Sonja R. Porter Attorney At Law

About Expungement

FIRST: “RECORD” DEFINED

It’s important to know which Records can be expunged because there are different types of “record” involved in background checks. Below is a brief description of each type of record commonly sought to be expunged.

Criminal Background Check/Arrest Record: this record is maintained by each state and the federal government. In Oklahoma, the Oklahoma State Bureau of Investigation (OSBI) maintains a record of all arrests and warrants that are reported to it. Federal arrests and cases are maintained by the FBI. The expungment of each record is governed by the individual state and federal laws. So, in Oklahoma, only OSBI’s record can be expunged. Only cases that qualify for a full expungment can be completely removed from the OSBI record.
Court records: These are records maintained by the court clerk for the court where the case was filed. Each court, including municipalities, has a court clerk. Some of the court clerks make their records available online. “Expunging” these records results in their being sealed and not accessible by the public. A person who successfully completes a deferred sentence is entitled to his court records being sealed though a simple motion. All other criminal records can be sealed if they qualify for a full expungement.

Police Department/Jail Records: Each police department and jail maintains its own records regarding an arrest. These records may be accessible to some degree via the Open Records Act. These records can be expunged if the arrest is eligible for a full expungement.

Driving Record: Driving records are considered administrative records and not criminal records. Therefore, anything posted on one’s driving record cannot be removed through the expungement procedures. Rather, in Oklahoma, traffic offenses cycle off the public record after three years.

SECOND: “EXPUNGEMENT” DEFINED.

This word causes a lot of confusion because it is often used interchangeably to mean different things. In Oklahoma, there are two types of expungements.
991C EXPUNGEMENT: This type of expungement only applies to the court records of cases in which the defendant successfully completed a deferred sentence. A 991C Expungement only seals the court clerk’s records. And, if done correctly, it can also include the OSBI record being updated as to the disposition of the case so that it reads “plead not guilty, case dismissed.” However, it is this type of expungment that is most often misunderstood.
If you plead to a deferred sentence, please note: Too often, defendants who plead to deferred sentences are told that if successful, the case will be dismissed and expunged or no longer on their record. Then years later the person discovers that the case is still on their record, and in some cases, has never even been formally dismissed. Unfortunately, some attorneys and judges assumed the dismissal and expungement would just happen. In some counties, the court or the DA’s office will initiate the proceedings to dismiss and seal the court records if the defendant has completed everything and paid all monies due. Other counties require the defendant to initiate the proceedings in various ways, which can change over time. Regardless of who initiates it, in either case, OSBI does not get updated unless the defendant or his attorney sends the appropriate document to OSBI.

FULL EXPUNGEMENT/SECTION 18 EXPUNGEMENT: This type results in all criminal records being sealed and all mention of the arrest being removed from the OSBI record. In addition, the law permits the person with this expungment to answer any inquiry about arrests as if it never happened, and provides that a person cannot be denied employment or various services based on the expunged matter. In Oklahoma, this type of expungement is limited to those that qualify and has a more demanding process, explained below.

Also: “expungement” shall mean the sealing of criminal records. Records expunged after a deferred sentence or after passage of time shall be sealed to the public but not to law enforcement agencies for law enforcement purposes. These records shall be admissible in any subsequent criminal prosecution to prove the existence of a prior conviction or prior deferred judgment without the necessity of a court order requesting the unsealing of said records.