Thursday, February 14, 2013

What is the Difference Between Dismissal and Expungement in Kentucky?

Today’s blog post is not going to be extremely interesting or chock full of jokes.  Sorry.  It will, however, be informative.  And useful for people who need an expungement in Kentucky.

You can expunge some convictions and most dismissals in Kentucky.  A conviction means that a defendant either pled guilty to an offense, or the defendant was found guilty of the offense by a judge or jury.  There are different rules for expunging convictions and dismissals, and we’ll get to that later.

First, let’s define the terms Dismissal and Expungement. 

“Dismissal” or to have a case “dismissed” means that the criminal case against a defendant  is resolved in their favor, with no conviction.  The case against them is dismissed (usually with a stipulation of probable cause for the arrest if we are talking about an arrestable offense), and the defendant faces no more court dates.  There is no more possibility of punishment or conviction.  They walk away – free to go.

That does NOT mean that the charge “goes away.”  The term “dismissed” is not synonymous with “erased.”  If someone (an employer, police officer, etc.) looks up the defendant’s criminal record, they will still find the charge.  The record will show that the defendant was charged with a crime, but that the charge was dismissed.

If the defendant wants the record to be “clean,” “erased,” or to “go away” then the remedy is “Expungement.”  If the defendant qualifies for an expungement (and to be accurate, if he qualifies, he isn’t technically a “defendant” anymore), there is another step in the legal process that needs to be performed.  THIS IS IMPORTANT.  If the defendant had a lawyer, the lawyer got the case dismissed, and the defendant expects the lawyer to get the case expunged without this desire expressed to the lawyer, it will NOT be expunged.  It is a new step.  A new case.  That means a new legal fee, new paperwork, and most likely, a new court date or two.

If the defendant qualifies for an expungement in Kentucky – the process is quick and easy (in the grand scheme of legal process).  Expungements are typically cheap and usually cost less than $500.00 to get done (per charge).  In addition, they can be done quickly; it only takes about a month to get an expungement done in most cases.   

Let’s go over some brief rules (these are general rules and this is not an exhaustive list) on who/what qualifies for expungement in Kentucky.  First – Felonies cannot be expunged.  Exceptions are that Felony dismissals (including those resulting from diversion programs) may qualify subject to the other rules; first time drug possession cases may qualify; and if the felony has been pardoned, it may qualify.  But generally, if you are a convicted felon – I’m sorry.  The general rule is: “Once a convicted felon, always a convicted felon.”

There is a waiting period for expungement.  During that waiting period, the defendant must have NO new offenses.*  The general rule on the waiting period is that defendants with dismissals have to wait 60 days before an expungement can be filed, but defendants with misdemeanor convictions have to wait 5 years.  Again, during this waiting period, the defendant must have NO new offenses.

The time frames can be modified by agreement.  For example, in Jefferson County, we have a DUI diversion program.  If a defendant is lucky enough to qualify for the DUI diversion program, the DUI charge will be dismissed after completion of that program.  However, defendants have to agree (as a part of the program requirements) that the charge cannot be expunged until 2 years after the dismissal.

If you have a conviction on your record, and you would like to get it expunged, call expungement lawyer Greg Simms at 502.473.6464.  The process is easy, and it doesn’t cost an arm and a leg.  But don’t put it off.  It’s important because it’s YOUR record.  Call today.

Expungement Attorney Greg Simms
455 South 4th Street, Suite 1250, Louisville KY 40202

  1. *There is a great debate now on what constitutes a "new offense" under the law for expungement purposes.  I will keep you posted on how this turns out. 
Questions answered in this blog post: How can I get an expungement in Kentucky; good expungement lawyers in Louisville; how to do a Louisville expungement; expungment attorney Louisville; expungment lawyer Elizabethtown; what is the difference between a dismissal and an expungement; expungement lawyers in Kentucky; how to get my record erased?

1 comment:

  1. I am a convicted felon it was the first time I had ever gotten into trouble it was over 7 years ago I hope I can still get an expungement I'm homeless and I can't get any assistance I have not been any trouble since I have learned my lesson the hard way