denial rule exceptions

Exceptions To Denial Rule

The biggest benefit you receive when your record has been sealed or expunged under Florida law may be the legal ability to deny the arrest ever occurred. However, there are a few denial rule exceptions to this ability.

When You Have to Disclose Your Expunged or Sealed Arrest

There are several exceptions to the denial rule that you must follow. These generally involve employment with state agencies or entities contracted with the state that directly deal with children, the elderly, or the mentally or physically handicapped. It also involves anything that can be considered “caregiver.”

Let’s first take a look at the deniability benefit you receive once your record has been sealed or expunged.

Expunged And Sealed Arrests Are No Longer Public Records

Once your criminal record has been sealed or expunged, the records with the:

  • Clerk’s Office are no longer public. No one can access those records without a court order to do so.
  • Criminal records held by Law Enforcement are also made confidential. If they are expunged they have to physically destroy their files. This includes the State Attorney’s Office.
  • The Florida Department of Law Enforcement removes it’s criminal record information from public dissemination.

In Most Instances You Can Deny The Arrest Happened After Your Record Is Sealed / Expunged

Florida law allows you to deny that your expunged or sealed arrest ever occurred. The actual language of the statute is as follows:

[Expungement] The person who is the subject of a criminal history record that is expunged under this section or under other provisions of law . . . may lawfully deny or fail to acknowledge the arrests covered by the expunged record.

[Sealing] The subject of a criminal history record sealed under this section or under other provisions of law . . . may lawfully deny or fail to acknowledge the arrests covered by the sealed record.

This is the biggest benefit of expunging or sealing your criminal arrest record. Many private companies collect public records (often times sold to them by the county clerk’s office or F.D.L.E.) prior to a record being sealed or expunged. They then sell this information online. After a record is sealed or expunged these companies may still be selling this information because they are not aware that the record is no longer a public record. The ability to lawfully deny the arrest gives you a huge advantage over those companies – if you take advantage of it.

Denial Rule Exceptions

There are exceptions when you can deny that you have been arrested. It is important to know these exceptions before you decide to seal or expunge your record and very important to know these after you have sealed or expunged your record.

These mainly address employers for businesses that deal with children, the elderly, or the physically or mentally handicapped. These include Nursing Homes and Day Care Centers. It also includes applications for employment with a criminal justice agency including the fire department.

F.D.L.E. keeps this list updated on their website of ⚖ Entitled Agencies.

Below are three Attorney General Opinions regarding the denial rule for expungements.

AGO 86-56, June 19, 1986: Expungement order, law enforcement certification – Law enforcement applicant who has had record expunged under s. 943.058(2)(a)-(d), F.S., may not lawfully deny or fail to disclose criminal history records that would disqualify candidate under s. 943.13(4), F.S. if conviction was for a felony or misdemeanor involving perjury or false statement.

AGO 86-14, February 12, 1986: Effect on expunction on personnel file – Law enforcement officer hired by municipality afterward expunged an arrest. City asked if information concerning arrest in personnel file was required to be expunged. Summary: Yes and order was not to be placed in personnel file.

AGO 84-85, August 22, 1984: Employment in criminal justice agency, expunged record – Indicating that a candidate for employment with a criminal justice agency, who has had a criminal record expunged, is under no authority to disclose this information to the criminal justice agency. This has since been addressed by statute and is no longer the law.

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More Information about Florida Expungements:

⚖ Florida Record Expungements and Sealings