Second chance opportunities don’t come often. Larry was having issues finding a stable job, even more so finding a career. Larry had a decent enough employment history, solid references, and a motivation that exceeded most professionals I knew. It wasn’t enough though. He applied to work in retail, warehouses, as a delivery driver, as a school custodian, and much more – but every place turned him down, all for the same reason. He was convicted of a non-violent felony fifteen years ago.

“Felon.” That’s what everyone said. That’s why he wasn’t getting a job. That’s why he felt branded for life. To employers, it didn’t matter that it was a decade and a half ago, and it didn’t matter that it was non-violent. Who really knows what horrible things could happen if a felon was working alongside other non-felons. Employers may believe that the non-felon employees might become swayed by the thug life and decide to become felons. Then chaos ensues, fireworks ignite, unions form, farm animals run amok, and then the proletariat rises up and steals all of the office supplies and builds a guillotine and... and… and really now, how scary is a convicted felon?

Being what some call a “felon” means a whole lot to a whole lot of people. To some employers, a ten-year-old Class D drug felony is viewed the same as a Class Y violent felony. Hiring a felon is a risk, so smart employers run background checks before hiring.

But Larry wasn’t going to steal office supplies from his employer; he had never stolen anything in his life. Larry didn’t do illegal drugs and had never been in a fight. In fact, Larry was so non-violent that he set spiders free. When he found a spider inside his car, he cradled the spider outside to release it, reasoning with himself that spiders have a life too. Spiders don’t deserve to be crushed just for being scary to some. The majority of spiders deserve a second chance. They deserve to be set free and placed back outside to frolic and do whatever spiders do. Like, start spinning patterned webs to capture flies and attempt to rid the world of mosquitos and start a spider family. Just because a spider was stuck inside for a few hours doesn’t mean it’s bad and should be crushed beneath your sole, or even only half-crushed so the spider lives but can’t spin webs. Spinning webs are the only way spiders can catch meals; otherwise, they’ll return inside to look for food. Sealing your criminal record is like Larry carrying the spider outside. The spider is mostly undamaged and ready to start spinning webs again, thus contributing to society by feasting on mosquitoes.

Larry’s felony was preventing him from more than just earning a living; he couldn’t find a place to live. Larry was sleeping in his car in the Wal-Mart parking lot for the 5th week in a row. It wasn’t so bad. He signed up at Planet Fitness, so he had a place to shower and change clothes before job interviews. He paid for a P.O. Box so that employers had a permanent address. He had his car; it was his home. He hoped if he could find a job, then maybe he could get an apartment too. He sometimes saw signs on apartments that said “No Felons” and considered giving up hope.

Sealing a Criminal Case

Click Images to down the Quick Reference for Criminal record Sealing

In some cases, a defendant can ask the court to seal his criminal records, so it no longer pops up on a background check. This procedure is called criminal record sealing, formerly called expungement. When a record is sealed, it no longer appears on background checks, with a few exceptions.

Exceptions

Only a select few can access a sealed criminal record: the Defendant and Defendant’s attorney, the prosecutor, a judge upon a subsequent conviction, ACIC, and some employers that deal with “at-risk” populations like nursing homes, the Arkansas Nursing Certification Board, many healthcare providers, criminal justice agencies, courts, and judicial employers, schools, pre-schools, the military and some other state licensing boards. As a result of sealing, a person may state that they were never convicted of the underlying offense; that no criminal record exists. T.I.P.: If you apply for a job that deals with at-risk populations, then disclose your sealed cases.

How to Seal.

The $50 filing fee was removed in July 2019, so it is free to seal in Arkansas.

All you have to do is

(1) make sure you are eligible,

(2) fill out a form with your case information,

(3) file it with the court clerk and send a copy to the prosecutor and police; and

(4) if there is an objection, then set the matter for a hearing and argue the appropriate standard.

Follow the instructions above, and you should succeed.

Eligibility

How do you know if you are eligible? Well, after you have successfully completed your sentence. Your sentence is complete after you pay all of the fines, fees, costs and restitution, and are discharged from probation. Multiple statutes allow sealing, but the main three are:

the Community Punishment Act (“C.P.A.” § 16-93-1202);

the First Offender Act (§ 16-93-301); and

the Comprehensive Criminal Record Sealing Act of 2013 (“CCRSA” § 16-90-1401 et seq).

The new Act 341 makes the CCRSA retroactive for felonies, so it will be used for nearly all felonies and misdemeanors once it is enacted.

Next, you must determine what you were convicted of exactly

Misdemeanors

Misdemeanors are all eligible to seal, and almost all can be sealed immediately, except these seven misdemeanors require a five-year wait: Negligent homicide as a class A misdemeanor, battery 3rd, and domestic battery 3rd, indecent exposure, public sexual indecency, sexual assault in the fourth degree, and Driving or Boating while Intoxicated.

