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Clearing a criminal record can be a daunting task. Expungement requires you to understand both criminal and administrative law. You have to navigate a maze of statutory and local procedure. You need a firm grasp of what the charges were, which agencies created records, and who still has the records. With this article (adapted from a book that I am writing) I will educate the public and other lawyers on the ins and outs of Kentucky’s expungement law. When you are ready to get started on your expungement, get a free case evaluation at www.unconvicted.com.

 Quick Links/Table of Contents

• Introduction – Find Out What Expungement Is and Why You Need One
• General Principles of Expungement In Kentucky – Learn the Background on Criminal Law You Need to Know to Clear Your Record
• Dismissed Case Expungement – Learn About How To Clear Dismissed Cases From Your Record
• Misdemeanor Expungement – Learn About The Steps of Misdemeanor Expungement
• Felony Expungement – Beginning to End, How A Felony Expungement Works in Kentucky
• Void and Seal – You May Be Able to Expunge Your Felony or Misdemeanor Early
• Other Options – Information About Pardons and Clemency in Kentucky
• FAQ – Frequently Asked Questions About Expungement
• Forms and Case Law – All of the Relevant Kentucky Forms and Case Law

What is Expungement?

Expungement is the process of removing a criminal record from public records. In Kentucky, the effect of an expungement depends upon the type of case that you expunge. In general there are five major types of expungement in Kentucky. Each of these expungements has a statute that governs its applicability.

• Felony Expungement – KRS 431.073
• Misdemeanor Expungement – KRS 431.078
• Dismissed Case Expungement – KRS 431.076
• Voiding of a First Time Possession Offense – KRS 218A.275(8)
• Voiding of a Conviction for Possession of Marijuana, Synthetic Drugs, or Salvia – KRS 218A.276(8)

Why Would Someone Want an Expungement?

All five types of expungements mentioned above are valuable. They all will remove the convictions from official state performed background checks. They all allow for you to deny that you have been convicted of a crime on job applications. They can be used as defenses to later offenses.

Studies show that 92% of employers now perform background checks. In today’s employer friendly job market, many employers will throw out all the candidates with convictions. Even a minor conviction like a speeding ticket can make you less attractive than someone with a clean record.

Landlords and mortgage officers now run background checks. Even if you’ve got a good job and good credit, an old conviction can keep you from the house of your dreams, or lead to a higher interest rate.

An expungement can restore the rights you lose. A felony conviction takes away your right to vote, hold public office, serve on a jury, and have a firearm. A felony expungement restores those rights.

A minor domestic violence offense creates a lifetime ban for owning a gun. A misdemeanor expungement restores those rights.

Some misdemeanor drug offenses can prevent you from receiving student loans. Voiding and sealing those offenses under KRS 218A.276 could get you back in school.

Many professional boards will not grant you a license if you have a conviction. It’s not just professions like attorney, accountant, and doctor. Kentucky has statutes that make it difficult for people with a record to get licensed for anything. There are laws prohibiting pesticide dealers, motorcycle safety instructors, even professional wrestlers from getting licensed.

Expungement can give you a second chance on life. Anyone with an old conviction can benefit from expungement. Some of our clients simply want the peace of mind of knowing their record is clear.

No matter your reason for wanting to clear your record, we’re here to help. Get a free case evaluation at www.unconvicted.com.

Won’t Convictions Automatically Come off My Record?

Most people don’t realize it, but even dismissed cases stay in court records permanently. Even if you were arrested and never charged that record will stay in the database of the state police and FBI.

But I Was Acquitted, or My Case Was Dismissed?

Dismissed cases, diverted cases, and arrest records can show up in background checks and ruin your chance at getting a job or promotion. If you’ve had contact with the court system you should get those records expunged. If you’ve had contact with law enforcement, you should get those records expunged. In today’s tough job market even speeding tickets can hurt your chances at a job.

What Are the Steps of Expungement?

At Unconvicted.com, we have a nine-step process for the expungements we handle:

1. 1. We review the criminal record in an online database to see for what, when, and where the client was convicted.
   2. We identify the appropriate expungement statute to proceed under.
   3. We request a Certificate of Eligibility from the Kentucky State Police (KRS 431.079).
   4. If the Certificate of Eligibility is correct, we prepare the appropriate paperwork for the expungement. If there is a problem with the Certificate, we work with the Kentucky State Police to fix it.
   5. From the Certificate and our own research, we identify all the places that have information about the conviction. This includes local, state, and federal law enforcement; local jails; state facilities; administrative agencies, FCRA compliant consumer reporting agencies, non-FCRA compliant background checks, mugshot websites and other online sources.
   6. We draft the state required paperwork and prepare orders for the judge to sign. We request that the judge expunge all eligible charges, and order all agencies under the courts jurisdiction to expunge the record.
   7. We file the paperwork, with required fees, at the appropriate courthouse.
      We negotiate the expungement with the prosecutor. This insures that the process goes smoothly.
   8. If the court orders a hearing, or the prosecutor objects, we appear on the client’s behalf. We present a compelling argument to the court why you deserve your expungement.
   9. This process has been quite effective. Since May of 2016, we have expunged over one-thousand charges with almost a 99% success rate. We have clients back in school, with new jobs, and some have returned to hunting for the first time in decades.

What Are the Keys to a Successful Expungement?

The keys to a successful expungement are simple, but important.

1. 1. 1. You have to identify cases that the Kentucky State Police and the Court will agree are eligible to expunge. Failure to do so will lead to a denied expungement.
      2. You have to request a Certificate of Eligibility from the Kentucky State Police. In most cases, they have to certify you as eligible or your expungement will be denied.
      3. You have to file the expungement petitions in the appropriate court, at the appropriate time. Failure to do so will lead to a denied expungement.
      4. You must identify all the relevant agencies that have record of your arrest and conviction. Failure to do so could make records of your conviction and arrest still discoverable, or fail to restore your rights completely.
      5. You or your lawyer must appear at the hearing the court orders. Sometimes the only way to know about a hearing date is to check the online calendar or call the clerk’s office. Missing this hearing could lead to a denied expungement.
      6. In many jurisdictions, the court expects you to have drafted a proposed order. If you do not, some courts will not draft them for you, and while your expungement will be “granted” the agencies that are required to expunge it will never get notice of the expungement and the charges will stay on your record.

Will an Expungement Remove My Record From Everywhere?

An expungement is a court order. A court can only order those it has jurisdiction over to do something. In the state of Kentucky, our laws give the District and Circuit courts jurisdiction to order records removed from state agencies. Getting your record removed from other sources will have to take take place outside of court.

At Unconvicted.com, we have a process for removing your records from other databases after your expungement is complete. Sometimes we can get records that aren’t eligible for expungement removed online. Every case and every record is different. Give us a call and we will tell you what we can do.

What About Private Background Checks?

Statistics show that 92% of employers perform background checks. While many employers use state performed background checks that do not show expunged charges, some use private companies. Private background checks are governed by the Federal Trade Commission’s Fair Credit Reporting Act (FCRA), 15 U. S. C. § 1661, as well as KRS Chapter 367.00 §310.

KRS 367.00 §310 states:

“No consumer reporting agency shall maintain any information in its files relating to any charge in a criminal case, in any court of this Commonwealth, unless the charge has resulted in a conviction.”

An expunged or voided charge is not considered a conviction under Kentucky law. It should not appear on any legal background check for employment purposes. If it does show up, the Federal Fair Credit Reporting Act allows you to dispute the record. Because of the legal structure of Kentucky’s online records, employers still have to manually perform background checks in Kentucky. As a result, most records no longer appear on pre-employment screenings within days of the expungement being granted.

This area of the law is complex. We always tell our clients to give us a call if they have any problems with background checks after we handle their expungement. Very few have ever called to tell us they had a problem.

What If My Mugshot Keeps Showing Up on Google?

A corporate executive from Europe was having trouble with a mugshot showing up when you Googled her name. One night on a trip to Louisville, she had a little too much fun. A trip to the detention center led to her mugshot being posted online. Even though her charge was thrown out years ago, her mugshot still showed up as the top result when you search for her name. We were able to use KRS 61.8746 to get her mugshot removed from Google as well as the offending website. She now rests easy knowing that people find her LinkedIn page rather than a dumb mistake when they Google her.

