Episode Transcript
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Speaker 0 (00:00):
Hi and welcome back
to another episode of what to
expect when you're arrested.
I'm your host, Sean Hendrickson.
I'm a defense attorney here atthe Sean Hendrickson Law Firm,
where we help good people likeyou avoid the devastating
consequences of criminal charges.
Today, we're going to betalking about cleaning up your
record after your case is over.
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Before we get to that, we dohave a free download for you.
If you click in the show notes,we've got a link for five
things you should be doing rightnow If you've been arrested.
You can click on that link andwe will get that sent right out
to you.
Now, when most people come to me, they want to ultimately get
their case dismissed.
Almost everybody wants to gettheir case dismissed, and that's
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awesome.
That's what I want for yourcase also is I'm trying to get
your case dismissed also.
But to get the full effect ofthat dismissal after your case
is over and after you get thatdismissal or if you're eligible
to clean up your record, someother how you do need to move
forward with cleaning up yourrecord, and there are a couple
of ways to do that, which we'lltalk about in just a moment.
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Most of you know, or some ofyou may know that when I was
younger I was actually arrestedand charged with DWI and
thankfully my case did end upgetting dismissed.
I was obviously very happyabout that.
But I had no idea that since mycase was dismissed, that I
could go in and get my recordcleaned up.
So every time I went to goapply for a job or when I was
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applying for law school, I'dalways have to check off that
box saying I'd been arrested andthen telling this embarrassing
story, not knowing how it wasgoing to affect me either
getting that job or getting intoschool.
And I could have avoided all ofthat if my attorney had just
let me know that, since my casewas dismissed, that I could get
my record cleaned up.
And so now I make it a point tomake sure that if somebody is
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eligible to get their recordcleaned up later on, that they
know that they can do that andthat they do need to move
forward with that.
It doesn't happen automatically, but to get that full effect of
that dismissal or of deferredadjudication you do need to move
forward and get that taken careof.
There are two ways in Texas toclean up your record, depending
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on the outcome of your case.
The first one we're going totalk about is an expunction.
It's kind of a gold standard ofcleaning up your record, and an
expunction is an order from thecourt to every government
agency that has any record ofyour arrest that they need to
destroy those records.
So any police reports, the DA'sfile, anything the court or the
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clerk has, all of that needs tobe destroyed.
And the other thing that itdoes, in addition to making them
destroy those records, is italso gives you the opportunity
to deny ever having beenarrested for this.
So that's going to make surethat it doesn't show up on those
background checks wheneversomebody does a background check
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on you and you don't have tovolunteer the information when
you're filling out thatapplication, and that means that
it shouldn't follow your ownafter that expunction is taken
care of and after all of thoserecords get destroyed.
So who's eligible to get anexpunction?
And there are three maincategories.
There's a number of other waysto do it that are much less
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common, but the three mostcommon ways to get an expunction
are, first of all, if your casegets dismissed.
If your case is dismissed,there's one other thing you have
to wait for.
You've got to wait for thestatute of limitations to run.
Once your case is dismissed andthe statute of limitations is
run, which is usually two orthree years in most cases, then
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you'd be eligible for anexpunction.
Another common way is if yousuccessfully completed a
pret-trial diversion program,you'll be eligible and as soon
as you complete that programyou're eligible for the
expunction.
You don't have to wait for thestatute of limitations in that
case.
And the other way is if you wina trial, if your case actually
goes to trial and if you'refound not guilty, then you're
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immediately eligible for anexpunction and you don't have to
pay any fees.
So most situations you're goingto have to pay filing fees in
order to move for thatexpunction.
But if you win a trial youdon't have to pay any filing
fees and there's a kind of aquick way to get that taken care
of in that situation.
The process for getting anexpunction is the first thing
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we're going to do is file apetition with the court letting
them know that you are seekingan expunction and letting them
know why you qualify for anexpunction.
