Expungement & Shielding Training Maryland Volunteer Lawyers Service

Expungement – What Is It? - An arrest or a court case, even if you are not convicted of a crime, is a public record It will show up on any background check, public court records May impact getting a job, apartment, loan, credit, child custody - With an expungement, arrest or criminal records are destroyed or sealed Becomes unavailable to the public, employers and background check agencies Removes both court record and criminal record May be available to some government agencies, police, military, etc.

Relevant Statues - Expungement - Shielding - Juvenile Expungement Criminal Procedure – 10-101 to 10-109 - Shielding Criminal Procedure – 10-301 to 10-306 - Juvenile Expungement Courts and Judicial Proceeding – 3-8A-27.1

What Can Be Expunged? - Nolle Prosequi - Stet – 3 year waiting period Ex. Good cause motion after year 1 Need right candidate. #1 factor = employability. Other factors – limited record, rehabilitation program, mitigating circumstances - Probation Before Judgement (PBJ) – 3 year waiting period or completion of probation, whichever longer No subsequent conviction within 3 years DUIs can’t be expunged Good Cause Exception - Release Without Charge (RWOC) - Not Guilty - Dismissal

What Can Be Expunged? (continued) - Juvenile Transfer – charged as adult, transferred to juvenile Adult charge can be expunged Separate process for juvenile expungement - Transportation Article – 27-101 Jailable traffic offenses - Civil Citations – If could have been charged as a crime

Eligible Convictions - Nuisance crimes – urinating in public, panhandling, drinking alcohol in public, vagrancy, loitering, using transit w/out payment, sleeping in public 3 years from conviction or sentence, whichever longer If found NCR (not criminally responsible), then trespass, telephone misuse, disturbing the peace - No Longer a Crime – ex. marijuana possession less than 10 grams, no longer a crime Case search – won’t indicate amount Police department and States’ Attorney – unclear about plan May need to get case file for drug analysis Challenge – old cases – Annapolis or destroyed - Transportation Article – 7-705 All except Section 6 – explosives, acids, concealed weapon, dangerous articles

What Can’t Be Expunged? - Most convictions Only exceptions – nuisance crimes, no longer a crime, transportation & MTA, citations - Pending criminal proceeding Any request for expungement filed while there is a pending criminal action will be denied Includes first year of stet, completion of probation before judgment or any other probation terms - Unit rule If multiple charges in one case, and any of the charges can’t be expunged then none of the charges can be expunged. Exception – Conviction of a crime that is no longer a crime – which can be expunged Ex. Protesting – one case with multiple charges: disturbing the peace (nol pros), inciting violence (stet), second degree assault (guilty). Because of guilty for one action, the nol pro and stet can’t be expunged either - Probation Before Judgment (PBJ) If another conviction within 3 years of getting PBJ, then PBJ can’t be removed Minor traffic convictions (non-incarcerable) do not count for the subsequent rule – Transportation Article 27-101 Violation of probation (VOP) should not be considered a subsequent conviction Oct. 1 - nol pros & stets with subsequent convictions can be expunged.

How to Expunge Record - File form with court where decision was made (District or Circuit Court) One form for each case/arrest/criminal activity Petition – Form 4-504.1 – CC-DC-CR-072 File where case had final decision – District or Circuit If transferred from District to Circuit – file in Circuit, but list case numbers for both District Court will indicate “forwarded to Circuit” or “prayed jury trial” File in the county where case was decided Check with clerk to determine where to file Baltimore City – Wabash – 4 copies Each petition is $30, unless request filing fee waiver or assisted by legal services organization Statement in Support of Waiver of Prepaid Costs by Clerk (Md. Rule 1-325) – CC-DC-088 Form available – http://mvlslaw.org/attorneyresources/ http://mdcourts.gov/courtforms/joint/ccdc088.pdf No filing fee for Not Guilty or dismissal

Search Tips - Maryland Judiciary Case Search Start broad, then narrow Name – full name, middle initial DOB Address Look for Jr. v Sr. Aliases Choose “Defendant” Limit search first to Circuit Court, then do District Court Use date range Be aware – information may be missing or wrong Case Search only goes back to 90s CJIS – only will include items where individuals was fingerprinted Ex. won’t show traffic violations, civil citations

Is Case Search Enough? - Case Search will capture most records – any activity that went through judicial process - Criminal Justice Information System (CJIS) – will include any activity that didn’t go through judicial process To obtain CJIS, the individual must go between 8:30 a.m. and 6:00 p.m., Monday through Friday, and the 1st and 3rd Saturday of the month from 8:00 a.m. and 4:30 p.m. to Reisterstown Plaza, 6776 Reisterstown Road, Suite 102, Baltimore, Maryland. Cost is $38.00 payable in money order, certified or personal check to CJIS-Central Repository. Cash is not accepted. - General recommendations If client has a few items on record and has a good understanding of what interaction they’ve had with the police/judicial process, generally don’t need CJIS. Question to ask – have you had any other touches with any police? If client has many items on their record, request that the individual get a CJIS. But attorney can proceed with filing petitions for all expungable dispositions identified through Case Search. If individual fails to obtain CJIS, notify client that expungement process may not be comprehensive

Filing Tips http://mdexpungement.com/ Put in case number, will determine if case is likely expungable Will assemble petition documents for court submission Only uses information on Maryland Judiciary Case Search (casesearch.courts.state.md.us) Will not include non-case information like arrests with no prosecution CJIS report required for full listing of arrests and dispositions - Criminal Justice Information System Not all cases require CJIS