Felonies

You can only seal the oldest two (2) felonies. Felonies that were part of the same criminal episode (same events leading to arrest) count as one felony for this rule. A sealed felony still counts as one felony for this rule, too.

Felonies Eligible to Seal: Can be sealed immediately upon completion of the sentence:

A non-violent Class C felony or non-violent class D felony;

Except: A violent Class C or Class D felony may be sealed five (5) years after completion of the sentence.

An unclassified felony;
An offense under § 5-64-401 that is a class A or class B felony (Drug felonies)
Solicitation, attempt, or conspiracy of any eligible felonies
A non-violent felony committed while under the age of eighteen (18) years old.

Felonies Ineligible to seal (§ 16-90-1408):

Most Class Y, A, and B felonies, unless allowed above.
Manslaughter
Unclassified felony with a max sentence over 10 years.
A felony sex offense
A felony involving violence under § 5-4-501(d)(2)

1st& 2nd-degree murder, kidnapping, aggravated robbery, rape, battery 1st, terrorist act, 1st & 2nd-degree sexual assault, 1st-degree domestic battering, residential burglary, and aggravated residential burglary, unlawful discharge of a firearm from a vehicle, criminal use of prohibited weapons if Class B, and aggravated assault upon a law enforcement officer if Class Y, AND/OR felony attempt, solicitation, or conspiracy to commit the above and capital murder.

Any time spent in Arkansas Division of Correction Act 341 will remove this restriction.
A felony traffic offense when the driver has a CDL unless it’s parking, vehicle weight, or vehicle defect violation.

No federal crimes can be sealed. Some states allow criminal record sealing, but other states do not. Drug court cases are usually sealed in-house by the drug court. Dismissals and acquittals (unless by mental defect) can be sealed immediately. Arrest only and nolle prosequi cases require a one-year wait from the date the order was filed or from the date of arrest. If your petition is denied, you must wait ninety (90) days to file again for a misdemeanor or wait one (1) year to refile a felony petition to seal.

Obtain Documents

First, you must obtain your ACIC report. Go to dps.arkansas.gov/crime-info-support/Arkansas-crime-information-center/ or search for “Arkansas Crime Information Center.” Click on “Forms” and click the link for “Authorization for Review of Criminal History.” Fill out this form and have your signature notarized. Then mail or fax this form to the address or fax number listed at the top of the form. In about a week, you will receive your free ACIC background report. This background report should contain your Arrest Tracking Number, S.I.D. number, and an F.B.I. number (if you have one). Obtain your sentencing order (aka judgment & disposition or docket sheet) from the court where you were convicted, or check for your documents on Court Connect at caseinfo.arcourts.gov

Forms. Now that you have all of the necessary information, you go back to the ACIC website and decide which forms you need to fill out. This was much more complicated until Arkansas House Bill 1256, now Act 341, passed the House and Senate on March 11, 2021 (not yet enacted, but soon). This will allow all felonies to use the “Petition and Order to Seal Felony” forms regardless of date.

If your conviction was a misdemeanor, use the “Petition and Order to Seal Misdemeanors.” Only use one petition and order form per case number.

First Offender. Your felony can be sealed and dismissed if you were specifically sentenced under the First Offender Act 346 (A.C.A. § 16-93-301). Check your sentencing order for a checked box next to either: “First Offender Act” or “Act 346” or “16-93-301”. Just because it is your first offense does NOT mean you can use the First Offender Act; you must be specifically sentenced under it. A guilty felony that is sealed still prohibits firearm possession but, if you can use the First Offender Act, then you’ll actually have a sealed dismissed felony, which should not restrict firearm possession.

File Petition. Once the petition to seal and proposed order to seal are filed with the court clerk, then a copy of the file-marked petition and a proposed order will need to be served within three (3) days [upon the prosecuting authority and upon the arresting agency if the arresting agency is a named party]. It is not necessary to make the arresting agency a party to the action. If no one files opposition to sealing the record within 30 days, the court may grant the petition. However, if notice of opposition is filed, the court will set the matter for a hearing.

Objection

An objection may be filed if:

(1) you have not paid all of your fines, fees, and/or restitution;

(2) you have pending criminal charges;

(3) you violated your probation, or it was revoked;

(4) your conviction is not eligible to be sealed.

Hearing & Legal Standard

If there is an objection, then set it for hearing and argue the standard: clear and convincing evidence that granting the petition would further the interest of justice. The judge should consider the following factors:

Whether the person appears likely to re-offend.
The person’s other criminal history.
The existence of any pending charges or criminal investigations involving the person.
Input from the victim of the offense for which the person was convicted.
Any other information provided by the state would cause a reasonable person to consider the person a further threat to society.