If you have a mugshot, or other record you would like removed, give us a call today. We’ve helped people worldwide remove their Kentucky Criminal Record from the Internet.

General Principles of Expungement in Kentucky

So far, we’ve talked about the general principles of expungement and our services. Now we can talk about specifics. It makes sense to first talk a little bit about the different types of criminal cases and case numbers.

Kentucky Criminal Case Classifications

In Kentucky, there are three main types of cases handled in criminal court: felonies, misdemeanors, and violations. According to KRS 500.080 felonies and misdemeanors are crimes. Violations are not considered crimes.

“Felony” is defined by KRS 500.080 as:

“an offense for which a sentence to a term of imprisonment of at least one (1) year in the custody of the Department of Corrections may be imposed;”

Common examples of felonies include:

1. • Murder
   • Burglary
   • Theft over $500
   • Possession of Cocaine

“Misdemeanor” is defined by KRS 500.080 as:

“an offense, other than a traffic infraction, for which a sentence to a term of imprisonment of not more than twelve (12) months can be imposed;”

Common examples of misdemeanors include:

• • Theft under $500
  • Possession of Marijuana
  • DUI

“Violation” means an offense, other than a traffic infraction, for which a sentence to a fine only can be imposed.

Common examples of violations are:

• Speeding
• Failure to Wear a Seatbelt
• Alcohol Intoxication (First or Second Offense)

It is worth noting that KRS 500.080 creates an additional classification of offense for “traffic infractions”. While there is no statutory definition for a traffic infraction, the case of HEALTHWISE OF KENTUCKY, LTD. V. ANGLIN, 956 S.W. 2d 213 (Ky. 1997) has held that offenses under KRS 189 and KRS 189A that are not otherwise designated are traffic infractions (including DUI). This will be an area of future litigation of expungements. If you have a conviction for a traffic offense in the last five years that is preventing you from getting an expungement, we would be happy to represent you in litigating this complex issue.

What Does It Mean For a Case To Be Dismissed?

Under Kentucky law, there are two types of dismissals: a dismissal with prejudice, and a dismissal without prejudice. A dismissal with prejudice means that the case can never be reprosecuted. It is final. A dismissal without prejudice means that a case can be redocketed or reprosecuted, so long as the prosecution complies with the statute of limitations.

Kentucky Criminal Case Numbers

A lot of confusion in the area expungement comes from the way criminal cases are numbered in Kentucky. All cases after 1976 follow the format YY-X-ZZZZZ. YY represents the last two years of the year the case was charged. X represents the type of case charged. ZZZZZ represents the number the case was in that county, that year.

For example “Fayette 11-T-00123” would be a case from 2011, that was a traffic violation, and was the one hundred twenty third case charged that year.

In general, we deal with four types of case numbers on criminal records.
“T” Cases: these cases contain traffic infractions only, including DUI.
“M” Cases: these cases contain misdemeanor offenses and could also include traffic infractions. Example: 09-M-00123.
“F” Cases”: these are cases that include at least one felony charge (but could include the other types as well). A felony case has an “F” case number until it is indicted. Many “F’ cases are amended to misdemeanors rather than sent to the grand jury. Example 08-F-00123.
“CR” Cases: these numbers are generated only after the defendant is indicted by the grand jury for a felony offense. CR cases contain at least one felony charge, though the offense could still be amended to a misdemeanor. Example: 10-CR-00123

In general, if a case is never indicted (all “T” cases, “M” cases, and some “F” cases) the relevant records to focus on expunging are arrest records and district court records. If the case was indicted, you will have to see that records in BOTH district and circuit court are expunged, as well as arrest records and collateral documents.

 ”T” Cases Eligible for Expungement

Almost any “T” case will be expungeable. The only question is when does it become expungeable. KRS 431.078 governs expungement of misdemeanors, violations, and traffic infraction convictions. KRS 431.076 governs expungement of dismissed “T” Cases. They are discussed in detail below. DUI cases, and other enhanceable offenses are subject to special rules mentioned below.

