ERIC J DIRGA, PA

An Arrest, A Background Check, Your Job

an arrest your job

Unfortunately, people often find themselves wondering what impact a recent arrest will have on their current or future employment. This usually occurs soon after the arrest occurs or, if young, years later when the impact is felt.

An “arrest” is not affected if all charges were either dropped or never filed. An arrest marks your criminal history regardless of the outcome of the case and the only legal method to reduce this impact is called “expungement,” or “sealing” the record or “non-disclosure” orders (see below).

How Does an Arrest Affect Your Job

An arrest for the common crimes, such as simple DUI or some minor misdemeanor or innocuous felony, will eventually have you thinking about how this will affect your employment. The impact can be immediate or years later.

An Arrest Will Affect Your Employment

It is not whether an arrest will affect your employment, it is to what degree will it affect your employment. The question also concerns when it will affect your current job or future jobs.

An arrest when we are young may not seem immediately devastating. The effects may only appear when you have begun your employment search years later. However, if you are already in your career field, the impact may be immediate.

Government Employment

Government employment will definitely be impacted by any arrest. Almost all government jobs will entail some kind of pre-screening (see, Level 1 and 2 Background Checks) and follow-up screenings. However, using a criminal arrest history in the hiring decision does have restrictions.

Federal law makes a distinction between the use of arrests and convictions and there are protections under the Fair Credit Reporting Act.

Florida state employment also has protections regarding the use of criminal arrest histories (see, Your Criminal Record and Your Job). However, in all instances a criminal record can be used as a pre-judge of character for the particular field of employment.

In other words, despite all the pretty language, an arrest is a negative mark on any government application.

Private Sector Employment

The private sector is also governed by federal regulations regarding the use of background checks for employment (and some state regulations). You should be aware of these protections, even if they are minimal.

More important is the movement to push criminal history information to the back of the hiring process so that everyone has a chance to show their qualifications and skills for a particular position (See this article from Workplace Fairness).

Specific skills, regardless of background, are also considered since certain jobs required skills that few people have. States provide re-entry services for ex-offenders however many of these services aren’t job training centers. They are just assistance until you can stand on your own feet.

Private entities solicit ex-offenders for job training (see this example) which may or may not be self-serving – however, these lists definitely point out areas where an ex-offender can look for career fields.

Bottom line for private sector jobs is whether or not you have a needed skill. There are job-training agencies out there that solicit to ex-offenders.

For example, people who own boats typically require a mechanic to maintain the boat’s motor(s). Boat owners don’t typically decide who they hire based on a background check. They just want the person to be a known good mechanic and their boat fixed.

Self Employment

Self employment is always a possibility. Professional fields, such as real estate, offer the opportunity to advance to broker status and having your own business. You don’t have to worry about getting hired when you are self employed however, you do have to be concerned with clients becoming aware of your background.

Most people who check other people’s criminal history use private companies, such as Truthfinder or BeenVerified. These companies obtain their information from government agencies such as Clerks of Court and state agencies, such as the Florida Department of Law Enforcement [FDLE] (see below).

Since self-employed people depend heavily on their reputation, knowledge of an arrest being circulated around the community can be devastating.

Will an Arrest Show-up On My Background Check

An arrest can be the traditional handcuffs, back of the police car, trip to the jail or it can be a “notice to appear.” If anyone has ever been accused of shoplifting and been released with a piece of paper that instructed you to appear in court – that is technically an arrest.

A background check can either be a criminal history from a governmental records office or from a private “background check” company. Official government criminal histories are records received from law enforcement agencies and the courts. Private background check information is obtained through public records held by government agencies.

Before Case is Resolved

Once you have been arrested, the arrest information is suppose to be transmitted to the state agency that keeps a record of all arrests that occur in the state (which is then forwarded to the FBI). In Florida, the agency is the FDLE.

Technically, your arrest history will start as soon as the information is transmitted to that agency. This can be just days after your arrest. Jails are very good at transmitting this information.

When a person receives a Notice to Appear the state agency may not be immediately notified. However, the Clerk of Court will generate a criminal case file number within their records which is a public record.

Even if the state agency (e.g., FDLE) has no record of the arrest, the Clerk of Court will have a public record of the case which will include arrest data. Either way, private background check companies obtain data from the state agency and the clerk of court.

Moreover, the records held by the Clerks of Court are increasingly being digitized and posted online. In Florida, almost 100% of the Clerk’s of Court already have their records online and plans are underway to make access to these records easier.

