original case was addressed; not the prosecutor, not the judge, not the defendant's attorney. Pennsylvania District Attorneys use this argument as a ploy to try to defeat an expungement request that is otherwise eligible. If the District Attorney's Office objects based on this argument, a contested hearing will have to be held where testimony, evidence, and argument has to be presented to the court as to why the expungement should be granted. The District Attorney's Office will present evidence, testimony, and its disingenuous argument as to why the expungement request should be denied. The petitioner's attorney should present the necessary "Wexler" factors to the court. The "Wexler" factors are based on the Pennsylvania court case, Commonwealth v. Wexler, 494 Pa. 325 (1981). The "Wexler" test is a balancing test that the court will use to decide if the reason(s) the petitioner is seeking the expungment outweigh the District Attorney's Office in seeking to have the petitioner's criminal records maintained. The assigned judge will then decide whether or not to grant the expungement.
- A petitioner would be wasting their time and money if they were to seek an expungement if they are no eligible to do so under Pennsylvania law because the request will be denied. That being said, and not to state the obvious, District Attorneys can object to an expungement petition if the defendant is not eligible to seek an expungement either because their charges are not eligible, or they have not satisfied timing requirements (for example, five years have not passed without remaining arrest and prosecution-free in cases involving summary offenses).
Step # 5 - Receiving the Response from the District Attorney's Office
After the expungement petition is served upon the Pennsylvania District Attorney's Office that prosecuted the defendant's original criminal case, the District Attorney's Office will have a proscribed amount of time to decide whether or not they will consent or object to the expungement request. Generally, District Attorney's Offices in Pennsylvania are afforded a minimum of 30 days to decide. In some instances, it takes a District Attorney's Office longer to give its position. In some counties, the petitioner's attorney will be notified of the position of the District Attorney's Office when the decision becomes available. In other counties, the decision is not provided and an experienced attorney will understand to regularly inquire with either the applicable District Attorney's Office, the clerk of courts, or both as necessary.
In Philadelphia, for example, the petitioner's attorney will be notified by e-file in the expungement was filed electronically. If the expungment was filed in person at the Criminal Justice Center located in Philadelphia, PA, the petitioner's attorney will have to check the court dockets at the applicable time to determine the position of the Philadelphia District Attorney's Office. If there is no objection from the Philadelphia District Attorney's Office, the expungement hearing date that is scheduled will not be required to be attended by the petitioner. If the Philadelphia District Attorney's Office objects, a contested expungement hearing will take place in the "miscellaneous motions" courtroom (courtroom 805) of the Philadelphia Criminal Justice Center, known as the "CJC". In Bucks County, the court recognizes that the Bucks County District Attorney's Office may not "respond" to the expungement petition. Accordingly, an expungement hearing will be scheduled either way and it will be necessary for the petitioner's attorney and the petitioner to appear (unless the petitioner is excused in advance for good cause) if there is no response from the Bucks County District Attorney's Office. If the Bucks County District Attorney's Office consents, the expungement hearing will not be necessary. If the Bucks County District Attorney's Office objects, as may be expected, the expungement hearing will be necessary. In Montgomery County, an expungement hearing is also always scheduled. Approximately one week prior to the expungement hearing in Montgomery County, the case will be assigned to the applicable prosecutor who will address the case. Once the case is assigned, the prosecutor will make the decision as to whether the Montgomery County District Attorney's Office will consent or object to the request. If there is no objection, the expungement hearing will be uncontested, and the petitioner will not have to appear. If there is an objection, a contested hearing will have to take place and the petitioner and his or her attorney will have to appear to address the matter with the court.
What happens at a contested expungement hearing in Pennsylvania?
In all expungement cases in which the applicable District Attorney's Office (or any other party) objects, a contested hearing will have to be held where testimony, evidence, and argument has to be presented to the court as to why the expungement should be granted. The District Attorney's Office will present evidence, testimony, and its disingenuous argument as to why the expungement request should be denied. The petitioner's attorney generally will present the necessary "Wexler" factors to the court. The "Wexler" test is a balancing test that the court will use to decide if the reason(s) the petitioner is seeking the expungment outweigh the District Attorney's Office in seeking to have the petitioner's criminal records maintained. The assigned judge will then decide whether or not to grant the expungement.
As to who may oppose an expungement request, in addition to the District Attorney's Office that prosecuted the original case, other law enforcement, court, or government agencies may also have standing to object. For example, the Philadelphia Police Department could in theory object to a petitioner's request for an expungement. This rarely, if ever, happens in practice. The law enforcement agencies that were involved in the original criminal case almost always defer to the applicable District Attorney's Office regarding what position will be taken.
As to the issue of standing in general, the Pennsylvania State Police lack standing to object to an expungement request or an expungement order (see below issue relating to the expungement order being "stayed" after it is granted).
Step # 6 - Distributing the Expungement Order
Whether a contested expungement hearing takes place or if an expungement is granted by the judge without the need for a hearing, the next step is for the expungement orders to be forwarded to all necessary law enforcement, court, and government agencies.
As touched upon in the preceding section, after an expungement order is granted, Pennsylvania law now requires that the distribution of the expungment order be "stayed" for 30 days so that any other party or parties who have standing to object may object. This rarely happens in practice, however.
