There are many different ways to seal or expunge a felony in Arkansas, however the most common way is to apply for an expungement under the Comprehensive Criminal Record Sealing Act of 2013. If you don’t qualify under this statute don’t worry you might qualify under another. Just call us to set up a consultation with one of our criminal defense attorneys at (479) 782-1125.
Typically the year you were convicted will determine which statute to apply under, except the Comprehensive Record Sealing Act of 2013 is retroactive, meaning that you qualify to apply under the 2013 statute as well as whichever statute was in place at the time of your conviction. Which is why you should always start with researching this statute before exploring any others.
I’ll evaluate those other statutes another day, and I’ll restrict these questions and answers just this statute: https://law.justia.com/codes/arkansas/2014/title-16/subtitle-6/chapter-90/subchapter-14/
If you don’t know who “Seal” is, the musician pictured as the main image for this article, I suggest you play his most famous song “Kiss From a Rose” while reading this blog. The song can be found here: https//:www.youtube.com/watch?v=AMD2TwRvuoU
I would have the song play automatically on this page, but I have been told this is not MySpace circa 2003.
How Long Do I have to Wait Before I Can Apply for a Felony Expungement in Arkansas?
You have to wait five years after your conviction and the completion of your sentence before you can apply for a felony expungement in Arkansas under this statute.
A sentence is complete when all fines, court costs, and restitution if any ordered have been paid, all jail and prison time has been served, the person has been completely discharged from probation or parole, any suspended sentence or community service has been completed, and the defendant’s driver’s license has been reinstated. If you are still on probation, you may apply for an early termination of probation, which will start the 5 year wait time sooner than if you wait for the probation to expire.
Here is the relevant portion of the actual statute: https://law.justia.com/codes/arkansas/2014/title-16/subtitle-6/chapter-90/subchapter-14/section-16-90-1406/
How Many Times Can You Expunge in Arkansas? How Many Felonies Can You Expunge in Arkansas?
You can only seal two different sets or “episodes” of felony convictions under the comprehensive act (16-90-1406 and etc). For example, if the police pulled you over in a stolen car and drugs are found, you might end up with 2 or 3 different felony convictions. Later, the police catch you again. When you go to seal your felonies, even though you have up to 6 different felonies, you may be able to expunge or seal all 6. However, if you pick up another felony unrelated to those two episodes, then you can’t seal the third felony UNDER THIS STATUTE. You may be able to seal it under another statute, which is why you may want to do some research before trying to seal these.
Which Types of Felonies May be Expunged or Sealed in Arkansas?
- Class C, D, and unclassified felonies (except those that are punishable by more than 10 years) are permitted to be sealed.
- Class A and B felonies are permitted to be sealed if they are crimes found under the Controlled Substances Act (drug and other related charges A.C.A. § 5-64-401).
- Any felony not involving violence committed while the defendant was less than eighteen (18) years of age. (However if you were convicted as a minor and not charged as an adult you would not want to use this statute to seal your conviction. Call me if you think this applies to you because it is too complex to describe here).
- You are not allowed to seal a Class Y felony, Class A felony, or Class B felony under this act, except as provided in § 16-90-1406 (drug charges and other charges under 5-64-401, and maybe some other complicated exemptions).
- Defendants may not expunge a Manslaughter conviction, as described under § 5-10-104.
- You can’t seal or expunge felony sex offenses under this statute.
- Any felony involving violence under § 5-4-501(d)(2) may not be expunged, they are: Murder in the first degree, Murder in the second degree, Kidnapping involving an activity making it a Class Y felony; (iv) Aggravated robbery, (v) Terroristic act, involving an activity making it a Class Y felony, Causing a catastrophe, § 5-38-202(a), and Aggravated residential burglary.
- A Commercial Driver’s License holder can’t seal or expunge a felony traffic offense that was committed when he had a CDL.
Can I Expunge a Felony in Arkansas if I Spent Time in Prison?
Maybe. You can’t expunge under this statute if you spent time in the Arkansas Department of Corrections, but if you were sentenced to boot camp or the Department of Community Corrections (RPF or RCF as it is colloquially called) then you are eligible under this statute. If you don’t know which prison you were sentenced to, an attorney can pull your file and find out.
Can I Expunge a Felony in Arkansas if I have Pending Charges?