So whether you successfullycompleted pre-trial diversion or
your case is dismissed orwhatever, we're going to explain
to the court why you qualifyfor the expunction and when we
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file that.
We're going to file it with thecourt, but we're also going to
get a copy over to the districtattorney's office and we're
going to get a hearing set onthat case.
Usually about a month and ahalf out is about how long it's
taking in San Antonio for thathearing date.
When that hearing date comes upusually about a week beforehand
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we will get a copy or an emailfrom the district attorney's
office letting us know whetheror not they are agreeing with
the expunction.
In almost all situationsthey're going to agree to it
because before we file anythingwe're going to make sure that
you do qualify and the DA'soffice is basically just kind of
double-checking our work makingsure that you do qualify for
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that.
And if DA's office is basicallyjust kind of double checking
our work making sure that you doqualify for that, and if you do
, then they're most likely goingto tell us that they're
agreeing to the expunction, wewill send them over an order
that they will sign off on.
I'll sign off on it and thenI'll take it up to the judge for
the judge to sign off on italso.
Once the judge signs off on it.
A copy of that order goes out toevery government agency that
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has any record of your arrest,telling them to destroy their
records.
So this part of the process cantake a little while because
there are some agencies thathave a little bit of a backlog.
I know the Sheriff's Departmentand the District Clerk.
Both have a pretty significantbacklog and the district clerk
both have a pretty significantbacklog.
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So it's taking them a fewmonths to actually follow
through and destroy any recordsthat they have of your arrest.
So it's important to make surethat you're not waiting until
the last minute.
You're not waiting until you'reactually looking for a job to
move forward and look for anexpunction.
This is something you want todo as soon as you're eligible,
so that when you do look for ajob or when you do want to make
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sure that this isn't showing upon a background check that it's
already taken care of.
There are a couple of thingsthat an expunction won't take
care of.
We will notice the FBI and havethe expunction serve to the FBI
, but an expunction is really afunction of state law and
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ultimately, right now, thefederal government is ignoring
expunctions essentially.
So if you have any sort ofmatter that's related to the
federal government where they'regoing to be doing a background
check on you.
So if it's military, if it'simmigration, if it's anything
like that, they're still goingto be able to see this, even
after you've got the expunction.
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So it's important to make surethat if you are filling out any
paperwork that you probablystill want to disclose it and
just disclose also that youreceived an expunction.
Unfortunately, right now it'snot going to make that go away.
The other thing it's not goingto make go away is if there was
anything that was in the mediaor something like that in the
newsroom.
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The other thing that it's notgoing to make go away is if
there was anything in the media,If your trial was in the
newspaper or on TV or reportedanywhere online, then that
information is still going to bethere.
We can't go back and make themtake it out of the newspaper or
anything like that.
Unfortunately, that stuff isstill going to be there.
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The other way to get your recordcleaned up is through an order
of non-disclosure or, as mostpeople refer to it, getting your
record sealed, and this is alittle bit different from an
expunction.
The main difference in what itactually does is, again, it's
going to be an order from thecourt that goes out to all of
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those government agencies thathave any record of your arrest.
But instead of that ordertelling them that they need to
destroy those records, like inan expunction, it's going to
tell them that they can't givethose records out to most people
doing background checks on you.
So there are still someagencies that are still going to
be able to see it, but ifyou're just like getting a job
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with a private employer or, youknow, getting housing or
something like that, it's notgoing to show up on most of
those.
In most situations it's goingto do essentially the same
things that an expunction doesit's going to keep it from
showing up on most backgroundchecks and this also gives you
the ability to deny ever havingbeen arrested for this, and so
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it's going to keep it fromshowing up on those background
checks and you don't have tovolunteer the information.
So for most situations, this isgoing to be essentially just as
good as an expunction.
For most people, there are twoways that you will be eligible
for an order of nondisclosure orto get your record sealed.
The first and the most commonone of those is if you ended up
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taking a deal and got deferredadjudication on your case, ended
up taking a deal and gotdeferred adjudication on your
case, then once you successfullycomplete deferred adjudication,
you should be eligible to getyour record sealed.