“M” Cases Eligible for Expungement

Most “M” cases are expungeable. Cases that resulted in a conviction are generally expungeable five years after the completion of the sentence. But there are three major exceptions:

• Misdemeanor Sex Offenses
• Offenses Committed Against a Child
• Offenses Subject to Enhancement for a Second or Subsequent Offense

“M” cases dismissed with prejudice are expungeable sixty days after the dismissal. “M” cases dismissed without prejudice can become dismissed with prejudice by operation of law. See below for more.

“F” Cases Eligible for Expungement

Most offenses resolved as “F” cases are expungeable. Time calculation is discussed below. “F” cases resolved in district court must be amended to a misdemeanor before they may be resolved.

If indicted, see the discussion of “CR” cases.
For cases that the grand jury declined to take action on, see the discussion of grand jury dismissals below.

“CR” Cases Eligible for Expungement

About sixty-one felonies are eligible for expungement in Kentucky. The actual number is larger. Eligible offenses are defined by statute number in KRS 431.073, not offense name. Because some offenses have changed statute number, and some offenses predate the penal code, there is no definitive list of eligible felonies.

If all of the felonies in a “CR” case were amended to misdemeanors, they are subject to the rule for misdemeanors. If they were amended to misdemeanors or violations and dismissed, they are subject to those rules. If a felony is dismissed with prejudice, it is eligible for expungement after sixty days (KRS 431.076). If it is dismissed without prejudice, it is not currently eligible for expungement, but there may be other remedies.

What is a Certificate of Eligibility for Expungement?

A Certificate of Eligibility for Expungement is a background check performed by the Administrative Office of the Courts and AOC. It will identify whether KSP believes you are eligible for an expungement. It is not binding on the court, but you cannot file an expungement under KRS 431.073, 431.076, or 431.078 without one. It costs $40 and is available online or by mail. You must file an expungement within thirty days of receiving the Certificate of Eligibility or the certificate expires. Void and seal procedures under KRS 218A.275 and 218A.276 do not require a certificate.

KSP Said I’m Not Eligible For Expungement. Can You Help?

We have helped dozens of clients who were not certified as eligible for expungement. We have a good working relationship with the Records Unit. While we disagree about some points of the law, they are hardworking people that want to get expungements right.

Give us a call if you think you were incorrectly rejected.

The Certificate From KSP Says That My Case Disposition is “Unknown”?

When KSP complies a Certificate of Eligibility under KRS 431.079, they look at two records. First, they look at records from the Administrative Office of the Courts. Then they compare those records to the arrest records on the books at KSP. If a record exists for you being arrested, but the Courts do not have a record of how the case was resolved, your Certificate of Eligibility will say “Disposition: Unknown”. This can happen for two reasons:

1. You were arrested by law enforcement, but never charged in court.
2. The record of your conviction was purged.

Law Enforcement Arrest Records

Every time you are arrested and fingerprinted, the local police will make a record of it. The jail will take your mugshot. Local law enforcement sends this to the state police. This creates an arrest record in the state police database. The state police provide this information to federal law enforcement.

If the charges are dropped before you go to court, there will be an arrest record with no disposition. Although this is not actually a dismissal with prejudice, most courts will still expunge these records under KRS 431.076.

Purged Records

In the 1990’s, a few court clerks decided to purge misdemeanor records due to storage space. These purged records never made it into AOC’s database. The arrest records however were digitized. As a result, when KSP creates a Certificate of Eligibility there will be an arrest record without a disposition. The correct procedure will depend on what actually happened in the case. If the case was dismissed, file as a dismissed charge. If it was a misdemeanor, file as a misdemeanor.

Some prosecutors will object to the expungement of an offense where the disposition is unknown. We can subpoena records from other agencies to prove that the offenses are eligible for expungement.

Expunging Dismissed Cases: KRS 431.076

What Types of Records Are Eligible For Expungement Under KRS 431.076?

It may not seem right, but even cases that don’t result in a conviction stay on your record. KRS 431.076 creates a right to expunge cases that led to a not guilty verdict, dismissal with prejudice, or the grand jury did not indict.

When Can I Expunge My Not Guilty Verdict?