If the court determines that the record should be sealed, the uniform order will be entered and filed with the court clerk, who will remove all petitions, orders, and documents relating to the case and hide them in a separate and confidential holding area or ensure that any electronic records are sealed and no longer available for general access unless otherwise authorized by law.

Revocation

If you had a revocation, you are likely ineligible to seal under the First Offender Act or the Community Punishment Act. However, under the CCRSA, which can be used for most felonies and misdemeanors, the standard is different, and a revocation does not make someone automatically ineligible.

Under the stricter First Offender Act 346 (§ 16-93-303), “Upon fulfillment of the terms and conditions of probation… the defendant shall be discharged without court adjudication of guilt, after that the court shall enter an appropriate order that shall effectively dismiss the case, discharge the defendant, and seal the record…” This has been interpreted in Robinette v. State, 2021 Ark. App. 48 and in Kimbrell v. State, 2016 Ark. App. 17, to mean that if you even only mess up once while on probation, even without a guilty revocation, then the court may deny your petition. Interestingly, in Robinette, the circuit court chose to seal the offense but not dismiss it due to a probation violation for Robinette.

The Community Punishment Act § 16-93-1201 et seq. requires “successful completion of probation” for the court to have authority to seal the record. In State v. Brown, 2019 Ark. 395, Brown failed to successfully complete probation under the revoked order, and the new amended sentencing order explicitly stated Brown was not eligible for expungement. The takeaway is that under the C.P.A., if the revocation petition is found guilty AND the post revocation order explicitly states it is not eligible to seal, then the courts do not have the authority to seal.

The CCRSA, § 16-90-1401 et seq. (which will be retroactive for all felonies when Act 341 is enacted) only requires “completion of the person’s sentence,” which it defines in § 16-90-1404 as Discharged from probation or parole, completed a suspended sentence, paid restitution, completed community service, paid driver’s license reinstatement fees and completed driver’s license reinstatement requirements, and completed any required vocational or technical education.

Effects of Sealing

According to 16-90-1417, after a record is sealed, a person shall have all privileges and rights restored, and the record that has been sealed shall not affect any of his or her civil rights or liberties. After sealing, the person’s underlying conduct shall be deemed as a matter of law to have never occurred. The person may state that the underlying behavior did not happen and that the person’s criminal record does not exist.

Voting. Sealing has no effect on voting. To reacquire voting rights, a person should follow the procedures in the Arkansas Constitution, Amendment 51 § 11, which states that you must pay all fines, fees, costs and restitution, and be discharged from probation or parole, then fill out a form with the circuit clerk.

The sealed conviction may still be used for certain purposes like:

A criminal proceeding- for cross-examination impeachment, determining offender and habitual offender status, and following Rules 17, 18, and 19 of the rules of Criminal Procedure.
Healthcare professional licensure by a state agency or board. Ex. Nursing Certification Board.
Employment of a law enforcement officer
Firearm possession – Sealing does not restore firearm rights.

For the above areas, you should disclose your sealed record.

Criminal Database Update

Make sure you update private background check companies with your sealed record; otherwise, employers will think you are a felon and a liar. There are hundreds and even thousands of private background check companies. Most are unlicensed, mom-and-pop style small businesses. These companies do not update their records when your Order to Seal is entered because they don’t know about your Order to Seal because… it’s sealed.

The Foundation for Continuing Justice is a non-profit that sends your Order to Seal to over 500 different private background check companies to update their records for FREE. Complete a one-page form and mail, fax, or email the form with your Order to Seal to the Foundation. Your record should be cleared up with the private background check companies in about 60 to 120 days. Taking this proactive step will save you time.

People that do not do this step often have issues. Here’s how it usually goes. A person applies for a job and writes on the application that they have no convictions. After sealing, you are legally allowed to say the record does not exist, and you were never convicted of the crime. The employer runs a background check, and whoops… the felony appears, and the employer is not happy and thinks you’re dishonest. You can still update your record by sending your Order to Seal to the background check company. They will update their records and send a new background to the employer. But by then, it is too late; the employer already thinks you’re dishonest because you didn’t disclose the sealed felony. To save yourself from this happening 500 times, just do the Criminal Database Update form and send it to the Foundation for Continuing Justice.

Conclusion

So what happened to Larry? Well, that’s not his real name, but I helped him seal his felony. He called me 6 or 7 months later and told me that he got a job as a taxi driver making good money. He’s not homeless anymore. He lives in an apartment and is saving towards a down payment on a house. He said that without sealing his record, he’d still be homeless, seriously.

If you need to seal your criminal record, contact an attorney or call our Helpline at 501-376-3423 (toll-free 800-950-5817), Monday-Friday from 9-11 am and 1-4 pm for more information.

Sealing your Criminal Record- From Start to Finish