We’ve all heard the commercial: “You can’t put anything on the internet if it isn’t true.” And while, sensibly, that is an incorrect statement, it identifies an ever growing issue: Nothing is private in today’s society. We live in a climate where social media takes precedent to actual information and the first hit on Google seems to be the most appropriate source of information. Considering that, how could it be possible for an individual to move beyond some of their most embarrassing incidents, like a past criminal record?
Ohio law, specifically R.C. §§ 2953.31–.61, provides a mechanism where individuals can apply to a sentencing court (or, the court where he/she was charged and/or convicted of a crime) to have a criminal record sealed. Though elsewhere termed “expungement”, Ohio calls the process “sealing” a criminal record. Sealing a record is not available to all criminal defendants, and is subject to a number of restrictions. Though, it may be an option if you were convicted of a misdemeanor, some felonies, convicted as a juvenile, and it may apply in the absence of a conviction, like for an arrest or indictment.
Essentially, the process in Ohio is a two-step dance. First, you have to determine if you are eligible under the statute. Recently, in October 2018, Ohio expanded the law for determining if someone is eligible to seal their criminal record. Previously, to qualify for having your records sealed, an individual could have no more than: one felony conviction, no more than two misdemeanor convictions, or no more than one felony and one misdemeanor. This essentially renders anyone who was convicted more than twice in their life from ever being eligible to move beyond their past criminal record. While this language remains in the statute, it has become much more expansive, likely indicative of the legislature’s intent to begin a reform of the criminal justice system.
As it stands today, the statute permits an individual to apply to have his/her record sealed if he/she has up to five felony convictions and what appears to be an unlimited amount of misdemeanor convictions. However, the statutory scheme continues to limit the types of crimes that qualify to prevent a windfall of possible expungement proceedings after a conviction of a serious offense. None of the convictions can be for an “offense of violence” or a “felony sex offense”. Thus, while the legislature is showing an intent to expand the ability to seal your past, it remains wholly aware of the need to maintain certain criminal records. To expand on this, the statutes have also maintained a specific list of crimes that are a non-starter – if you get convicted, it is staying on your records.1
Sealing a criminal record is also subject to a time limitation. Depending on the conviction, an individual will have to wait from one to five years before being eligible to have a criminal record sealed. The clock starts ticking after a final disposition, which includes finishing any kind of community control sanctions (commonly referred to as probation) and paying any outstanding fines and court costs.
Then comes part two – the eligible offender must apply to the sentencing court and essentially ask the court to seal his/her record. However, this is entirely a discretionary standard left up to the trial judge. After filing, the court is required to take certain actions, though. First, it must set a date for a hearing on the application, as well as notify the prosecutor who is permitted to object to the application. Second, the judge must then analyze a series of factors before coming to a decision, which include determining whether it is in the public’s interest to maintain the record, whether or not criminal charges are pending against the applicant, if the applicant has been rehabilitated to the satisfaction of the court, and whether the applicant’s interest in having the conviction sealed outweigh a legitimate government interest in maintaining the records.
Then, if the judge rules in the applicant’s favor, the official records are sealed. Importantly, those records are treated as if they never happened, allowing the applicant to move forward without fear of the records, possibly hindering future, needed employment opportunities. And yet, while legally the criminal record ceases to exist, the facts remain, meaning third-parties who have obtained information related to a now-sealed criminal record are not under the same obligations as the government to scrub their memories of this information. Given today’s media-obsessed culture, this is likely going to become a growing issue for individuals who have sealed their criminal record.
Given this information, sealing a criminal record is not a “one size fits all” area of the law. It is recommended to consult an experienced lawyer in ascertaining whether or not you are eligible to seal your past.