A criminal record or criminal history is a list of a person’s interactions with the criminal justice system in a state or with the federal criminal justice system. It includes contact that a person has had with law enforcement officers, agencies, and the courts. It would include arrests, detentions in jail or prison, convictions, and more, e.g., probation violation hearings.
Although most criminal drug offenses are not classified as violent crimes, a drug offense on a person’s criminal record can severely impact a person’s life with negative consequences. For example, it may be more difficult for a person with a criminal record that includes drug offenses to get a job, get approval for a loan, or find housing. In some states, a felony conviction makes a person ineligible to vote in elections.
How Long Does a Drug Charge Stay On My Record?
Generally speaking, the contacts with law enforcement that appear on a person’s criminal record stay there for the length of a person’s life. There are certain types of criminal records that are automatically sealed or expunged, but these are usually records involving offenses a person committed in their youth. They are juvenile offenses, and they are the only ones that qualify for these automatic protections.
An adult who has had contacts with state and federal law enforcement can expect the record of their contacts to remain on their criminal record and accessible to anyone who wants to check it for the rest of their life. The negative consequences can last that long as well and, again, affect employment, housing, and educational opportunities. A criminal record can even prevent a person from getting a professional or occupational license.
Is Clearing a Criminal Drug Record Possible?
In some states, the record expunging process for removing an entry from a criminal record is formally known as “expungement.” In other states, it is known as “sealing” a criminal record.
Generally, expungement is a form of sealing a person’s criminal record so that only a very few authorities would have access to it. Some people can still access a person’s criminal record, e.g., a judge in another case, but only very few and not members of the public, e.g., prospective employers.
If a person is successful in getting a court to order expungement or sealing of a criminal record, they are no longer legally required to disclose the existence of the record to others.
Although the laws about what can be expunged or sealed and the process for doing it are different in different states, the following general guidelines for getting a record expunged are likely to apply in most states:
- Good behavior: A person wants to be able to show “good behavior” from the time of the offense that appears in their criminal record. So, it may be a requirement that a person not have any other criminal record for offenses committed after the offense they seek to expunge or seal. Or they want to show that they have participated in activities that would have a positive effect on themselves and/or on their community, e.g., drug rehabilitation;
- Waiting period: Once an individual has served and completed the requirements of their sentence, they must wait a certain period of time before they will be permitted to file a petition for expungement. This time frame or “waiting period” may last for as long as five to ten years after the requirements of the person’s sentence have been completed officially;
- Filing a request: As noted above, expungement or sealing is only rarely automatic. A person must pursue a legal process to request the actions. Firstly, the court finalizes the offense’s category based on several criteria. These criteria are the grade, elements, definition, and details surrounding the drug offense. A person would have to show the court any plea agreements, pre-sentence reports, and transcripts from any trial and sentencing hearings.
- The court can investigate any charges related to the person’s drug offense, but unproven claims or allegations cannot be investigated;
- Character review: Lastly, the court performs a character and conducts a review to learn who the person is. This would be a key factor in determining whether or not a court orders expungement or sealing of a criminal record related to a drug offense.
In addition, the nature of the drug charges may impact a court’s decision on whether to approve a request to clear a defendant’s criminal drug record. It also should be noted that even after a judge’s approval, it can take several months or longer to fully process an order for expungement.
Can Federal Drug Offense Records Be Expunged?
According to Section 404 of the federal Controlled Substance Act (CSA), only if a person under the age of 21 at the time of the offense is convicted of misdemeanor possession of a controlled substance and the person has no prior conviction may a federal court may expunge the record.
An additional condition of federal expungement is that the sentencing court must have imposed a sentence of probation before entry of judgment. Then, when the person completed their probation without violation, the court dismissed the case with no resulting conviction. Under these stringent conditions, expungement of all federal records of the drug offense is possible.
So, again, the CSA provides that a person who is found guilty of this type of offense may be able to have the entry removed from their federal criminal record if the following is true:
- The person was under the age of 21 years at the time of the offense;
- The offense is one of misdemeanor drug possession;
- The person must not have had any convictions for federal or state drug charges before they were charged with the federal misdemeanor;
- The person must have been sentenced to probation and have completed all of the requirements of their probation so that the person was not convicted of the offense.
Are There Differences Between Felony and Misdemeanor Drug Charges?
There are many differences between felony and misdemeanor drug offenses. Specifically, for the purposes of clearing an individual’s criminal drug record, it is much more difficult to clear an entry in a criminal record related to a felony drug offense than it is to remove one related to a misdemeanor drug offense.
It may be possible to have a record related to a felony drug offense sealed or expunged under very narrow conditions. However, courts tend to be more willing to grant a request for expungement when a drug crime is a misdemeanor offense. That is because felony criminal offenses are generally more serious than misdemeanor drug offenses.
For example, with regard to drug offenses, in particular, drug trafficking and drug manufacturing are two types of felony drug crimes that may not be eligible for expungement.
On the other hand, a record related to a misdemeanor drug offense, such as possession of less than an ounce of marijuana or hashish or drug use, may be one that is more likely to be eligible for expungement. This is because the law considers crimes like drug trafficking and manufacturing to be more harmful to society than personal use or possession for personal use, crimes which are primarily only harmful to the individual.
Finally, one other important factor is that a court is much more likely to approve a petition for expungement or sealing when the criminal drug record is for an arrest rather than a charge or conviction. If an arrest did not lead to the perpetrator being charged with a crime or convicted of it, the perpetrator has a much stronger case for expungement or sealing.
Do I Need a Lawyer for Help With My Criminal Drug Record?
If you need to get a drug charge expunged from your record, you want to consult a local drug expungement lawyer for guidance. The option to clear or expunge an entry from a criminal drug record is not available in every situation. Also, the law regarding the procedure is different in each state. Even when the option is available, it is not always the easiest process to complete. LegalMatch.com can quickly connect you to a lawyer who can help.
An experienced criminal defense lawyer will be able to assist you in navigating the process for clearing or expunging an entry from your criminal drug record. Your lawyer can determine whether or not this request would be successful based on the facts of your case.
Your lawyer can also inform you of your rights and protections under the law in your state, as well as what else you can do if clearing your criminal drug record is not feasible under the circumstances. In addition, your lawyer can provide legal representation in court and also help you fix any errors if you think there is a mistake with an entry on your criminal drug record.
