OHIO EXPUNGEMENT LAW - Guide to Sealing Your Criminal Record




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Many crimes cannot be expunged

What type of convictions cannot be expunged from my criminal record?

The following are convictions that cannot be expunged:

- Criminal Convictions when the offender is subject to a mandatory prison term;

- Criminal Convictions under section 2907.02, 2907.03, 2907.04, 2907.05, 2907.06, 2907.321 [2907.32.1], 2907.322 [2907.32.2], or 2907.323 [2907.32.3], former section 2907.12 (Chapter 2907. deals with three main categories of crimes: sexual assaults and displays; prostitution offenses; and offenses related to the dissemination of obscenity and matter harmful to juveniles), or Chapter 4507. (Driver's License Law), 4511. (Operation of a Motor Vehicle), or 4549. (Motor Vehicle Crimes) of the Revised Code, or a conviction for a violation of a municipal ordinance that is substantially similar to any section contained in any of those chapters;

- Criminal Convictions of an offense of violence when the offense is a misdemeanor of the first degree or a felony and when the offense is not a violation of section 2917.03 (Riot) of the Revised Code and is not a violation of section 2903.13 (Assault to an unborn child), 2917.01 (Inciting violence) or 2917.31 (Inducing panic) of the Revised Code that is a misdemeanor of the first degree;

- Criminal Convictions of an offense in circumstances in which the victim of the offense was under eighteen years of age when the offense is a misdemeanor of the first degree or a felony;

- Criminal Convictions of a felony of the first or second degree;

- Bail forfeitures in a traffic case as defined in Traffic Rule 2.

Continued in our Guide to Ohio Expungement Law
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Necessary Steps A Court Must Take Upon Application for Expungement

If you file an application for expungement with a Court in Ohio, the Court cannot simply deny the application without going through a specific process. The court must take each of the following steps when considering an application for expungement:

(1) determine whether the expungement applicant is a first offender;

(2) determine whether there are no other criminal proceedings pending against the expungement applicant;

(3) determine whether the expungement applicant has been rehabilitated to the satisfaction of the court;

(4) if the prosecutor has filed an objection to the expungement application, determine whether the prosecutor's objection is well-taken; and

(5) weigh the interests of the expungement applicant in having the criminal conviction records sealed against the legitimate needs, if any, of the government in maintaining those criminal records."

The cases so holding are Ohio's Tenth District Court of Appeals in the case of State v. Brewer, 2006 Ohio App. LEXIS 6955 (December 29, 2006) Franklin App. No.06AP-464; and Ohio's Eighth District Court of Appeals in the case of State v. Gabe, 2007 Ohio App. LEXIS 5543 (November 29, 2007) Cuyahoga App. No. 89258. These cases apply Ohio Revised Code Section 2953.32(C) (1).

for more information see are guide to Ohio Expungement Law
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The Mandatory Nature of an Expungement Hearing

In a recent case, the Trial Court got frustrated with an expungement applicant because he forgot to list that he had lived in New York on his application for expungement (there was a person in New York of the same name who might have been the same guy who had previously been convicted of a crime there). Under Ohio expungement law, you must be "first offender" in order to get a statutory expungement.

R.C. 2953.32(A)(1) provides, in part, that "a first offender may apply to the sentencing court if convicted in this state, or to a court of common pleas if convicted in another state or in a federal court, for the sealing of the conviction record."

R.C. 2953.32(B) provides that:

"[u]pon the filing of an application under this section, the court shall set a date for a hearing and shall notify the prosecutor for the case of the hearing on the application. The prosecutor may object to the granting of the application by filing an objection with the court prior to the date set for the hearing. The prosecutor shall specify in the objection the reasons for believing a denial of the application is justified. The court shall direct its regular probation officer, a state probation officer, or the department of probation of the county in which the applicant resides to make inquiries and written reports as the court requires concerning the applicant."

Ohio's Ninth District Court of Appeals has construed this section to mean that "[t]he court may not dispose of the application without holding a hearing because the language of the statute is mandatory, not permissive." State v. Mallardi (Apr. 26, 2000), 9th Dist. No. 19842, 2000 Ohio App. LEXIS 1791 at *1, citing State v. Cuttiford (Feb. 11, 1998), 9th Dist. No. 97CA006724, 1998 Ohio App. LEXIS 695, at *3.

Therefore, under R.C. 2953.32(B), the trial court was required to hold a hearing and taking into account any objections from the State and the report from the probation department, determine, among other things, whether Smith was a first offender. The Court of Appeals noted that the State did not file objections and the assistant prosecutor was not present on the scheduled hearing date. It is only after a hearing that the court could make a determination that Smith was not a first offender.

continue with expungement story
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Complete Guide to Ohio Expungements

In our publication on Ohio Expungement Law, we take you through the Ohio expungement process and answer questions such as what crimes cannot be expunged in Ohio; whether you qualify for first offender status; arguments that you may face from the prosecutor and how to handle them; when do two criminal convictions really count as only one; how to complete an expungement application and much more. Begin clearing your criminal record today!

Over 50 pages of how to get your criminal record expunged including an expungement application.

Sample pages from our expungement guide

To order an electronic copy of our publication in pdf format, please click on the PayPal Buy Now link below. Paypal accepts all major credit cards and you don't need a paypal account to use it!

Cost for an electronic copy is $12.95 - compare with the cost of hiring a lawyer at $700-$1500 or other do it yourself expungement kits that run $200-$300! Don't believe it then check out this post from an expungement forum!

