The short answer is YES. If a Court is not convinced a person has met the requirements under Ohio Revised Code 2953.32 for sealing a dismissed charge or a finding of not guilty, Courts will deny the application for expungement. Many people, even some attorneys, mistakenly believe that since a case was dismissed, the expungement should be automatic. As a result, they are unprepared for the expungement hearing. When the expungement is denied, it creates big problems. The person faces a higher standard of proof, making it harder to win their expungement if they want to refile in the future. Further, if someone loses their case, they may have to resort to an expensive appeal of their case. It is a whole lot better to do it right the first time around.
When Can a Dismissed Charge Be Expunged:
Section 2953.52 of the Ohio Expungement Statute describes the process for expunging and sealing criminal records of DISMISSED CASES, findings of NOT GUILTY, when a grand jury renders a “NO BILL” (or the decision by the grand jury not to prosecute the case). Expungements for Records of a “Dismissed Charge” or a “Finding of Not Guilty” can be filed immediately and there is no waiting period. A record of No Bill has a two-year waiting period before a person can apply for expungement.
What Happens at the Expungement Hearing for Dismissed Charges?
After the expungement application is filed, the court will set a date for a hearing and notify the prosecutor about the case. The prosecutor may file an objection prior to the hearing or wait until the day of the hearing to object. The Court must consider the reasons against granting the application specified by the prosecutor.
The court will determine whether the case was dismissed with prejudice or without prejudice and whether prosecution still has the option to refile the criminal case. Next, the court will decide if the Applicant has any criminal proceedings pending against them, which can affect their eligibility.
Ultimately, the trial court must weigh the interest of appellant in having his records sealed against any legitimate need of the government to maintain the criminal record. This is also referred to as the “balancing test.” If the court believes the government interest in maintaining the record outweighs the applicant’s interest in sealing the record, the court will deny the expungement.
The Applicant has the burden of proof in expungement cases. As a result, it is up to the Applicant to prove to the Judge their interest in having these records sealed are not outweighed by the government’s interest to be successful in their expungement case. The Judge of the trial court has sole discretion to make this decision. An expungement attorney’s arguments on behalf of their client and skillful presentation of the case is crucial to success. Preparation of the client for testimony and presenting evidence to clearly demonstrate the Applicants rehabilitation will make or break the case.
Examples of Expungement of Dismissed cases
We have had many misdemeanor cases and serious felony cases where charges were filed against our clients and later dismissed. Prosecutors can object to these cases for various reasons, such as: the suspicious circumstances of the case; other criminal records of our client; the nature of the offense; the type of occupation of our client; or they claim the police or employers may need to know about these records in the future. We have encountered this in drug related charges, crimes of violence, theft cases, dismissed OVI charges, and other criminal charges. In many cases, the prosecutor’s arguments simply amount to speculation. In contract, we present actual evidence on behalf of our clients to show the judge the balancing test tips in our client’s favor and our clients deserve a second chance.
What Our Client Say
Mr. Mathews was the epitome of a professional. Followed his gut and fought all the way. Couldn’t be more impressed and thankful. – J
I did not want to go through the expungement process alone and I am very satisfied that I used Gregory Mathews. He made the process simple for me and gave me plenty of confidence that we would win and that my record would be expunged. His experience dealing with these expungements made a great difference and lead to our successful result. I can’t thank him enough for this life-changing process. Now that my record is expunged I am able to further my career. Thanks again! – Anonymous Client
Are You Eligible to Have Your Dismissed Charge Expunged?
We make it easy for you to know for sure. Take our Free Expungement Eligibility Test or give us a call. Our law firm has been in business since 1988 and we are Experienced Ohio Expungement Attorneys. We will guide you through the process so you can put an old record behind you. Contact us for a confidential free expungement consultation.