- No limits on expungement filings. - Old fling forms Mark through “I have not been convicted of any crime” for Nol Pros, stet (MdExpungement.com already does this for you) PBJ – “Since the date of disposition” needs to be changed to “Within three years of the date of disposition” Crime no longer a crime – not on form Write in or attach addendum to filing? What we know – Court likes its form to be used without altering it Updated court forms isn’t yet available - No limits on expungement filings. Petitions for a client don’t have to all be filed at the same time

- Client listed as co-defendant - Case – Criminal v. Traffic - When completing the form, use caution to not include incriminating information Form is under oath State’s Attorney reviews each form Having item expunged doesn’t mean State’s Attorney can’t prosecute Ex. Received a nol pros for disturbing the peace. In expungement form, you mention that you discharged a firearm and shot someone. State’s Attorney could use that information to re-open case and prosecute. Generally, just list what the crime was that you were charged with - Client listed as co-defendant When expungement order is issued in client’s case, it should remove listing as co-defendant as well - Case – Criminal v. Traffic Criminal – multiple charges with one case number Exception – when case is transferred from District to Circuit, sometimes listed as multiple case numbers. Use tracking number. Traffic – one charge per multiple case numbers When filing – one petition with all case numbers in related matter Reminder – unit rule applies to traffic cases even if spread out over multiple case numbers

General Waiver and Release - Form 4-503.2 – CC-DC-CR-078 Nol Pros, Not guilty, Dismissal, and Pardon If less than 3 years from disposition date – requires General Waiver form Waives any claims individual might have against police, etc. Best practice – do not advice client on whether they should sign the waiver Draft form – Statement of Understanding of General Waiver and Release

Once Filed - Clerk serves States’ Attorney and police department - States’ Attorney has 30 days to object If no objection during that time, right to object waived If objection, a hearing is scheduled - Once form is filed with the court, it is supposed to take 90 days to issue order Baltimore City – 4-7 months - Once order issued, clerk sends to States’ Attorney and all record custodians Court removes in approx. 24-48 hours Agencies have 60 days Are required to send Certificate of Compliance

Next Steps - Check records Case Search – cases, co-defendant Client may want to get another CJIS report to confirm removal - Always keep a copy of your court records and expungement order. Court destroys records once they are expunged. Will be unable to get copies.

Removing Other Records - For RWOC (release without charge) Must file request with police department There is no court record From Oct. 1, 2007 forward – these should be automatically removed Arrests prior to then – not removed without expungement

Minor Traffic Offenses Must file request with the Motor Vehicle Administration Governed by Section 16-117.1 of Maryland Transportation Section Applies only to minor traffic offenses Form: Special MVA form AJ-058(11-12) Fee: There is no fee for requesting a MVA expungement. MVA will automatically expunge your driver record 3 years after a conviction if Not convicted of another moving violation or criminal offense involving a motor vehicle during the previous 3 years, and Your driver’s license has never been suspended or revoked; and You have never been convicted of, or been granted probation before judgment (PBJ) for DUI or failing to remain at scene of accident resulting in injury or death.

Manual Expungement if you don’t qualify for automatic: Alcohol offenses are never eligible for expungement. If you have received an alcohol offense, you must wait 10 years from your last moving violation conviction date or suspension withdrawal date to become eligible to have other driving record entries considered for expungement. Any revocation or, two or more suspensions necessitates a 10 year wait from your last moving violation conviction date or suspension withdrawal date. Any single suspension requires a 5 year wait from your last moving violation conviction date or suspension withdrawal date. Any current suspension, revocation, restriction, or pending motor vehicle charge(s) will result in ineligibility. Moving violations without suspensions, revocations, or alcohol offenses are eligible 3 years from your last moving violation conviction date.

Red Flag Issues - Immigration issues – use caution Can create issues between state and federal records Requires certified multiple copies What documents need to be certified - Third Party Businesses Limitations of expungement - Client disclosing arrest/criminal on employment application Once expunged, client does not have to disclose But some employers are still going to have access – military, security clearance, etc.

Shielding - Can only use once 1 court (district or circuit) and one county - Specific nonviolent misdemeanor convictions Disorderly conduct Disturbing the peace Failure to obey a lawful order Malicious destruction of property under $1000 Trespass – posted property Drug/paraphernalia possession Prostitution Incarcerable driving offenses Driving without a license, on a suspended/cancelled/revoked license, or uninsured - 3 year waiting period AFTER completing any parole, probation, etc.

- 30 day objection period – - Court forms - Same as expungement File in court where final disposition No pending activity Unit rule applies Subsequent conviction rule applies – only shieldable if subsequent conviction is shiedable - 30 day objection period – States Attorney and/or victims

Juvenile Sealing & Expungements - Why expunge – Records are not automatically sealed Record will show up as “sealed”, better to expunge and entirely remove, if eligible - Factors 18 or older and 2 years since juvenile action Adjudicated delinquent only once No conviction since juvenile case No pending delinquency or criminal No offense that if an adult would be a felony, violent crime or 4th degree sexual offense Not required to register as a sex offender Didn’t involve firearm in crime of violence Fully paid all restitution; and Nol pros, dismissed, didn’t find allegations to be true, or not held within 2 years after petition filed

- Court also considers Individual’s best interest Individual’s stability in community Safety of public

Pardons - Very limited Granted by Governor and discretionary MVLS and other legal service providers do not assist with pardons

Matthew Stubenberg 443-451-4066 mstubenberg@mvlslaw.org Susan Francis 443-451-4084 sfrancis@mvlslaw.org