Case Was Dismissed

One of the biggest misconceptions is the belief that if the charges are dropped or dismissed or not even filed then there is no arrest record. This is false. As pointed out above, the arrest history begins with the arrest. It does not get erased because the charges were not proved or dropped.

Once you have been arrested, private companies will eventually have this information and sell it to their customers. Their customers include businesses (e.g., rental management companies, employers, etc.) and individuals.

Additionally, operations such as mugshots.com and others have almost immediate access to arrest data through the jails. County Jails and Sheriff’s increasingly post arrest data online as well.

Can an Arrest Be Erased From My Record

Most states have statutory procedures to remove arrests from a criminal history. A common term for this is “expungement.” It also can be called “record sealing” and “non-disclosure” order (see What is an Expungement in Florida).

Different States, Different Laws

What term is used depends on the state where the arrest occurred. You must use the state laws where the arrest occurred unless you were arrested on an out-of-state warrant. In that situation you need to use the state laws where the crime occurred. (See, States With Expungements for more information).

You can also look up information at the Electronic Information Privacy Center [EPIC] about current laws and proposed legislation regarding disclosure of arrest information (among other issues).

For help expunging a prior arrest you need to search for a lawyer that practices expungement law in the state where the arrest occurred.

Florida Criminal Arrest Record Expungement and Sealing

Florida has an extensive expungement and sealing laws. You must qualify to have your record sealed or expunged. If you qualify, the procedure takes roughly 8-12 months to complete. Understand that this is the first step to moving past a criminal record. Many people have the misconception that this procedure is a magic bullet. It is not, but it is a huge step in the right direction.

Once Your Record is Expunged

You need to know exactly what the expungement or sealing has done to take full advantage of the benefits. There are still a few things that you should do to make sure that your arrest record does not affect you in the future. Make sure you discuss this with your attorney at the time you hire him/her and once the process on their end is complete.

Additional Information

Florida Expungement Links

Do-It-Yourself Expungement

What Remains After an Expungement (Sealing)

FDLE Criminal History Checks


For More Information Regarding Florida Expungements 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.

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.

Your Criminal Record and Your Job

criminal background and future jobs

A lot of people are concerned about how a criminal history record will affect them as it relates to their employment. Can they be fired, will they lose the promotion, what can they do to hide their criminal record from their employer.

Caveat Regarding This Post

This post only deals with Florida state government employees. The laws only apply to what government can do to government employees. They cannot tell what private companies can do to their employees that have a criminal record. In previous posts I talked about the Level 1 and Level 2 Background Checks. You should read up on that when you get the chance.

The Impact of a Criminal History Record on Your Employment

I’m an attorney and I help people expunge their criminal record. That means I help people hide their criminal record. The biggest concern I get is how a criminal record will impact their employment. Hopefully, this post will shed some light on this topic.

Florida Law and Your Job

The Florida Statutes (that can be found online) actually have some protections for people who have a criminal record. Below I go through the pertinent ones with comment.

Convicted or Not Convicted

I use the term “criminal record” or “criminal history record” while the statutes use the word “conviction.” A strict interpretation of the word “conviction” under Florida law means that a court found a person guilty of a crime and adjudicated the person guilty. Florida law allows a court to find someone guilty of a crime and “withhold” the adjudication of guilt and this is typically not a conviction.

However, often times the legislature redefines the term “conviction” within specific statutes to include instances where a court “withheld” the adjudication. An example of this is the following language:

“Convicted” means a finding of guilt or the acceptance of a plea of guilty or nolo contendere, in any federal or state court or a court in any other country, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of the case. Section 633.412(2), Florida Statutes (as it relates to firefighter qualifications).

Therefore, I use criminal history record or simply criminal history, pointing out that any arrest on your criminal history record could impact your ability to obtain a state issued license or a state, county, or municipal job.

Specific Jobs, Specific Statutes

Note also that specific jobs may have specific statutes that govern the employment requirements and restrictions. Firefighters are an example of this, as noted above. Unfortunately, I cannot include all these statutes within this post. In the future I may focus on specific employment areas, such as Teacher Qualifications that I previously wrote about.

Florida Statutes Regarding Employment

I will be reviewing the following Florida Statutes sections; 112.011, 125.5801, 166.0442, and 775.16. My comments are in normal text.

