Misconceptions About Expungements

expungement misconceptions

I wrote this post because of the misconceptions people have regarding an expunged (or sealed) record in Florida. This has led to a lot of confusion about these statutes. The first thing we need to define is what a “record” actually is.

The Record of Arrest

When a person is arrested (either by physical arrest or by “Notice to Appear”) information regarding the arrest is transmitted to several agencies. These include the Florida Department of Law Enforcement [FDLE] (which maintains arrest histories from the entire state of Florida), the county sheriff’s office (which maintains arrest histories for the county), the arresting agency, the State Attorney’s Office, and the Clerk of Court. In addition, FDLE sends their arrest data to the Federal Bureau of Investigation [FBI].

Public Records

Unfortunately, at least two of these agencies (Clerk of Court and FDLE) sell their data to private companies. Even if they did not, the information regarding arrests is considered “public records” (freely available to the public). The reason arrest records are public records is for the people’s protection. We want to know who the government has arrested and why so that people aren’t mysteriously disappearing (which happens in other countries).

Today, this leads to the problem of an arrest following a person for their entire life, regardless of severity of the allegations and outcome of the case. This can detrimentally affect a person’s future. Because of these adverse effects, the State of Florida created the ability to expunge or seal an arrest record under limited conditions (see qualifying).

Florida Record Expungements Misconceptions

People mistakenly believe that having an arrest record sealed or expunged magically removes it from the internet entirely. This is completely wrong. The law only addresses the government agencies that maintain arrest histories (FDLE, Sheriff, Arresting Agency, State Attorney, Clerk of Court).

Expunging or Sealing Record Not Magic Bullet

The biggest misconception is that a Florida arrest record expungement or sealing is a one stop fix all. It is not. It is a necessary first step a person must take to limit the impact of an arrest. People need to understand that to limit the information’s impact the information must initially be dealt with at its source, which are the government agencies maintaining these records. That is what an expungement or sealing achieve.

What a Record Expungement or Sealing Does

An arrest record expungement or sealing requires those government agencies that maintain the arrest records to either destroy the record or make it inaccessible to the public (see difference between sealing and expunging records). Additionally, and more importantly – it makes the record a non-public record.

This is critically important to understand. Private companies that collect arrest records from these government agencies to sell to the public, employers, etc. depend on the records being “public records.” This shields them from liability. Once a record is no longer a public record, liability for distribution of that record can exist and most legitimate companies don’t want that.

Further, the expungement and sealing statutes legally allow a person whose record has been sealed or expunge to lawfully deny that particular arrest. This is also critical to understand once the record has been sealed or expunged. A person who has had their arrest record sealed or expunged must utilize this part of the law in order to take advantage of all the benefits provided by the law.

What a Record Expungement or Sealing Does Not Do

Some of the issues an arrest record expungement or sealing will not fix – and must be understood by anyone seeking this relief – relate to employment opportunities, immigration, and licensing.

Employment

There are misconceptions that, once a record is sealed or expunge, no employer will have access to it. There are specified “entitled entities” that, by law, will have some access to a record that has been sealed or expunged. These are typically government employment or employment with agencies that require a state issued license to operate (e.g. nursing home) (see State Required Background Checks).

Immigration

There is also misconceptions that an arrest record expungement or sealing will assist someone seeking an immigration VISA or immigration Status. Here people must be careful. Record expungements and sealings are limited to those arrests that resulted in the charges being dropped (or otherwise found not guilty) or minor non-violent offense that the person was found guilty of (but not convicted). Either an expungement or sealing will make those records inaccessible not only to the public at large but also to the person who was the subject of the arrest.

As pointed out above, FDLE sends their arrest data to the FBI. Immigration Services (and all other Federal agencies) receives its information from the FBI. Federal agencies are not bound by Florida law and therefore will have access to this information albeit it will remain limited and confidential (not accessible to the public).

It is important for people who are seeking immigration VISAs or Status to maintain certified copies of their arrest record (arrest affidavit, charging document, and case disposition) if they decide to expunge or seal their record because Federal agencies will request them.

Licensing

Obtaining a license for specified profession is subject to the laws of Florida. Believing that having your arrest record sealed or expunged will cure this issue is another misconception. People who have been arrested should review the eligibility requirements for those specific professions before moving forward. Because of the restrictions to which an expungement or sealing is available, if a person qualifies for either they should be okay. However, that alone should not be the only criteria to base this decision. Obtaining certified copies of your arrest record (see above) is necessary if a person decides to seal or expunge their record.

Private Background Check Companies

An arrest record expungement or sealing order does not notify private companies who have obtain this information prior to the record becoming non-public. Those companies will continue to disclose arrest records that have been sealed or expunged under Florida law until they are notified or are made aware of the change. This is probably the biggest misconception. It is also why a person, who has had their arrest expunged or sealed, understand all the benefits of the law, including the ability to deny the arrest.

Conclusion

An arrest record expungement or sealing is only the first step for a person who is seeking to move past their arrest record. It gives them the tools to move forward but it is not an all-in-one solution. When counseling anyone who is seeking to expunge or seal their record it is important that they understand what this process will do and what they will need to do once it is completed.

Additional Information

Florida Expungement Index

Expungement FAQs Page

Helpful Florida Expungement Links

Do You Need an Expungement Lawyer

Erase Your Florida Record: Book


Contact Eric J Dirga PA


Please note the date this article was published. The information listed above is subject to change as changes are made to the laws. The information written above is meant only to be for Informational Purposes Only and is not legal advice.

If any corrections or errors are found please notify me as soon as possible.

has been a member of the Florida Bar since 1995. His office is Eric J. Dirga, PA, located in Orlando, FL. He provides legal representation for expungement and sealing of records throughout the state of Florida.

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