After a defendant is found not guilty at trial, the court will enter an order finding the defendant not guilty. Sixty days after that order is entered, the defendant can petition to have the offense expunged. This applies to all charges:including violations, misdemeanors, and felonies.

One of the first expungements I handled was for a client of mine who was acquitted of Murder at trial. After winning his trial, we were able to get his case expunged and he is now able to live his life without having the Murder charge follow him around.

When Can I Expunge A Dismissed Case?

A case that is dismissed with prejudice can be dismissed sixty days after the order dismissing the case is filed. A felony case that is dismissed without prejudice cannot be expunged without the consent of the Commonwealth Attorney.

Most prosecutors agree that a misdemeanor case dismissed without prejudice can be expunged once the statute of limitations runs. KRS 500.050 explains that misdemeanors have a statute of limitations of one year, unless the victim is under 18 at the time of the offense. In those cases, the statute of limitations after the victim turns eighteen.

What About Cases That The Grand Jury Fails to Indict?

Sometimes a felony case goes to preliminary hearing and is never indicted. Sometimes the grand jury hears a case and chooses not to indict. In these cases, the “F” case record will continue to show on some background checks. In fact, some employers will interpret these cases as a pending felony charge.

In these cases the defendant can petition to expunge the offense twelve months after the case is held to the grand jury by the District Court.

What Standard Does the Court Use to Review a Petition for Expunging a Dismissed Case Under KRS 431.076?

KRS 431.076 is discretionary. In particular KRS 431.076(4) states that the court may expunge the petition if the following conditions are met:

• • At least sixty days prior to filing the petition the Defendant was acquitted of the charges; or
  • At least sixty days prior to filing this petition, the charges were dismissed with prejudice and the dismissal was not in exchange for a guilty plea to another offense; or
  • The felony charges originally filed in district court have not resulted in an indictment by the grand jury and twelve (12) months have elapsed since the date of the District Court decision to hold the matter to the grand jury.

AND

• • There are no current charges or proceedings pending in the case.

If these conditions are met, the court may, in its discretion, order the case expunged.

How Much Does It Cost To File For An Expungement In a Dismissed Case Under KRS 431.076?

There is no filing fee under KRS 431.076, but KRS 431.079 requires paying $40 for a Certificate of Eligibility in all expungements, including dismissed cases. Our rates for dismissed cases depend upon the complexity of the case and location. Most dismissed cases are expunged for less than $400 total. Give us a call or use the app for a complete quote and eligibility determination–absolutely free.

What AOC Form Is Used To Expunge A Dismissed Case Under KRS 431.076?

Most courts prefer the use of AOC Form AOC-497.2

Will I Be Required to Attend a Hearing For an Expungement of a Dismissed Case?

The judge has the discretion to order a hearing under KRS 431.076. Many judges routinely hold court hearings on expungements even when the prosecutor does not object. These hearings can be handled by an attorney and rarely require the presence of the defendant.

What Are The Effects of Expunging A Dismissed Case?

According to KRS 431.076(6):

After the expungement, the proceedings in the matter shall be deemed never to have occurred. The court and other agencies shall delete or remove the records from their computer systems so that any official state-performed background check will indicate that the records do not exist. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application.

Misdemeanor And Minor Crime Expungement: KRS 431.078

What Types of Records Are Eligible For Expungement Under KRS 431.078?

KRS 431.078 covers expungement for misdemeanors, violations, and traffic infractions. There are two separate provisions under KRS 431.078 that allow for expungement.

1. KRS 431.078(1)(a) allows for the expungement of a misdemeanor, a violation, or a traffic infraction, or a series of misdemeanors arising from a single incident.
2. KRS 431.078(1)(b) allows for the expungement of a series of misdemeanors, violations, or traffic infractions NOT arising from a single incident.

No appellate court has interpreted the meaning of “series” or “single incident” at this point in time. This is less important in the context of misdemeanor offenses.

What is The Difference In An Expungement Proceeding Under KRS 431.078(1)(a) and KRS 431.078(1)(b)?

The major difference is that an expungement under KRS 431.078(1)(a) is mandatory where an expungement under KRS 431.078(1)(b) is discretionary.

What Are The Legal Requirements for a Misdemeanor Expungement Under KRS 431.078?

