Do You Qualify for Expungement?
DO YOU QUALIFY TO ERASE/EXPUNGE YOUR CRIMINAL RECORD IN KENTUCKY?
DISMISSED CHARGES ON YOUR CRIMINAL RECORD:
Were your Charges DISMISSED?
Answer: Yes! You qualify to expunge the charges 60 days after the offense was dismissed by the Court
Explanation: Criminal charges, including minor traffic offenses, remain on your criminal record FOREVER. The only way to remove charges from your criminal record is to Petition the Court where the offense occurred, to expunge(erase) your record.
Minor traffic offenses fall off your Department of Transportation record after 5 years, but stay on your criminal record forever, unless you expunge them.
Overview: House Bill 40 dramatically improved the chances of being able to expunge your Kentucky misdemeanor record. There is no limit on the number of misdemeanors you can now expunge! Felony convictions and other criminal charges no longer block misdemeanor expungement. The legislature removed the part of the expungement statute that forbid expungement of misdemeanor offenses if you had more than one misdemeanor charge in a five-year period! Under the new law, I have expunged dozens of misdemeanor convictions from the same client.
QUESTIONS AND ANSWERS ABOUT EXPUNGING YOUR MISDEMANOR RECORD
Has it been over 5 years since the end of your sentence or probation for your misdemeanor offense?
Explanation: If you were sentenced to a monetary fine or sentenced without a Conditional Jail Sentence or Misdemeanor Probation Program-you qualify to expunge your eligible misdemeanor charge now. The statute requires that you wait 5 years after the end of your sentence or probations, whichever occurs later.
I have MISDEMEANOR charges on my record, not involving sex abuse or child abuse charges, from 2010 or earlier, do I qualify for expungement under Kentucky’s new expungement law?
Explanation: House Bill 40 permits the expungement of any misdemeanor charge 5 years after the end of a sentence or probation. Thus, unless you failed to abide by the terms of your probation, any misdemeanor offense (not a sex abuse or child abuse offense) is eligible for expungement.
I pled guilty to several misdemeanor charges over five years ago, may I expunge multiple Misdemeanor convictions?
Explanation: House Bill 40 changed the law so that people with more than one misdemeanor within a 5 year period may now expunge any eligible misdemeanor (not including a sex abuse or child abuse charges) from their record as long as it has been five years since the end of your probation of sentence
May I expunge misdemeanor Sex Abuse/Assault or Child Abuse/Assault convictions?
ANSWER: Probably not.
Explanation: House Bill 40 specifically prohibits Judges from expunging convictions involving child abuse. You will need to consult an experience Criminal Defense attorney
I have pending charges now, but I would like to expunge my record from over 5 years ago
ANSWER: It depends.
Explanation: If the charges were dismissed with prejudice or dismissed not a result of pleading to a related charge, you may dismiss your dismissed charges. If you pled to the charges, even if five years has elapsed since your plea, the Commonwealth will object and the Kentucky State Police Certificate of Eligibility will likely reflect that you do not qualify for Expungement. You will need to consult an experience Criminal Defense attorney
May I expunge a DUI Case in Kentucky?
ANSWER: Yes, but the timing of the expungement depends on when the DUI occurred.
Explanation: At the same time the General Assembly passed the Expungement Law in Kentucky in 2016, it also passed Senate Bill 56. Senate Bill 56 extends the look back period (refers to the time the state may use prior offenses to enhance penalties for subsequent DUI offenses. From the 1980’s to April of 2016, a prosecutor could enhance penalties for subsequent DUI offenses for a period of five years from offense date to offense date. House Bill 56 changed the period for the prosecutor to enhance penalties on multiple DUI offense from 5 years to 10 years. A number of courts and defense attorneys’ have challenged the application of this law on offenses that were entered before April of 2016. The Kentucky Supreme Court has this issue under review and will likely render a decision in the next few months. You will need to consult an experience Criminal Defense attorney
Overview: The Kentucky General Assembly has approved the expungement of 61 Class D nonviolent offenses out of 300 Class D felony offense. These 61 offenses however, represent almost 70 percent of all Class D offenses committed in Kentucky. Please note that many offenses like trafficking in drugs, Wanton Endangerment, Felony Assault charges are Not Eligible for expungement.