On some cases, if it's a felonyor certain types of
misdemeanors, like an assaultcase, then you're going to have
to wait for a certain waitingperiod to go through before
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you'll be eligible, buteventually in most cases you
will be eligible.
The main exception to thisthrough before you'll be
eligible, but eventually in mostcases you will be eligible.
The main exception to this isif you had a family violence
case and you ended up ondeferred adjudication, you will
not be able to get your recordcleaned up after that.
If the judge made an affirmativefinding of family violence, If
you worked out a deal wherethere was no affirmative family
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violence, then you probably willbe able to get your record
cleaned up.
But if there was that finding afamily violence, then you're
not going to be able to get yourrecord cleaned up, even though
it was deferred adjudication.
The other type of situation isthat there are some cases, like
a misdemeanor, DWI where even ifyou did get a conviction, then
you will still be eligible toget your record sealed through
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that order of non-disclosure.
The other situation whereyou'll be able to get your
record sealed is if you got aconviction for a misdemeanor,
like a DWI and some othermisdemeanors, you may still be
able to get your record sealed.
It's going to depend on a fewmore factors and it gets a
little complicated, but if youhave any questions about whether
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or not you are eligible, feelfree to give us a call and we
can help figure out whether ornot you can get your record
cleaned up, either through anorder of nondisclosure or
through an expunction.
The process on this is a littlebit different.
Instead of filing a petition inthe district court and it being
like a civil case, Instead offiling a petition in the
district court and it being likea civil case like on an
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expunction, on an order ofnondisclosure we're just filing
it into the same case that we'retrying to get sealed and so
it's going to go in front of thesame judge, but other than that
it's going to be pretty similar.
We're going to file that motionwith the court, we're going to
get a copy of that over to theDA's office and if they agree
that you do qualify for gettingyour record cleaned up, then
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they're going to agree to that,and then we're going to take
that to the judge for the judgeto sign off on, and, again, that
copy goes out to all of thosesame government agencies,
telling them not to give thatinformation out to most people
doing background checks on you.
What it won't cover, though, isall of those government
agencies, again, are going tohave those copies.
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So the police department, theDA's office, the court, the
clerk all of them are stillgoing to have those copies of
any documents they had relatedto your arrest or related to
your charge, so they're stillgoing to be able to see that.
So if you get pulled over bythe police and they're running
your license when they do that,they're going to be able to see
everything that you werearrested and charged with before
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, so it's still going to show upthere.
If you ever charge withsomething in the future, the
DA's office is still going to beable to see that old charge,
and they'll be able to use thatwhen deciding what kind of offer
to make on any new cases Ifyou're trying to get licensed as
an insurance agent, a nurse, adoctor, a lawyer, anything like
that then those licensingagencies are still going to be
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able to see it.
Same with a bank If you go towork for a bank and they do a
background check on you, they'regoing to be able to see it, and
so there's a list of people whoare still going to be able to
see it.
But most private employers andmost people doing background
checks for housing and for otherreasons are not going to be
able to see it.
So I'd say, about 80% of thetime, an order of nondisclosure
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is just as good as an expunctionand so if you do qualify for
that because you completeddeferred adjudication or you've
got a conviction for amisdemeanor, DWI or something
like that, you should still moveforward with that because in
most situations it's going to bejust as good as an expunction.
I hope all of this informationwas helpful for you and if you
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do have any questions aboutwhether or not you qualify to
clean up your record or theprocess, or if you'd like to
move forward with that, give usa call at 210-775-0852.
Or there's a link in the shownotes where you can schedule a
consultation with us.
We'd be happy to answer anyquestions that you have and
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again, to kind of help youevaluate your case to see if you
are eligible to get your recordcleaned up and to see if it
makes sense for you to go aheadand go forward with that.
I hope that you have a greatday.
If you do have any questions,just feel free to give us a call
.