Dismissal vs. Expungement: What is the Difference?

More than 25 percent of previously convicted Americans are unemployed. This is higher than the unemployment rate in the general population at any given time, even during the Great Depression. Meanwhile, more than 2.1 million young Americans under the age of 18 are arrested every year. In order to combat unemployment, which likely leads to repeat offenses, the legal system provides certain individuals a chance for a fresh start through expungement of their arrest or conviction records.

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It is important to note, however, the differences between expungement and dismissal of criminal charges. This article aims to define, compare, and contrast these two legal concepts.

What is Expungement?

The word “expunge” means “to erase or remove completely.” When a court issues an expungement order, one’s criminal conviction is removed from state and federal records, either by sealing or destroying them. When a criminal record is expunged, it’s as if the conviction never happened. 

For instance, in Arizona, expungement is now an option for individuals convicted of minor marijuana offenses such as possession and sale. This is in light of the legalization of recreational marijuana use in the state. By having their conviction records expunged, many individuals have a second chance at obtaining better opportunities in life.

In many states, juvenile offenders are usually eligible for expungement. While some adults may also be qualified, most states limit this to less serious offenses. In many states, those convicted of serious crimes, such as sex crimes, murder, or kidnapping, are not eligible for expungement. Driving-related offenses are also not eligible for expungement in some states.

Some jurisdictions differentiate between expungement and sealing records. In most jurisdictions, when a criminal record is sealed, it can only be reopened under exceptional circumstances, such as when the individual is charged with the same crime. Sealed records are usually much harder to find during background checks by potential employers or landlords. Applying for certain jobs, such as those in law enforcement, however, may still require disclosure of criminal records, even if they have been sealed.

Take note that expungement basically means the crime is forgotten, as opposed to a pardon, where a crime is forgiven, usually by public officials such as the President or state governors.

What is a Criminal Dismissal?

A criminal dismissal, on the other hand, is what happens when criminal proceedings are resolved without a conviction. Dismissed charges are not the same as an acquittal, wherein the person accused of a crime is found not guilty of the crimes charged. 

A court or prosecutor may dismiss criminal charges before going to trial or before arriving at a verdict. This may happen for several reasons, including mistakes in the criminal complaint, insufficiency of the evidence, loss of evidence, or unavailability of necessary witnesses. Criminal charges may also be dismissed in cases of violations of the constitutional rights of the accused, such as lack of probable cause during arrest or illegal stops and searches.

A criminal charge may be dismissed “with prejudice,” which means that no other similar claims may be filed for the same offense allegedly committed. Charges dismissed with prejudice are still eligible for appeal. On the other hand, if the charge is dismissed “without prejudice,” it means that other claims may still be filed as long as it is filed within the statute of limitations for the specific offense. 

Charges Dismissed vs. Expunged: Key Difference Between Dismissal and Expungement

Dismissal and expungement have several differences, mainly regarding the following:

  • Who is eligible
  • Who issues the order
  • How it may be granted, i.e., voluntarily or upon motion or petition
  • Whether a conviction is required
  • Whether it shows up in a background check

Who is eligible for a charge to be dismissed or expunged?

Depending on state laws, expungement is only available to certain groups of individuals (e.g., juvenile offenders) or those charged with certain crimes. However, charges may be dismissed regardless of who the accused is, and regardless of the charges filed.

Also read:How Long Does the State Have to File Charges in Florida?

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Who decides on dismissal and expungement?

Only a court may issue an order of expungement. On the other hand, either the prosecutor or the judge may dismiss criminal charges. Also, expungements usually occur only on the state level, while both state and federal courts may dismiss cases brought before them.

How may an order of dismissal or expungement be granted?

The court or the prosecutor may dismiss charges upon a motion to dismiss, although the court or prosecutor may also voluntarily decide to issue the order on its own. 

An expungement may only be granted upon filing an application or petition with the state court. In rare circumstances, charges are automatically expunged. For example, some states offer diversion programs, and once the offender completes the program, the charge is automatically expunged.

May charges be dismissed or expunged prior to conviction?

A dismissal does not require a conviction. In fact, the order of dismissal may be issued before even proceeding to trial. On the other hand, expungement usually occurs after a conviction. A dismissal order may also be expunged, as explained in the next section.

Will dismissed and expunged records show up on background checks?

Expungement generally exists to give the convicted individual a clean slate. Once a criminal record is expunged, it will usually not show up on background checks, such as for employment, housing, or when applying for certain licenses. A dismissal, however, will remain in public record, although it may not entail the same consequences as a criminal conviction. Some jurisdictions also allow the expungement of dismissed charges, as well as arrest records. 

Final Thoughts

Being accused of a crime, although difficult, does not always guarantee a conviction or even a lengthy, arduous trial. It always helps to know one’s constitutional rights and remedies in order to get the case dismissed at the earliest opportunity. On the other hand, even in the event of a conviction, it’s still possible to get a fresh start in life, to support one’s family, and make a decent living by getting a criminal record expunged. This can be done with the help of a trustworthy, knowledgeable criminal defense attorney.

Article by Mariia Synytska

Mariia Synytska is Content Lead at Lawrina, a legal portal that projects innovation in law. Mariia manages the content on the website, takes interviews with lawyers and law experts, and looks for the interesting topics for Lawrina's audience. If you would like to be a blogger for Lawrina, you can contact Mariia for all the details via email m.synytska@lawrina.com.

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