Will an Expungement Enhance a Future Criminal Penalty?

Interviewer: How about if you have something expunged and you’re accused of another crime and you are convicted of it? Even though the previous charge was dropped and expunged, would it still enhance your sentencing or would it cause you more harm because you have even been accused before?

Monica: No. In theory it wouldn’t. In terms of an actual enhancement, there are some crimes that can be enhanced if you’ve ever been convicted before, but that’s what counts, the conviction. For example, if you had a couple of petty thefts and you committed a third petty theft, they can upgrade it to a felony, but only if there was conviction.

In the scenario that you just laid out, if charges were dropped, which would be the only reason why you’d be able to expunge it in the first place, and you get arrested on basically the same charge, the state attorney’s office may be able to see that you had a previous case. However, they can’t really officially use that against you. They can’t say in sentencing, “Oh, he’s gotten arrested for this before and it got expunged.” That, in my opinion, would be an unlawful argument to make. You can really only punish people for the crimes that they have actually been convicted as opposed to just arrested on.

Interviewer: What about if you have a sealment? That is a little bit different, or not?

Monica: Sealment, for all intents and purposes, is really almost to the same thing. The only official difference is that even with a sealment the public’s not going to have access to it. Certain government entities, like the ones I mentioned before, in terms of the court and other agencies like that, maybe Department of Children and Families, Department of Education, they will be able to see a sealed record in its entirety.

Some Departments Will Have to Obtain a Court Order to View Your Record

If that record is expunged, those entities that I described, such as the Department of Education, will be able to see that there is something on your record but they won’t be able to see exactly what it is without a court order. What they will likely receive is some sort of statement on the background check or something like that saying, “Criminal information has been expunged from this record.” In order to actually see what it was they would have to get a court order and have a judge sign off on an order to open it up to see exactly what it is. That’s the practical difference.

By The Ladan Law Firm, P.A.