1. You must have been convicted of the misdemeanor, violations or traffic infractions you wish to expunge.
2. None of the offenses can be a sex offense or an offense committed against a child.
3. You cannot have been convicted of a felony or misdemeanor in the five years prior to filing the petition.
4. The offense is not subject to enhancement for a second or subsequent offense, or the time for enhancement has expired.
5. No proceeding concerning a felony or misdemeanor is pending against you.
6. At least five years have passed since you completed your sentence.

So How Long Do I Have To Wait After I’m Convicted to Expunge a Misdemeanor?

There are three time limits to consider when expunging a non-felony conviction:

1. It must be five years since **completing your sentence** for the offense you are seeking to expunge; and
2. You cannot have had any convictions for misdemeanors or felonies in the last five years; and
3. The offense cannot currently be enhanceable.

If you received any type of probation, the expungement date will be five years from the date you completed probation. If you were ordered to pay a fine, you must wait five years from the date you paid the fine.

So What Kinds Of Offenses Can’t I Have In The Last Five Years?

You cannot have been convicted of any misdemeanors or felonies, or have a pending misdemeanor or felony offense. Determining the level of offenses, particularly traffic offenses is complex. For example, KRS 186.510, “License To Be In Possession” is technically a class B misdemeanor under KRS 186.990. Other offenses, like DUI First Offense are arguably not misdemeanors under the holding of the Anglin case. These determinations can be particularly difficult, and there are still open questions. At Unconvicted.com we have resolved many disputes about the eligibility of charges for expungement by working with the Kentucky State Police during the Certification Process. If you have any offenses on your record in the last five years, and you would like an expungement, it is best to have an attorney screen your particular record.

What Does It Mean For An Offense To Be Enhanceable? And When Can I Expunge My DUI?

While not defined by the code, an offense is enhanceable when the penalty increases for a second or subsequent offense. It is unclear how this is to be interpreted. Some common enhanceable offenses include:

• • DUI
  • Trafficking in Marijuana under Eight Ounces
  • Assault Fourth Degree Domestic Violence

Of particular interest right now is the interpretation of DUI enhanceability. In April 2016, the legislature increased the enhancement window for a DUI to ten years. Some courts have interpreted this to require a defendant wait ten years after their DUI conviction to apply for an expungement. At Unconvicted.com we have been successful in several courts at arguing that the waiting period should be five years for offenses prior to April 2016. If you have a DUI in the last ten years that you need expunged, give us a call.

What Misdemeanors Qualify As “Sex Offenses?”

KRS 431.078 specifies that Sex Offenses are not eligible for expungement. The precise term “sex offense” is not defined by Kentucky Statute. However, “Sex crime” is defined in KRS 17.500(8). It specifies:

“Sex crime” means:

(a) A felony offense defined in KRS Chapter 510, or KRS 530.020,
530.064(1)(a), 531.310, 531.320, or 531.335;

(b) A felony attempt to commit a felony offense specified in paragraph (a) of this
subsection; or

(c) A federal felony offense, a felony offense subject to a court-martial of the
United States Armed Forces, or a felony offense from another state or a
territory where the felony offense is similar to a felony offense specified in
paragraph (a) of this subsection;

In Ladriere v. Com., 329 S.W.3d 278 (Ky. 2010), the Supreme Court of Kentucky endorsed the view that a “sexual offender” is a person who is convicted of or pleads guilty to a sex crime. As there are no misdemeanors designated as a sex crime, it is unclear which, if any, offenses that meet the qualification of “Sex Offense” under KRS 431.078.

Much confusion arises from the fact that there are offenses in Chapter 17 that require registration, but are not statutorily sex offenses.

If you have been convicted of any misdemeanor crime that arguably could be a sex offense, you should consult with an attorney about expungement.

What Misdemeanors Qualify As An “Offense Committed Against a Child?”