Technically, yes, but the judge will most likely decline to do so. Even if you seal them under this statute you could still be cross-examined in court about your previous criminal conviction even if it is sealed, and they can still use it against you for enhancements and tell the jury about it even if it is sealed. When and under which circumstances they can use previous convictions against you in a new trial are complicated, just because you have been convicted in the past doesn’t mean they can bring it up at a different trial. That is a topic for another time.
You Have to File a “Petition to Seal” to Ask a Judge to Seal or Expunge Your Arkansas Felony Records.
What Information Will I Need to Have in Order to File a “Petition to Seal” My Arkansas Felony?
- The court you were charged in,
- your case number,
- date of your arrest or citation/ticket,
- the date you pled guilty, no contest, or were found guilty or not guilty,
- the date the charges were dropped or dismissed,
- the name and statute code of the charge or charges you were arrested for,
- the name and statute code of the offense or offenses you were convicted of (if you were convicted), and
- your arrest tracking number (if you were booked into jail).
You will have to swear under oath and in your petition to seal that you:
- are rehabilitated,
- are not registered as a sex offender under the Arkansas statutes,
- and declare if you have any pending charges or not.
After that you pay a $50 filing fee to the court that has jurisdiction over your original charges. This would be the Circuit Court in the county where you were convicted.
Some judges also want you to get background check from the sheriff’s department and the city police. Others want a clearance letter from the circuit court or district court clerk. This clearance letter would notate any pending charges against you and a list of prior convictions. Judges have even requested a letter from the DMV that shows your history of traffic tickets. Honestly, I’m not sure of the legality of these hoops some judges make you jump through. In most cases it is just cheaper and easier to do as they ask and not rock the boat. Most people don’t have thousands of dollars to appeal the decisions.
Once you write up a petition to seal that includes all of the information outlined in this blog and signed it under oath in front of a notary public, then you have to give a copy to the court and every other government agency involved.
You will have to certify that you sent a copy of everything you filed in court to the prosecutor’s office that prosecuted your original case. The city prosecutor and judicial district or “county” prosecutor are not the same entity. The arresting agency is also entitled to a copy. This would be the city police, state troopers, game and fish, or sheriff’s office. Then of course, you must actually send them a copy. The best way to do this would be via certified U.S. mail and an email so you have a record. You should keep the email record or a fax confirmation for proof of service along with the certified mail return receipt.
The prosecutor may object to your petition within 30 days of being served with the court filings. If the prosecutor waits longer than 30 days to file an objection to your petition and then they file one, object to their objection and file a motion to have it stricken from the record as untimely.
How Long Do You Have to Wait After You File an Expungement to Get a Response?
Each court is different and a judge does not HAVE to expunge or seal a charge just because you asked nicely.
Legally, the judge may not grant your petition to expunge until at least 90 days after you served the prosecutor. The court may deny a petition at any time. However, I have had many judges grant my petitions to seal in as little as 45 days. That type of turn around is not the norm. Judges often sign petitions to seal for me within 60 days. Yes, sometimes even judges don’t follow the law, and it can be in your favor.
In most courts, the judge will not make you go to court to expunge your felony if you hire an attorney. Most judges and prosecutors will work with the attorney to make sure you don’t have to come back. That is true for just about all charges except exceptionally heinous charges. Legally, judges MUST set felony convictions for a hearing before they are expunged, but if you have an attorney judges will often forgo the hearing.
What Happens if My Petition is Denied?
If the court denies your petition, request a hearing on the matter. You will have to show up and show the court why you deserve to have your charges expunged.
If the judge denies your request, you may appeal to a higher court. For example, from Circuit Court to the Court of Appeals or the Supreme Court of Arkansas.
If you do not appeal the denial, you will have to wait one year before you can ask the court to seal your charges again.
What To Expect if there is a Hearing:
You will have to present evidence. Judges like to hear that you have been rehabilitated or have made amends with the victim. Bring proof that you completed counseling or classes and proof that you have lots of opportunities on the horizon. Be sure to prove that an expungement would help you accomplish your goals.
You will have the opportunity to give testimony, call witnesses, and even question any witnesses the prosecutor brings.
Whitfield Hyman, a criminal defense attorney in Fayetteville and Fort Smith, Arkansas, wrote this blog. This blog is not legal advice, for legal advice about an expungement call our office at 479-782-1125.
What if I Don’t Qualify for an Expungement Based on What I’ve Read in this Blog?
There are plenty of other statutes which you might qualify under. The statute that was in place at the time you were convicted might also be an option. I plan on getting around to writing blogs about each of these. Many of these were in effect at the same time as others, a newer statute did not necessarily repeal or override an older one. Those statutes are: