By Chris Hendricks, Attorney at Law
The French novelist Marcel Proust once said, “There is no man, however wise, who has not at some period of his youth said things, or lived in a way the consciousness of which is so unpleasant to him in later life that he would gladly, if he could, expunge it from his memory.”
Many, gaining wisdom and experience in life, regret the mistakes of their youth, particularly if they have made mistakes resulting in a record. A criminal history can haunt a person long after the sentence is complete. Luckily, Kentucky now has expansive expungement statutes that make the process of erasing the legal mistakes of your past easier.
Under the current state of Kentucky law, cases wherein all charges are dismissed are eligible for expungement, regardless of the type of offense. Presently, if a case is dismissed, it is automatically expunged by the clerk of the court. Older cases that were dismissed, however, would still require an expungement petition. There is no fee for filing a petition to expunge a dismissed case.
Most misdemeanor convictions are eligible for expungement. There are some exceptions. If a conviction may result in the same or a similar future conviction being enhanced, that is, the penalty increased because of the prior conviction, it is ineligible for expungement. Also, sexually based offenses and offenses that involve a child as the victim are ineligible for expungement. Finally, a person petitioning a court for expungement cannot have been convicted of a separate felony or misdemeanor in the five years prior to filing the petition, nor can a felony or misdemeanor charge be pending against the person requesting expungement. There is a filing fee for a petition to expunge an eligible misdemeanor, payable for each case.
Some specific felony convictions are now eligible for expungement due to recent legislation that amended the expungement statutes. Class D felonies, which carry a potential penalty of one to five years in the penitentiary, are eligible for expungement unless they fall within one of the same categories that make certain misdemeanors ineligible for expungement. Also, the same requirements exist for felony expungement petitions regarding no convictions in the immediately preceding five years and no current pending felony or misdemeanor charges. There is also a filing fee for a petition to expunge an eligible felony, payable for each case. Any other class of felony conviction – those with a potential penalty of over five years in the penitentiary, are not eligible for expungement by the court.
Expungement of an eligible felony or misdemeanor conviction cannot be granted until five years following completion of his or her sentence, which includes any time on probation, parole, or conditional discharge, or if a sentence of imprisonment is served in full by the petitioner. For example, if a person is convicted of a misdemeanor and a jail sentence is suspended by the court, contingent on the person’s compliance with specific conditions, that sentence is “conditionally discharged.” The maximum time for a conditional discharge is two years. Therefore, once a two-year conditional discharge expires, an additional period of five years must pass before an expungement can be granted, bringing the total waiting period to petition for expungement to seven years.
Prior to filing a petition to expunge an eligible felony or misdemeanor conviction, one must obtain a certificate of eligibility. An application for the certificate of eligibility is only available online and a fee is required when it is submitted. The certificate of eligibility is prepared by the Kentucky State Police records branch and ensures the judge and prosecutor reviewing the petition for expungement have accurate and current information regarding the status of the person filing the petition.
It is important to consult an attorney that is experienced in the expungement process if you wish to seek expungement of a criminal conviction. Attempting to navigate the justice system, even with something as straight forward as an expungement, can be a daunting task. Erasing the mistakes of your past is possible and anyone with a conviction eligible for expungement should begin the process as soon as the time for waiting to petition the court passes.
*This content is for informational purposes only and not intended to constitute legal advice, is not a substitute for professional legal counsel, and does not create an attorney-client relationship. This is for general knowledge and should not be relied upon for specific legal situations.
Chris Hendricks is an attorney in Murray, Kentucky. A native of Murray, he earned a Bachelor of Arts from Murray State University. Chris was employed in law enforcement for 11 years before pursuing a career in the practice of law. After earning his law degree from Southern Illinois University School of Law, Chris received a license to practice law in Kentucky in 2014. He focuses on criminal defense, appeals, personal injury and family law. He resides in Murray with his wife. They have two daughters, ages 22 and 19.
Read more from Chris: The Miranda Warning: Fact v. Fiction
