Ohio SB288 Changes Expungement Law in Ohio
Ohio criminal laws have been reformed by Senate Bill 288 which takes effect on April 4, 2023. This new law creates sweeping changes for the Sealing and Expunging of criminal records, including, conviction records, bail forfeitures, findings of not guilty, dismissed charges, and a No Bill issued by grand jury. The new law also extends the opportunity to seal or expunge records to a governor’s pardon.
Can an Expungement Erase Past Mistakes
The most remarkable addition of SB 288 is that for the first time in Ohio’s history, people will have the opportunity to have a true “Expungement”, in addition to the existing process for “Sealing of Records”. Before the passage of Ohio’s new law, the courts and the legal community commonly referred to the process for removing criminal records from a person’s background as “Expungement” or “Sealing.” Ohio had just one process, but these terms were used interchangeably to refer to the same process for criminal record removal.
Ohio’s new law will distinguish between Expungement and Sealing and their effect. A “Sealed
Record” is removed from all public records, and the public no longer has access to the criminal record,
including anyone who pulls a background check – employers, landlords, etc. However, a sealed record is still maintained by the government for access for limited purposes. An “Expungement” shall delete, destroy, and erase a record so that the record is permanently irretrievable. While there are some exceptions for access to expunged records, there is far
less access to Expunged records compared to Sealed records. There are different conditions that apply
to each remedy and a person may be eligible for Sealing but not Expungement.
Expansion of Types of Offenses and Number of Offenses That Can be Expunged and Sealed
The new expungement and sealing statute expands the number of convictions and the types of offenses eligible for either expungement or sealing. Under the old law, certain convictions created a cap (or limit) on the number of convictions eligible to be sealed. The new law still prohibits certain offenses from being sealed or expunged, but a person with one of these ineligible offenses may still be eligible to have other criminal records in their past expunged and sealed. This is a huge change for people who were not eligible in the past or who were denied a sealing of record by a court, because they may be eligible after April 4th , 2023.
Some Convictions Eligible Under Old Law – No Longer Eligible Under New Law
Unfortunately, some offenses that were eligible for sealing in the past will no longer to be eligible to be Sealed after April 4, 2023. This will be the case for convictions for Misdemeanor 4 th Degree Domestic Violence (DV M4) or Violation of Protection Order (VPO). If you are reading this article any time before April 4, 2023, and you would like to have a conviction for one of these two charges sealed, you must act immediately to file an application to seal the record before the clock strikes midnight on April 3, 2023, or it will be a permanent criminal record forever. As long as the Application to Seal is filed before the effective date of the new statute, the old law shall apply to the case, making DV M4 or VPO convictions eligible, even after the new law becomes effective.
Waiting Periods for Sealing and Expungement Change
Senate Bill 288 revises the waiting periods for Sealing of Records and establishes new waiting periods for Expungement. A waiting period is the time one must wait after a person has completed all sanctions and probation for their case, referred to as “termination of the case.” Some of the waiting periods for sealing and expungement are similar for misdemeanor convictions, but there are new waiting periods for bail forfeitures and minor misdemeanors.
Felony convictions have different waiting periods for Sealing versus Expunging a record. For example, to seal a felony 4th or 5th degree conviction, the waiting period is 1 year after termination of the case. To Expunge the same case the waiting period is 10 years after the termination of the case. Based upon our review of the new statute, and Sealing Records for over 30 years, it is our opinion that Courts will want to see a period of time when a person has no other criminal convictions and demonstrates rehabilitation before they will consider granting an Expungement.
Courts Must Decide Each Application for Sealing or Expungement on a Case-By-Case Basis
The old law allowed an “Eligible Offender”, as defined by the statute, to seal a criminal record. The new law removes the definition of “Eligible Offender.” As a result, the Courts shall be required to decide in each case whether the person is prohibited from sealing or expunging the record by considering the offense involved, objections by the prosecutor and victim, weighing the person’s interest in sealing the record against the State interest in maintaining the record, as well as satisfying other statutory requirements. People seeking to have records sealed or expunged under SB 288 will have the burden of proof, and the burden of providing evidence to the Court they deserve to have their record(s) sealed or expunged. We believe the new law will result in more contested hearings with the prosecutors objecting to applications to seal and expunge criminal records.
Courts Must Comply with New Requirements
A positive impact of SB 288 requires Courts to conduct hearings on Applications for Sealing or Expungement be conducted between 45 days to 90 days after the application is filed. Many courts have done a decent job processing their Sealing of Record cases. However, there are also many courts who have simply taken far too long before conducting a hearing and then months after the hearing to issue a decision. This is not been fair for people who need the record sealed to move on with their life and obtain a new job, a new apartment, obtain a loan for a home or business, etc… It appears that the Legislature recognized that Justice Delayed is really Justice Denied in these cases. The courts have been required to notify the Ohio Bureau of Criminal Investigation and Identification (BCI) and other government agencies when a record is sealed. The new law requires that Courts extend their service to law enforcement, prosecutors, probation departments and Adult Parole Authority. Similar to the old law, the new expungement statute makes it a criminal offense for government officials to release information about a record that has been sealed or expunged, with some exceptions. This is a powerful incentive to enforce the government and law enforcement to follow the law and to insure these criminal records “shall be considered not to have occurred.”
Additions and Changes Coming to Ohio Expungement Law
This Part 1 in our series of articles only briefly describes some of the changes to come under SB 288. Look for our subsequent articles in the following days and weeks leading up to the effective date of Senate Bill 288 on April 4, 2023.
Are You Eligible to Have Your Criminal Record Sealed or Expunged?
We are Experienced Ohio Expungement Attorneys, who have been in business since 1988 and handle cases in all Ohio counties. As a trial attorney and former prosecutor, we can use our experience to help you put an old record behind you and give you a second chance. Give us a call or take our Free Expungement Eligibility Test. confidential and free consultation