112.011 Disqualification from licensing and public employment based on criminal conviction.—
(1)(a) Except as provided in s. 775.16 (see below), a person may not be disqualified from employment by the state, any of its agencies or political subdivisions, or any municipality solely because of a prior conviction for a crime. However, a person may be denied employment by the state, any of its agencies or political subdivisions, or any municipality by reason of the prior conviction for a crime if the crime was a felony or first-degree misdemeanor and directly related to the position of employment sought.

The language of this section needs to be clarified because it can easily be misconstrued. The first takeaway that you must understand is the use of the phrases “may not be disqualified” and “may be denied.” An initial reading of this section may lead you to believe that a prior conviction is no bar to employment. However, all this section is really saying is that a past arrest cannot be the sole reason for barring employment. The language “directly relating to the position of employment sought” is telling us that other statutes that relate to the specific employment or license sought will be the authority on the standards for employment in that specific field.

Second degree misdemeanors would seem to not be a bar to employment, but again, specific statutes may include them.

(b) Except as provided in s. 775.16, a person may be denied a license, permit, or certification to pursue, practice, or engage in an occupation, trade, vocation, profession, or business by reason of the prior conviction for a crime if the crime was a felony or first-degree misdemeanor that is directly related to the standards determined by the regulatory authority to be necessary and reasonably related to the protection of the public health, safety, and welfare for the specific occupation, trade, vocation, profession, or business for which the license, permit, or certificate is sought.

Here the statute is clarifying the fact that specific employment may have specific standards that will pre-empt this section. This means your criminal history record can be used to prevent your employment or licensing in specified areas. See below regarding the reference to s. 775.16, Fla. Stat.

(c) Notwithstanding any law to the contrary, a state agency may not deny an application for a license, permit, certificate, or employment based solely on the applicant’s lack of civil rights. However, this paragraph does not apply to applications for a license to carry a concealed weapon or firearm under chapter 790.

This subsection simply points out that the lack of civil rights (felony were the court adjudicated the defendant guilty) cannot be the sole basis for barring employment.

(2)(a) This section does not apply to any law enforcement or correctional agency.

(b) This section does not apply to the employment practices of any fire department relating to the hiring of firefighters.

(c) This section does not apply to the employment practices of any county or municipality relating to the hiring of personnel for positions deemed to be critical to security or public safety pursuant to ss. 125.5801 and 166.0442.

Some exceptions but not all. Seeking a state issued license in any field should be researched beyond this section.

(3) Any complaint concerning the violation of this section shall be adjudicated in accordance with the procedures set forth in chapter 120 for administrative and judicial review.

This just tells us that cases arising from this section are handled under administrative law procedures.

History.—ss. 1, 2, 3, ch. 71-115; s. 1, ch. 73-109; s. 20, ch. 81-24; s. 30, ch. 88-122; s. 1, ch. 90-266; s. 678, ch. 95-147; s. 3, ch. 2002-169; s. 3, ch. 2011-207; s. 90, ch. 2013-183.

125.5801 Criminal history record checks for certain county employees and appointees.—
(1) Notwithstanding chapter 435, a county may require, by ordinance, state and national criminal history screening for:

(a) Any position of county employment or appointment, whether paid, unpaid, or contractual, which the governing body of the county finds is critical to security or public safety;

(b) Any private contractor, employee of a private contractor, vendor, repair person, or delivery person who is subject to licensing or regulation by the county; or
(c) Any private contractor, employee of a private contractor, vendor, repair person, for-hire chauffeur, or delivery person who has direct contact with individual members of the public or access to any public facility or publicly operated facility in such a manner or to such an extent that the governing body of the county finds that preventing unsuitable persons from having such contact or access is critical to security or public safety.

(2) The ordinance must require each person applying for, or continuing employment or appointment in, any such position, applying for initial or continuing licensing or regulation, or having such contact or access to be fingerprinted. The fingerprints shall be submitted to the Department of Law Enforcement for a state criminal history record check and to the Federal Bureau of Investigation for a national criminal history record check. The information obtained from the criminal history record checks conducted pursuant to the ordinance may be used by the county to determine a person’s eligibility for such employment or appointment and to determine a person’s eligibility for continued employment or appointment. This section is not intended to preempt or prevent any other background screening, including, but not limited to, criminal history record checks, which a county may lawfully undertake.
History.—s. 1, ch. 2002-169; s. 1, ch. 2013-116.