After the required waiting period passes, the clerk of courts in the Pennsylvania county where the expungement was sought is responsible for forwarding the expungement orders. In all Pennsylvania expungement cases, the Pennsylvania State Police will receive a copy of the order. The Pennsylvania State Police is arguably the most important repository of a person's criminal records in Pennsylvania. The reason being that if an employer, government agency, academic institution, the military, or any other party that may be checking to determine if a person has a criminal record in Pennsylvania, the Pennsylvania State Police most likely will be the agency that is contacted. In addition, the Pennsylvania State Police will forward the expungement order to the Federal Bureau of Investigation (FBI) to request that the FBI update its records. Because the FBI is a federal agency, it is not bound by Pennsylvania law, and therefore, is not required by law to expunge a person's records. That being said, as a courtesy, the FBI will generally update is records to make a person's Pennsylvania arrest and criminal case information not available to the public, employers, schools, and related parties.
Will my fingerprints that are on file with the FBI be expunged?
A related considerations is the issue of fingerprints that are maintained by the FBI. Although a Pennsylvania expungement order will require that all Pennsylvania law enforcement, court, and government agencies that are served with a copy of the expungement to clear a person's fingerprints, the FBI may maintain fingerprint records. When this occurs, FBI records may indicate that a person's fingerprints are on file, but that no other information is available. This may be the case even after a Pennsylvania expungement is granted. Nonetheless, a Pennsylvania expungement is the most realistic and most effective step in ensuring that additional criminal record information is not made available by the FBI. For example, when a person is arrested and charged with a crime in Pennsylvania, the person will be required to be fingerprinted. Those fingerprint records will be maintained by the law enforcement agencies involved in the defendant's arrest and criminal case. These fingerprint records are forwarded to the FBI while the criminal case plays out. If the defendant goes to trial and is found not guilty for example, the FBI will not know as such because this information is not necessarily forwarded to the FBI in the same manner that the defendant's fingerprints. A Pennsylvania expungement order will make certain that FBI to be updated as to what happened regarding the the original criminal case.
Should everyone involved in my criminal case receive a copy of the expungement order?
As to other Pennsylvania law enforcement, court, and government agencies that need to be served, the clerk of courts will forward expungement order to all agencies included in the expungement petition. Depending on a person's original criminal case, the following agencies will generally need to be served for a person's records to be cleared:
- The District Attorney's Office that prosecuted the original criminal case
- For cases that did not take place in Philadelphia, the magisterial district court which presided over the case
- The police department that arrested the defendant
- The county probation department if applicable
- The county jail if applicable
The clerk of courts is responsible for clearing the court of common pleas' records. In Philadelphia, the only agencies that will be served are the Philadelphia Police Department and the Pennsylvania State Police Department.
How does an expungement work if my probation case was supervised by more than one county?
A critical consideration are cases that were supervised by more than one county. For example, if the original criminal case was took place in Westmoreland County, but the defendant lived (or moved to) Berks County, both the original criminal case information and the criminal records created by the case's transfer to the supervising county have to be petitioned to be expunged. In the above example, Westmoreland County is the "originating" county and Berks County is the "supervising" county. The supervising Pennsylvania county will create a "miscellaneous docket" (an "MD" docket). This miscellaneous docket and any related records have to be cleared if a person wants to clear their criminal records as comprehensively as possible. This is not an "option," it is necessary to clear all records related to the case. The supervising county's records will generally not be as extensive as the originating county because certain agencies would have been involved in the supervising county. For example, a police department in Berks County would not have been involved in the defendant's case in the above example because the defendant was arrested in Westmoreland County. If the defendant moved yet again while being supervised, to Centre County, for example, the Centre County "MD" docket information and related records would have to be petitioned to be expunged.
The interplay between an originating county and a supervising county can be complex, however. In cases where the originating county may object to a request for an expungement, the supervising county may defer to the position of the originating county. If a petitioner has the benefit of time, there is an arguable benefit to filing in the originating county first and determining the position of the District Attorney's Office of the originating county. If the District Attorney's Office in the originating county does not object, or if it does object and the petitioner is nonetheless successful in having the expungement granted, this information can be brought to the attention of the District Attorney's Office of the supervising county (although they most likely would determine as such on their own) in an effort to make certain that the District Attorney's Office of the supervising county does not object (in light of what took place in the originating county). Ultimately, if a contested expungement hearing is going to take place in the originating county, it should be scheduled before a contested expungment hearing in the supervising county. An experienced attorney will be able to coordinate proper scheduling with when the filings are done in the respective counties, and as necessary, by coordinating with the court administrations of the respective counties.
How long does the expungement process take in Pennsylvania?
From start to finish, the expungement process will take 4 - 6 months under most circumstances. This means that a person's records should be cleared by all applicable law enforcement, court, and government agencies within 4 - 6 months. The Pennsylvania State Police is especially timely in clearing a person's criminal records - Once the Pennsylvania State police receive an expungement order, they generally process the matter within two weeks and the person's criminal records will be cleared from Pennsylvania State Police databases.
Pennsylvania Expungement Attorney | Pennsylvania Attorney to Clear Criminal Record
Having a criminal record can have a major impact on a person's life, whether they reside in Pennsylvania, anywhere else in the country, or even overseas. Although Pennsylvania expungement law is not lenient, there are many circumstances where a person will be able to get their entire criminal record cleared, and if that is not possible, it may be of some benefit to have whatever charges that are otherwise eligible cleared.
Attorney Joseph D. Lento has helped countless clients throughout Pennsylvania clear their records so that they can move forward in life. He knows the procedural requirements and the unique approach that many Pennsylvania counties have in making certain that an expungement Whether you or your loved one is a college student, a professional with potential licensing concerns such as nurses, doctors, or teachers, law enforcement, or anyone else that may have made a mistake in life, Joseph Lento can help - Contact him today.
Attorney Joseph D. Lento is experienced with the expungement process throughout Pennsylvania and has helped clients statewide put past mistakes behind them.
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