Wiping the slate clean. Youthful mistakes can haunt people decades later
Wiping the slate clean
Taking a bar of soap off the shelf to wash up after going to the bathroom in a store proved to be one of the many costly mistakes in the history of shoplifting. Years later, the individual, now a doctor, couldn’t get a prestigious job because he had a criminal record.
It took time and money to unravel what amounted to a misunderstanding between an overzealous security guard and a young person who was simply frustrated because the restroom was out of soap.
“The judge took a look at this and ultimately decided to vacate the criminal offense,” said Michael Palmer, criminal law attorney at the firm of Anderson, Palmer, George, Walsh & Taylor. “My client who was young and at the time unrepresented by an attorney had pleaded guilty to this charge, just to get it over with quickly and inexpensively, not realizing the long-term implications. Unfortunately, these kinds of things happen more than you would think. People in their 20s make mistakes and those mistakes can come back to haunt them.”
Palmer is no stranger to vacating convictions, reducing felonies, or sealing court records for people who now are finding things like bar fights and possession of marijuana are obstacles to getting jobs or carrying a firearm.
“I find there are a lot of people who do not realize that they are eligible to petition the court for relief from their past criminal conviction and continue to struggle with the collateral consequences and stigma of it years later,” said Palmer. “Many people may think there is no hope to change their circumstances based upon what may have been older versions of the law but which is no longer the case.”
Past convictions and arrests are easy to find online, and employers use various services for background checks. But, it’s not just jobs at stake — depending on the crime, a person could have lost their ability to carry a firearm.
“The Second Amendment is a big issue in North Idaho,” said Palmer. “ People want to have their rights restored so they can go hunting, participate in shooting sports, or protect their family.”
An important thing to remember is that the Idaho courts have no authority to grant relief from judgments from other states or from the federal courts, said Palmer.
Here is Palmer’s expert advice about expungement, sealing records and setting aside convictions.
What is expungement?
From the perspective of people outside the legal community, the term “expungement” is generically used as a term to mean getting relief from a criminal conviction or, sometimes even more broadly, relief from a criminal charge. Depending on the circumstances, there can be a range of available types of relief that fall within the general category of “expungement.” These include vacating a criminal conviction and dismissing the underlying case, reduction of a felony conviction to misdemeanor, sealing part or all of a court file, purging records from law enforcement databases, obtaining a pardon, obtaining an order for restoration of civil rights including the right to possess a firearm, and, in certain types of cases, relief from the collateral consequences of a criminal conviction.
What are the challenges to getting a conviction set aside and records sealed?
Setting aside a criminal conviction and sealing a record are two different things. Each requires its own motion and the court has the authority to grant both, one or the other, or neither. To obtain either type of relief, in broad terms, it’s necessary to demonstrate that it is not contrary to the public interest for the Court to do so. More specifically, the person making the petition should show that they have successfully turned their life around since they were convicted of the crime and that they are now a responsible, contributing, and law abiding member of the community who is not a further risk to commit criminal offenses.
How long does it take from start to finish?
Each case is different and the length of time necessary to prepare and present the petition will depend on the petitioner’s specific circumstances. That said, a person bringing this type of petition should plan for a time frame of three to nine months for the majority of cases. There are exceptions that get decisions faster, and others that sometimes take even longer if something is particularly complicated.
What can be removed from a person’s criminal record?
A criminal charge which was brought against a person but never prosecuted or which resulted in an acquittal can be fully removed and expunged from a person’s record. Likewise, upon a proper showing of rehabilitation, a juvenile criminal conviction can be fully removed and expunged from their record. For adult offenses that resulted in misdemeanor convictions, upon a proper showing the conviction can be vacated and the case dismissed. For a felony conviction, again upon a proper showing of evidence and circumstances, the conviction can be fully vacated and the case dismissed, or, alternatively, reduced to a misdemeanor.
What can’t be removed?
Convictions that require registration as a sex offender cannot be vacated or reduced from felonies to misdemeanors.
What are the biggest challenges with getting court records sealed/convictions set aside?
A person seeking relief from the consequences of a criminal conviction has the burden of proving to the Court’s satisfaction that they 1) meet the legal requirements for the Court to grant them relief, and 2) that under the circumstances the Court should exercise its discretion to do so. The prosecuting attorney or the attorney general can object to the Court granting a motion to vacate, expunge, or seal a record and is allowed to present evidence and argument why the Court should not do so. If this happens, the person requesting relief will have to persuade the Court, over the government attorney’s objections, that it should do so regardless. This can make the process even more complicated and uncertain but does protect the general public from people getting relief when they should not.
What types of crimes result in having firearm rights being taken away?
Idaho Code section 18-310(2) has the full list. In Idaho these are all felony offenses. In general terms, though, felony crimes of violence, sex offenses, and drug crimes all result in the loss of the right to possess firearms. In addition to felonies, under federal law 18 United States Code 922(g), a person who has been convicted of misdemeanor domestic violence, or who is presently subject to a domestic violence restraining order, cannot possess a firearm or ammunition.
How do you get your firearm rights restored?
Firearm rights can be restored by obtaining a court order that fully restores the person’s civil rights and which vacates the underlying conviction which resulted in the loss of the right in the first place. Alternatively, Idaho Code section 18-310(3) provides authority for the Idaho commission of pardons and parole to restore a person’s right to possess a firearm.
Will a person be able to get a concealed weapons permit?
If a person has had their civil rights fully restored, including their right to possess a firearm, they are legally eligible under Idaho law to apply for a concealed weapons permit.
What else should people know about expungement related issues?
People often perceive the Court as indifferent to their situation. However, it has been my experience that judges really do like to see that people, despite having made a mistake which resulted in a criminal conviction, have since taken responsibility for their future and turned their lives around in a positive manner. It is for that same reason that our
legislature has enacted laws that allow for the Courts and the Executive branch to provide people relief from their criminal convictions. When the goals of sentencing have been met: Protection of the Public, Punishment, Deterrence, and Rehabilitation, unless a person has proven to be an incorrigible career criminal, their past conviction should not be something that serves to relegate them to the status of a second class citizen for the rest of their lives.
For more information: Contact Michael Palmer at (208) 665-5778.
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