Almost 100,000 Kentuckian with Class D felony offenses are for the first time eligible to expunge their felony record!!!! For a list of eligible offenses please review this list of eligible offenses on my website:
I have one Class D Felony Offense that is included in the list of eligible Class D felony charge. My probation ended over 5 years ago. Am I eligible if I paid restitution, my fines and fees and successfully completed my probation?
Explanation: For the first time, Non violent Class D Felony offenses such as burglary 3rd, theft by deception, receiving stolen property, criminal possession of a forged instrument, flagrant non support, cultivation of marijuana, possession in the 1st degree, and many other charges are eligible for expungement.
I have a multiple eligible felony charges stemming from the same case, same indictment, may ask the court to expunge those charges.
Explanation: The decision is up to the Judge. There is a current case before the Kentucky Court of Appeals on this issue. You will need to consult an experience Criminal Defense attorney
Have you ever had a felony expunged from your record before? If they Answer is yes:
Answer: No, you are not eligible to expunge another felony offense.
I have more than one felony count, involving different dates, victims, charges. May I expunge more than one unrelated felony offense?
Explanation: House Bill 40 permits the expungement of one eligible felony or one set of eligible felony offenses involving the same case.
I have pending charges misdemeanors or felonies now, but I would like to expunge my record from over 5 years ago
ANSWER: It depends.
Explanation: If the charges were dismissed with prejudice or dismissed not a result of pleading to a related charge, you may dismiss your dismissed charges. If you pled to the charges, even if five years has elapsed since your plea, the Commonwealth will object and the Kentucky State Police Certificate of Eligibility will likely reflect that you do not qualify for Expungement.
Until July 2016, thousands of Kentuckians who had their cases waived to the Grand Jury but the charges were never presented or the prosecutor declined to indict, the charges would remain on their criminal record. There was no statutory mechanism to expunge those charges. In one case, my client’s case was waived to the Grand Jury, the prosecutor indicted someone else. The person pled guilty, received felony diversion, completed diversion and had his record expunged. All the while the innocent party, could not expunge his record and while the offenders record was expunged the innocent party could not expunge their record
How Bill 40, codified as KRS 431.076 now reads:
- (1) A person who has been charged with a criminal offense and who has been found not guilty of the offense, or against whom charges have been dismissed with prejudice[,] and not in exchange for a guilty plea to another offense, or against whom felony charges originally filed in the District Court have not resulted in an indictment by the grand jury, may petition[make a motion, in] the District or Circuit Court in which the charges were filed[,] to expunge all records.
- (2) The expungement petition[motion] shall be filed no sooner than sixty (60) days following the order of acquittal or dismissal by the court or twelve (12) months following the date of the District Court decision to hold the matter to the grand jury. The petition shall be served upon the office of the Commonwealth’s attorney or county attorney that prosecuted the case.
- (3) Following the filing of the petition[motion], the court may set a date for a hearing. If the court does so, it shall notify the county or Commonwealth’s attorney, as appropriate, of an opportunity for a response to the expungement petition[motion]. In addition, if the criminal charge relates to the abuse or neglect of a child, the court shall also notify the Office of General Counsel of the Cabinet for Health and Family Services of an opportunity for a response to the expungement petition[motion]. The counsel for the Cabinet for Health and Family Services shall respond to the expungement petition[motion], within twenty (20) days of receipt of the notice, which period of time shall not be extended by the court, if the Cabinet for Health and Family Services has custody of records reflecting that the person charged with the criminal offense has been determined by the cabinet or by a court under KRS Chapter 620 to be a substantiated perpetrator of child abuse or neglect. If the cabinet fails to respond to the expungement petition[motion] or if the cabinet fails to prevail, the order of expungement shall extend to the cabinet’s records. If the cabinet prevails, the order of expungement shall not extend to the cabinet’s records.
The new Kentucky expungement law now permits the expungement of all pardons. Thus, if the Governor pardons a person, that person may petition the court to expunge the pardoned offense, even offenses that do not qualify for expungement.