Certain public employment requires a criminal history check. I discuss this in my post regarding Level 1 and Level 2 Background Checks. Chapter 435 governs these background checks. This tells us that a county can require criminal history background checks that the county finds “is critical to security or public safety.” The standard for what is critical to security or public safety is left to the county to determine.

166.0442 Criminal history record checks for certain municipal employees and appointees.—
(1) Notwithstanding chapter 435, a municipality may require, by ordinance, state and national criminal history screening for:
(a) Any position of municipal employment or appointment, whether paid, unpaid, or contractual, which the governing body of the municipality finds is critical to security or public safety;
(b) Any private contractor, employee of a private contractor, vendor, repair person, or delivery person who is subject to licensing or regulation by the municipality; or
(c) Any private contractor, employee of a private contractor, vendor, repair person, for-hire chauffeur, or delivery person who has direct contact with individual members of the public or access to any public facility or publicly operated facility in such a manner or to such an extent that the governing body of the municipality finds that preventing unsuitable persons from having such contact or access is critical to security or public safety.

(2) The ordinance must require each person applying for, or continuing employment or appointment in, any such position, applying for initial or continuing licensing or regulation, or having such contact or access to be fingerprinted. The fingerprints shall be submitted to the Department of Law Enforcement for a state criminal history record check and to the Federal Bureau of Investigation for a national criminal history record check. The information obtained from the criminal history record checks conducted pursuant to the ordinance may be used by the municipality to determine a person’s eligibility for such employment or appointment and to determine a person’s eligibility for continued employment or appointment. This section is not intended to preempt or prevent any other background screening, including, but not limited to, criminal history background checks, that a municipality may lawfully undertake.
History.—s. 2, ch. 2002-169; s. 2, ch. 2013-116.

This is similar to the above noted section except it applies to municipalities.

775.16 Drug offenses; additional penalties.—
In addition to any other penalty provided by law, a person who has been convicted of sale of or trafficking in, or conspiracy to sell or traffic in, a controlled substance under chapter 893, if such offense is a felony, or who has been convicted of an offense under the laws of any state or country which, if committed in this state, would constitute the felony of selling or trafficking in, or conspiracy to sell or traffic in, a controlled substance under chapter 893, is:
(1) Disqualified from applying for employment by any agency of the state, unless:
(a) The person has completed all sentences of imprisonment or supervisory sanctions imposed by the court, by the Florida Commission on Offender Review, or by law; or
(b) The person has complied with the conditions of subparagraphs 1. and 2. which shall be monitored by the Department of Corrections while the person is under any supervisory sanctions.

Simply put, an offense for selling or trafficking (possessing an amount set by statute) on a person’s background will require that all court conditions be completed before that person can apply for employment (so long as this background is not prohibited by a more specific statute).

The person under supervision may:
1. Seek evaluation and enrollment in, and once enrolled maintain enrollment in until completion, a drug treatment and rehabilitation program which is approved by the Department of Children and Families, unless it is deemed by the program that the person does not have a substance abuse problem. The treatment and rehabilitation program may be specified by:
a. The court, in the case of court-ordered supervisory sanctions;
b. The Florida Commission on Offender Review, in the case of parole, control release, or conditional release; or
c. The Department of Corrections, in the case of imprisonment or any other supervision required by law.

2. Submit to periodic urine drug testing pursuant to procedures prescribed by the Department of Corrections. If the person is indigent, the costs shall be paid by the Department of Corrections.

(2) Disqualified from applying for a license, permit, or certificate required by any agency of the state to practice, pursue, or engage in any occupation, trade, vocation, profession, or business, unless:
(a) The person has completed all sentences of imprisonment or supervisory sanctions imposed by the court, by the Florida Commission on Offender Review, or by law;
(b) The person has complied with the conditions of subparagraphs 1. and 2. which shall be monitored by the Department of Corrections while the person is under any supervisory sanction. If the person fails to comply with provisions of these subparagraphs by either failing to maintain treatment or by testing positive for drug use, the department shall notify the licensing, permitting, or certifying agency, which may refuse to reissue or reinstate such license, permit, or certification. The licensee, permittee, or certificate holder under supervision may:
1. Seek evaluation and enrollment in, and once enrolled maintain enrollment in until completion, a drug treatment and rehabilitation program which is approved or regulated by the Department of Children and Families, unless it is deemed by the program that the person does not have a substance abuse problem. The treatment and rehabilitation program may be specified by:
a. The court, in the case of court-ordered supervisory sanctions;
b. The Florida Commission on Offender Review, in the case of parole, control release, or conditional release; or
c. The Department of Corrections, in the case of imprisonment or any other supervision required by law.
2. Submit to periodic urine drug testing pursuant to procedures prescribed by the Department of Corrections. If the person is indigent, the costs shall be paid by the Department of Corrections; or

(c) The person has successfully completed an appropriate program under the Correctional Education Program.

