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Expunging a Criminal Conviction
An individual convicted of a criminal offense is said to be under a legal “disability.” A criminal conviction can have many collateral consequences or “disabilities." These can take the form of employment and personal consequences. Many employers will not hire individuals who have a criminal record. Criminal convictions (generally felonies or other criminal offenses involving “moral turpitude”) can result in the loss of a professional license or be a basis to revoke immigration status or lead to deportation. An individual convicted of a felony offense loses certain civil rights including the right to vote or own a gun and may be subject to registration.
In general, criminal convictions can only be set aside through an executive pardon by the governor or on the federal level by the President. A small number of criminal convictions are pardoned each year. The pardon process is separate from the court procedure system known as expungement but the legal effects are very similar.
Expungement is an administrative and judicial process under which records of certain criminal convictions are either stricken from the public record or are separated from the records available to members of the public doing a criminal background check. Kentucky law also provides for the segregation of criminal records following the dismissal of criminal charges. Records that are segregated do not appear in the public records that are available for public search.
Current Kentucky law on expungement is codified under KRS 431.078. As that statute currently reads, only misdemeanors, violations, and traffic citations can be expunged. A felony conviction cannot be expunged under current Kentucky law. But note, successful completion of diversion, whether it is for a felony or misdemeanor offense may be able to be expunged, presuming your criminal record otherwise makes you eligible. Many, but not all, entities do not perceive diversion as an actual conviction, assuming it was successfully completed.
Under Kentucky law, the lowest level of any criminal offense is a violation. Most traffic offenses are classified as violations. Kentucky recognizes two classes of misdemeanors, Class A which can include a sentence of up to 12 months in jail and Class B which can include a sentence of up to 90 days in jail. Kentucky recognizes at least four classes of felonies classified as A, B, C, and D, in rank of most severe to the least severe. Mini-D felonies also exist in some circumstances.
Prior to filing expungement, a certification of criminal record must be obtained from the Kentucky State Police. That certification is filed along with an application for expungement. Assuming that the certification shows that the criminal record is eligible to be expunged, the court after reviewing the application can enter an order expunging the conviction.
A bill is currently pending in the Kentucky General Assembly to modify and amend the expungement statute to allow Class D felonies to be expunged. That law has been pending for several legislative sessions. In 2015, House Bill 40 passed the Kentucky House of Representatives, but it was amended in the Kentucky Senate and referred back to the House. The amended bill has been re-filed and will be taken up in January by the 2016 General Assembly. Unless the General Assembly is distracted by other and more important budgetary concerns, this bill should become law.
If that law passes, then certain, non-violent Class D felonies will be subject to expungement five years after completion of the sentence. This change in the law is supported by a broad coalition of business, religious and civil rights group. Those groups recognize that criminal records can block job prospects long after those convicted of crimes have served their sentences. The groups in support of this change in the law recognize it as an issue of economic opportunity and not solely a civil rights matter. Kentucky’s current governor indicated he would support expanding expungement when he was running for office. The Kentucky Administrative Office of the Courts estimates that more than 100,000 Kentuckians could be eligible for expungement under this proposed new law.
If you have questions regarding the procedure for expungement, please contact our firm and we will be glad to assist you. If you have a Class D felony conviction, you should closely follow the progress of House Bill 40 as amended, as it works its way through the Kentucky General Assembly in 2016.
Author: Gary J. Sergent