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Sample Expungement Order

I've attached a sample expungement order from the Franklin County Municipal Court so that people can see what a final expungement order looks like.

expungement order

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With Expungements, Same Indictment Does Not Mean Same Offense

Pursuant to Ohio Revised Code Section 2953.32(A)(1), under certain circumstances, a "first offender" may apply to the sentencing court for sealing of a conviction record. If the applicant is not a "first offender," the trial court lacks jurisdiction to grant an expungement. This means that you can only have one conviction on your record when you petition for expungement.

But there are some exceptions to this. The Ohio Legislature realized that sometimes people get into a run of trouble over a short period of time, and if the crimes they commit are close enough together, then they may be considered as one conviction, even if there are more than one. Thus, R.C. 2953.31(A) defines the term "first offender" as follows:

"First offender" means anyone who has been convicted of an offense in this state or any other jurisdiction and who previously or subsequently has not been convicted of the same or a different offense in this state or any other jurisdiction. When two or more convictions result from or are connected with the same act or result from offenses committed at the same time, they shall be counted as one conviction. When two or three convictions result from the same indictment, information, or complaint, from the same plea of guilty, or from the same official proceeding, and result from related criminal acts that were committed within a three-month period but do not result from the same act or from offenses committed at the same time, they shall be counted as one conviction, provided that a court may decide as provided in division (C) (1) (a) of section 2953.32 of the Revised Code that it is not in the public interest for the two or three convictions to be counted as one conviction.

Some have argued that if all of the convictions arise out of the same indictment, then they should all be counted as one single conviction. But Ohio's Tenth District Court of Appeals has disagreed. The Court reasoned that "if an applicant for expungement is not a "first offender," the trial court lacks jurisdiction to grant an expungement." This is true even if the convictions arise out of the same indictment.

The case on this is State v. Wilson, 2007 Ohio App. LEXIS 1633 (April 17, 2007) Franklin Co. App. No. 06AP-1060.
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Expungement For Failure to Pay Child Support not Allowed

Ohio's Tenth District Court of Appeals recently considered a case wherein the trial court granted the expungement of a man who was ordered to pay child support for the benefit of his children and did not do so. The prosecution argued on appeal that R.C. 2953.36(D) states that a person convicted of a first degree misdemeanor in which the victim was under 18 years of age is not eligible for expungement.

Ohio's Tenth District Court of Appeal held that the victims of the crime of failure to pay on a child support order are the children who were under 18. Accordingly, R.C. 2953.36(D) barred expungement of the applicant's conviction.

The case on this was In Re Schiavo, 2008 Ohio App. LEXIS 251 (January 29, 2008), Franklin Co. App. No. 07AP-699.

Continued in our Guide to Ohio Expungement Law

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Expungement Links

Ohio Expungement Statute

Ohio's Sexual Offender Law

Expunging Multiple Offenses

First Offender Status

RateMyCop.com opens for ratings

Ohio Name Change Kit

When to Apply for Expungement

Dealing with Police in Civil Matters

Do Misdemeanors Automatically Drop Off My Criminal Record

Quick FAQs on Expungements

More on First Offender Status

Prosecutor's Role in Expungements

Expunging Acquittals

Am I considered a First Offender

How Long Does State have to Challenge my Expungement

How Long do Convictions Stay on my Criminal Record

Plea Bargains and Expungements

Fulfilling your Sentence for Expungement Eligibility

Expunging Not Guilty Findings

Expunging Not Guilty by Reason of Insanity Findings

Expungement after Mandatory Jail Term

Convictions do not drop off your record automatically

Mandatory Hearing for Expungement

Same Indictment is not the Same Offense

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The Difference Between Judicial Expungement and Statutory Expungement

Ohio's Seventh District Court of Appeals recently explained the difference between what is known as "judicial expungment" and "statutory expungement" as follows:

There is some confusion in the use of the terms "expungement" and "sealing the record" in this appeal. R.C. 2953.31 et seq. does not deal with expungement, but rather, refers only to sealing the record in the case of a first offense. There is no statutory method of expungement for first time offenders in Ohio, although a limited type of judicial expungement continues to exist apart from the procedures set up in R.C. 2953.31 et seq. Judicial v. Brasch(1997), 118 Ohio App.3d 659, 663, 693 N.E.2d 1134.

Judicial expungement involves a request by someone who wishes to remove all traces of a criminal proceeding when that proceeding has not resulted in any conviction. This type of situation falls outside the relief offered by R.C. 2953.31 et seq.

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Expungement After an OVI

In Ohio, you cannot be counted as a "first offender" under the expungement statute if your "first offense" was and OVI (used to be called DUI, DWI, and/or OMVI). The initial question that must be answered in any expungement action is whether an applicant is a "first offender," since pursuant to R.C. 2953.32(A)(1), only a first offender can apply to have a record of conviction sealed. If the applicant is not a first offender, the trial court lacks jurisdiction to grant an expungement. State v. McCoy, Franklin App. No. 04AP-121, 2004 Ohio 6726.

R.C. 2953.31(A) defines first offender as "anyone who has been convicted of an offense in this state or any other jurisdiction and who previously or subsequently has not been convicted of the same or a different offense in this state or any other jurisdiction."

That section further provides that "[w]hen two or more convictions result from or are connected with the same act or result from offenses committed at the same time, they shall be counted as one conviction." However, the section also provides that convictions for violation of R.C. 4511.19 or any equivalent municipal ordinance "shall be considered a previous or subsequent conviction." R.C. 4511.19 is the section defining the offense of OVI. Ohio Revised Code Section 2953.36 provides that the record of an OVI conviction cannot be sealed.

So if you are trying to expunge a criminal conviction for driving under the influence, you are out of luck.

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