There is no question that getting a criminal record expunged, or sealed, can make things a lot easier for someone with a record of arrest or conviction. However, many people are surprised to discover that there are some circumstances under which an expunged record may still be visible to others.
It Depends on the Type of Expungement
To determine who may be able to see an expunged record, we must first determine the type of expungement the person received.
In Oklahoma, there are two types of record expungement: a deferred sentence expungement (22 O.S. § 991c) or a full record expungement (22 O.S. § 18). Here are the most recent changes to Oklahoma's expungement laws.
The most common type of record expungement is the expungement of a deferred sentence upon completion of probation. In this case, a defendant pleads guilty to some crime, but instead of convicting the person, a judge delays acceptance of the guilty plea. Instead, the judge orders probation for the defendant. If the person fails to adhere to the terms of his or her probation, then the prosecution will likely file a motion to accelerate sentencing, the judge will accept the guilty plea, and the defendant will be convicted of the crime and sentenced.
However, if the defendant successfully completes probation, the judge then dismisses the case. The court record is updated to reflect a plea of not guilty and to show a dismissal of the charge.
If a person's court record is expunged under § 991c, the arrest record remains on file with the OSBI and could show up in criminal background checks. Although there will be no record of a conviction, there will be a criminal record related to the case.
A fuller expungement occurs under § 18. This section of law lists specific criteria for expungement of a criminal record, which extends to the arrest record on file with the OSBI. If a person is eligible for expungement under this statute, and if the record is ultimately sealed, that person has the legal right to deny that he or she was convicted of any crime. According to 22 O.S.§ 19 (D), "Upon the entry of an order to seal the records, or any part thereof, the subject official actions shall be deemed never to have occurred, and the person in interest and all criminal justice agencies may properly reply, upon any inquiry in the matter, that no such action ever occurred and that no such record exists with respect to such person."
Records May Still Be Available to Law Enforcement
Even if you hire an expert Oklahoma expungement lawyer, your criminal record may be available to law enforcement. According to § 18 (D), specified expunged records are sealed to the public but not to law enforcement agencies for law enforcement purposes. For those specified records, law enforcement does not need a court order to view the records. But law enforcement may still be able to view other sealed records with a court order:
"Subsequent to records being sealed as provided herein, the prosecuting agency, the arresting agency, the Oklahoma State Bureau of Investigation, or other interested person or agency may petition the court for an order unsealing said records. Upon filing of a petition the court shall set a date for hearing, which hearing may be closed at the discretion of the court, and shall provide thirty (30) days of notice to all interested parties. If, upon hearing, the court determines there has been a change of conditions or that there is a compelling reason to unseal the records, the court may order all or a portion of the records unsealed." 22 O.S.§ 19 (L)
If records are not unsealed within 10 years of being sealed, the records are to be destroyed.
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