Starting with subsection (2) above, a person must complete all sanctions/requirements of the court for being found guilty of selling or trafficking in (possessing an amount set by statute) before he/she can apply for a trade license.

The provisions of this section do not apply to any of the taxes, fees, or permits regulated, controlled, or administered by the Department of Revenue in accordance with the provisions of s. 213.05.
History.—s. 2, ch. 90-266; s. 21, ch. 92-310; s. 13, ch. 95-325; s. 292, ch. 99-8; s. 296, ch. 2014-19; s. 14, ch. 2014-191.

After a review of these statutes, it seems clear that the language prevents public entities from barring employment solely on the basis of a prior arrest and finding of guilt. However, other statutes that address specific types of employment, e.g., teaching, firefighting, law enforcement, will control and have priority in the employment decision process.

Language Can Be Misleading to Layperson

The language of these statutes can be misleading to the layperson who is seeking employment and who has a criminal history record. It is therefore important to understand that state issued licenses typically have their own statutes governing the requirements for issuing the license. Additionally, employment with a state, county, or municipality may require a criminal history background check based on the discretion of those governmental entities.

How Does This Affect Expunging or Sealing

How does this affect a person’s decision whether or not to expunge or seal their arrest record? Often times, people seeking to expunge or seal their arrest record do not disclose to their attorney that they are seeking a license or employment. When the expungement or sealing is completed they then find out that it has had no effect in their pursuits. This can lead to some arguments with their attorney (as to why they paid to have their record expunged or sealed).

It should be asked of all potential clients what the purpose is for their desire to have their record expunged or sealed. It should also be disclosed that the expungement or sealing of their record may not be the cure that they seek (see Entitled Entities on FDLE’s website). However, it should also be pointed out that expunging or sealing their record should be done regardless of their current situation due to the time it takes to complete and protections it does offer even if it means the person may have to seek a different vocation.

Additional Information

Helpful Expungement Links

An Arrest, Background Check, and Your Job

The Effect of a Pardon


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.

“Relates To” – The Latest Expungement Objection

relates to

The latest expungement objection (more specifically toward the sealing of records) has to do with the statutory language (that can be found in both ss. 943.0585 and 943.059, Fla. Stats.); “A criminal history record that relates to a violation of…[.]” Prosecutors (and judges) are now arguing that even if they drop, orally amend, or otherwise modify the original charges, if a person was originally charged with a prohibited offense then they are prohibited from sealing their arrest.

This was first raised not by the prosecution but by the Florida Department of Law Enforcement [FDLE]. FDLE refused to issue a Certificate of Eligibility because, in their minds, the offense the defendant admitted to was “related to” (but was not) the initial charge which were prohibited by statute.

Lazard v. Florida, 229 So.3d 439 (Fla. 5th DCA 2017)

In Lazard v. State, 229 So.3d 439 (Fla. 5th DCA 2017), the appellant was denied a Certificate of Eligibility to have his record sealed. The Florida Department of Law Enforcement [FDLE] originally denied the Certificate of Eligibility because FDLE claimed the charge “related to” an offense prohibited from being sealed.

The Appellant was originally charged (by Information) with Aggravated Child Abuse, a crime specifically prohibited from being sealed. Ultimately, the State agreed that the appellant could plea to the offense of Contributing to the Dependency of a Child, a misdemeanor (not specifically prohibited by statute). The State did not file an amended Information setting forth facts about the offense of contributing to the dependency of a minor. Id., footnote 1.

Several years later the appellant applied for a Certificate of Eligibility from the FDLE. He was denied the certificate. FDLE’s explanation was that his criminal history related to a prohibited offense.

Appellant filed a motion to compel which was denied by the Circuit Court. The Circuit Court’s reasoning was that the appellant had pled to a charge that “relates to” an act of domestic violence. From this ruling the appeal was initiated.

The District Court Ruling

The District Court made a specific ruling on when FDLE must issue a Certificate of Eligibility. Citing section 943.059(2), Florida Statutes, the Court pointed out the clear language of the statute. FDLE “shall issue” a certificate of eligibility so long as the applicant follows subsections (a) thru (f). If an applicant complied with the statute, FDLE must issue the certificate.

