By Maya Kushner, Esq. and Marc Emden, Esq.
There are several ways to remove data from your court records in Maryland: they are shielding, sealing, and expungement. The laws related to these methods are quite complicated, and there are additional laws and amendments that went into effect October 1, 2015. Add to that the fact that what happens in practice is not exactly what’s written in the law, and the process of cleaning up your record can become quite daunting.
In general, a criminal conviction cannot be removed from your record! There are very few exceptions to this rule, and the convictions that are eligible are specifically listed in the statutes. Thus, shielding, sealing, and expungement are ways to clean up your record when something other than a criminal conviction occurred.
An expungement is only available in criminal cases. A criminal record is generally eligible for expungement if it did not result in a conviction. This includes cases such as:
- an arrest that does not result in filing of charges,
- a person is acquitted (found not guilty),
- a nolle prosequi is entered,
- a charge is postponed with a “stet,” or
- a charge is otherwise dismissed.
A recent change in the law allows for expungement of convictions that were based on acts which are no longer a crime. For example, Maryland recently decriminalized possession of less than 10 grams of marijuana. Now anyone previously convicted of this crime is eligible for an expungement.
A few convictions for minor crimes are eligible for expungement, such as convictions for loitering or riding public transportation without paying the fare. (See Criminal Procedure Article § 10-105)
Shielding is most often, but not exclusively, used for Peace Orders and Protective Orders, which are civil cases.
A new law that went into effect October 1, 2015 now allows shielding convictions for 12 specific crimes, including driving without a license, and disturbing the peace. There are several nuances in determining whether your conviction is eligible for shielding. For example, under the old law, a conviction originally eligible for shielding would become ineligible if the person is subsequently convicted of another crime. According to the new law, however, the first conviction remains eligible as long as the second conviction is also eligible for shielding.
Sealing is the catch-all category which enables you, as a party to a criminal or civil case, to make all or part of your court record inaccessible to the public. If, for example, you filed for divorce, you can request to seal that court record because it contains your personal financial information.
What is the Process to Expunge, Seal, or Shield My Record?
A request to expunge or shield is fairly straightforward. You simply file the proper form, and the decision is made by a clerk of the court based on that form. Expungement and shielding requests are granted more often than not.
A motion to seal has its own form. After filing it, you will be asked to come to a hearing before a judge to explain why your motion should be granted; the judge then makes the decision. Sealing requests are very seldom granted.
What Effect Does Expungement, Sealing, or Shielding Have on My Record?
When a record is shielded or sealed, it becomes inaccessible to members of the public both physically and electronically. This means that the record is removed from the Maryland Judiciary Case Search (an online public database), and the physical file is moved to a secure area in the courthouse or another location where only authorized individuals can access it.
An expungement offers more protection than shielding or sealing. According to the statutory definition, expunged records may be treated the same as the ones that are shielded, but in practice expunged records are destroyed: the electronic record is removed from the Maryland Judiciary Case Search and the physical file is shredded.
What Information is Protected?
If your record is shielded or sealed, the protection applies to all court records and all police records relating to that specific case.
If your record is expunged, then all court records, police records, and any “trail” of documents are destroyed — thus if another court case references the expunged record, then a part or all of that other court case is also destroyed. Further, if you are seeking an expungement of an arrest that did not result in filing of charges, the protection will apply to all police records related to the arrest, including photographs and fingerprints. However, you cannot expunge police records of an encounter that did not result in an arrest.
Who Can See My Record When It is Shielded, Sealed, or Expunged?
A record that has been shielded or sealed is removed from public inspection, but remains fully accessible to law enforcement officers, prospective and current employers who are required or authorized by law to conduct criminal background checks of applicants and employees, and certain other individuals authorized by law, like agents involved in national security.
An expunged record, in theory, is inaccessible to anyone, but in practice that is not always true. Although an expunged record is deleted from the Maryland Judiciary Case Search and the physical file is shredded by the Central Repository, the record remains in other Federal and private repositories of information. Governmental organizations such as the NSA and the FBI keep their own databases of records that are not affected by Maryland laws on expungement. Similarly, private third-party databases which collect criminal and civil record information from the Maryland Judiciary Case Search are not covered by expungement laws, and may still retain your record even after it has been removed from the Case Search.
If I Am Applying for a Job or For School, Should I Reveal My Record on the Application?
Remember that if your record was shielded/sealed, then it may still appear in your background check if the employer or educational institution to which you are applying is required or authorized by law to examine shielded and sealed records. A prospective employer or school may also choose to use a third-party background check service, which may lawfully retain any criminal and civil records regardless of any shielding or sealing.
An employer or school may not require disclosure of expunged records. However, just like with records that have been shielded/sealed, expunged records remain in private third-party databases, as well as Federal ones, so even an expunged record is likely to come up on a background check.
Even though laws attempt to protect certain records from disclosure, no record is ever destroyed completely. For all of these complicated reasons, we recommend that you reveal a prior arrest or conviction to a prospective employer or school, if you are asked. Your chances of landing a job improve greatly by revealing your past indiscretions, rather than by engaging in deceptive behavior. You can always add that your record has been expunged or sealed or shielded, depending upon which of the three you have achieved. In the end, honesty is the best policy.