Why is the term “first offender” important under the Ohio expungement law?

Only a first offender can apply to the court for an expungement and sealing of their record. If a person is not a first offender, a court has no jurisdiction to grant an expungement. This means that the court has no authority to grant the sealing of the records, but rather, should deny any request for an expungement from any person who is not a first offender. Even if a court should grant an expungement for a person who is not a first offender, such an expungement would be considered void for lack of jurisdiction by the court and the expungement can be vacated at any time thereafter.

As a result, it is crucial to determine if one is a “first offender” prior to beginning the expungement process. Generally, a first offender has only one conviction of a felony or misdemeanor, and they have no other convictions for the same crime or any other crime in Ohio or any other state. A conviction is the determinative factor. If a person was charged but the charge was eventually dismissed, for whatever reason, the dismissed charge does not count as a conviction.

There is an exception to the requirement of having only one conviction in order to qualify as a first offender under the Ohio Expungement Statute. ORC 2953.31 provides that if a person was convicted of two or more crimes based upon the same action, then all of those convictions will be considered one conviction and all the charges can be expunged and sealed from their record.

Ohio Revise Code 2953.31 First Offender Defined:

(A) “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.

There have been numerous cases decided by Ohio courts addressing whether someone with more than one conviction can have an expungement. Different courts have had different interpretations of the language under ORC 2953.31. Some of the key considerations under this situation is how close in time and place did the multiple charges occur. Offenses that are committed against different individuals at different places and different times, and the convictions did not result from, or were connected with same act, are typically considered separate convictions. (In other words, they would not be combined as one conviction.) However, if a person receives more than one conviction out of a series of events from related criminal acts that occur close together in time and location, there is good basis to argue that those multiple convictions shall be counted as one conviction, and as result, that person would qualify as a first offender under the Ohio expungement law. Even if a person is successful in their argument before a court that their multiple charges should be considered as one conviction under ORC 2953.31, their work is not over. For the court shall conduct a hearing pursuant to ORC 2953.32 to decide if it is in the public interest for the two or three convictions to be counted as one conviction. In order to be successful at this stage of the expungement hearing, it would be advisable to have an attorney present legal authority and persuasive arguments.

In addition, a person is not considered a first offender if the have received a previous expungement. A person may have one, and only one, expungement under Ohio law. A prior expungement is considered an offense or conviction and will preclude one form having any subsequent criminal records expunged.

Lastly, other convictions for minor misdemeanors, including most traffic offenses, do not count as criminal convictions. Bail forfeiture, dismissed charges, and minor misdemeanor charges will not serve as a conviction and these charges should not prevent a person from having their record expunged and sealed.

Contact our law firm to determine if you are eligible for an expungement and sealing of your record. We provide a free consult and our discussions are confidential. www.ohioexpungementlaw.com