That part of the ruling really didn’t change much, except maybe to temper FDLE’s enthusiasm to make prophylactic legal objections outside of the courtroom. However, the reason for the initial denial by FDLE of the appellant’s certificate had been raised and will lead more prosecutors to using the “relates to” objection in the future.

But there are problems with this…

“A criminal history record that ‘relates to’ a violation of…”

Both the expungement statute (s. 943.0585, Fla. Stat.) and the sealing statute (s. 943.059, Fla. Stat.) have the identical language that this new objection surrounds. Specifically:

A criminal history record that relates to a violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, former s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 916.1075, a violation enumerated in s. 907.041, or any violation specified as a predicate offense for registration as a sexual predator pursuant to s. 775.21, without regard to whether that offense alone is sufficient to require such registration, or for registration as a sexual offender pursuant to s. 943.0435, may not be expunged, without regard to whether adjudication was withheld, if the defendant was found guilty of or pled guilty or nolo contendere to the offense, or if the defendant, as a minor, was found to have committed, or pled guilty or nolo contendere to committing, the offense as a delinquent act.

-Section 943.0585, Florida Statutes, dealing with the expungement of records.

A criminal history record that relates to a violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, former s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 916.1075, a violation enumerated in s. 907.041, or any violation specified as a predicate offense for registration as a sexual predator pursuant to s. 775.21, without regard to whether that offense alone is sufficient to require such registration, or for registration as a sexual offender pursuant to s. 943.0435, may not be sealed, without regard to whether adjudication was withheld, if the defendant was found guilty of or pled guilty or nolo contendere to the offense, or if the defendant, as a minor, was found to have committed or pled guilty or nolo contendere to committing the offense as a delinquent act.

-Section 943.059, Florida Statutes, dealing with the sealing of records.

The Argument and Absurd Results

The logical thought process that a lesser charge someone enters a plea to “relates to” the original charge he was arrested for makes sense – in one respect. The defendant would not have been found guilty of the lesser charge had he or she not first been arrested or charged for the higher charge.

Anyone who has practice criminal law knows that a police report is often embellished and incomplete and overcharged. Prior to a trial, the relationship between the police report (or the charging document based on the police report) and what the defendant ultimately takes responsibility for is, most often, speculative after the fact.

One of the best and most common examples of this is the often mistakenly charged “Burglary of a Dwelling” offense (prohibited from being sealed) that turns into a simple trespass. Does the trespass “relate to” the burglary of a dwelling? Should a person seeking to seal his arrest record where he was ultimately found guilty of trespass be denied because he was arrested for burglary?

The other problem is over-charging. It is law enforcement that decides what will show up first on a person’s arrest record. An arrest record begins with the arrest. A person arrested for “Burglary of a Dwelling” will have an arrest record starting with a date of arrest for a burglary, not a trespass. It is not modified to show the outcome of the criminal case. Whether it was reduced, dropped, or never filed on will only appear at the bottom, in some acronym language, if at all.

The Point is for a Second Chance

The original point of sections 943.0585 (expungement) and 943.059 (sealing) were to give people a second chance. Today, the purpose is two-fold. In the past the protection, which allowed for denial of the arrest, would have been enough. Today, with the advent of the Information Age, the protection is to also remove the blemish from the internet record.

It helps no one to have people pay for an over-charged offense, that potentially enforces a barrier to employment, promotion, or any type of financial advancement, for a lifetime. We all do better when we collectively all do better. By allowing a legal method for removing an arrest record after the person has paid their “debt to society” not only makes sense, it is just.

What You Must Do to Protect Your Client

After the Lazard case, it would seem that a defendant should use all methods to protect him or herself when coming to a resolution. Amending a prohibited offense to a lesser crime that can be sealed has been the first step. Now, an oral amendment by the Office of the State Attorney may not be enough.

Physically amending the information, spelling out only the elements of the lesser offense may be required (and is the best option for serious offenses). Unfortunately, we all know that would mean extra work for the prosecution and they are already swamped. Asking for this “effort” is necessary for serious crimes but may be impractical for “common” crimes (I’ll leave that to your imaginations).

Having the prosecutor, at the time of the oral amendment, state on-the-record that his or her office will not object to a subsequent request to seal the record (provided the defendant otherwise qualifies) may be the best option. I would also ask that it be annotated on the defendant’s disposition.


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.