Once again “offense committed against a child” is undefined by statute. There is, however, a definition for “criminal offense against a victim who is a minor” in KRS 17.500. It explains:

Except as provided in paragraph (b) of this subsection, “criminal offense
against a victim who is a minor” means any of the following offenses if the
victim is under the age of eighteen (18) at the time of the commission of the
offense:

1. Kidnapping, as set forth in KRS 509.040, except by a parent;
2. Unlawful imprisonment, as set forth in KRS 509.020, except by a
parent;
3. Sex crime;
4. Promoting a sexual performance of a minor, as set forth in KRS
531.320;
5. Human trafficking involving commercial sexual activity, as set forth in
KRS 529.100;
6. Promoting prostitution, as set forth in KRS 529.040, when the defendant
advances or profits from the prostitution of a person under the age of
eighteen (18);
7. Use of a minor in a sexual performance, as set forth in KRS 531.310;
8. Sexual abuse, as set forth in KRS 510.120 and 510.130;
9. Unlawful transaction with a minor in the first degree, as set forth in KRS
530.064(1)(a);
10. Any offense involving a minor or depictions of a minor, as set forth in
KRS Chapter 531;
11. Any attempt to commit any of the offenses described in subparagraphs 1.
to 10. of this paragraph; and
12. Solicitation to commit any of the offenses described in subparagraphs 1.
to 10. of this paragraph.

The only misdemeanors discussed in this list are Sexual Abuse Second Degree, several offenses under KRS 531, attempt offenses, and solicitation offenses. The Kentucky Court of Appeals took a broader view of the definition of “offenses against a child” in the unreported decision of Miller v. Commonwealth, unreported, (Ky. App. Feb. 20 2004).

In our experience, trial courts have been inconsistent in interpreting the language of the statute. We’ve got the experience making these arguments. Give us a call.

How Much Does it Cost To File a Misdemeanor Expungement?

There is a $100 filing fee per case that goes to the court. Fifty dollars of that is refundable if the expungement is not granted. Give us a call to get a quote for us to handle your expungement.

Will The Judge Order a Hearing in My Misdemeanor Expungement?

This varies from county to county. We have handled expungements in over forty courts and the practice varies in each location. If the judge does order a hearing in your case, we can appear on your behalf and will be prepared to argue vigilantly on your behalf.

What Form Do Courts Expect You to Use to File a Misdemeanor Expungement?

Most courts prefer that KRS 431.078 expungements be filed on AOC Form AOC 496.2.

What Are the Effects of a Misdemeanor Expungement Under KRS 431.078?

According to KRS 431.078(6):

Upon the entry of an order to expunge the records, the proceedings in the case shall be deemed never to have occurred; the court and other agencies shall cause records to be deleted or removed from their computer systems so that the matter shall not appear on official state-performed background checks; the persons and the court may properly reply that no record exists with respect to the persons upon any inquiry in the matter; and the person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application.

Do I Have to “Check the Box” When I Apply For Jobs/Loans/Housing After My Misdemeanor Expungement?

No. The law specifically says that you do not have to disclose the conviction or any related matter on an application. If you are asked “have you ever been convicted of a crime” the appropriate answer is “no”.

There are a few exceptions, however. See below.

Who Can See My Sealed or Expunged Misdemeanor Record?

No one can get it at the Courthouse without a Court order. The only way to get the records back after an expungement is to file a motion in the court to review them. This is why we recommending making copies and keeping them somewhere safe before the expungement is granted. If the clerk is asked about the case, they are legally required to answer that “no such record exists.”

Will Expunging a Misdemeanor Domestic Violence Conviction Restore My Gun Rights?

It can. If nothing else is preventing you from possessing a gun, Kentucky’s expungement law meets the requirements of the Federal Domestic Violence Offender Gun Ban and you will be able to own and buy guns legally.

Felony Expungement: KRS 431.073

What Types of Felony Convictions Are Eligible For Expungement Under KRS 431.073?

KRS 431.073 governs the expungement of Class D felony convictions and cases pardoned by the governor.

What Class D Felony Offenses are Expungeable Under KRS 431.073?

When KRS 431.073 was originally written as House Bill 40, it allowed for the expungement of all non-violent, non-sex offense Class D felonies. It was amended in the Senate to list which specific felonies were eligible for expungement. It reads in full:

“Any person who has been convicted of a Class D felony violation of KRS 17.175, 186.990, 194A.505, 194B.505, 217.181, 217.207, 217.208, 218A.140, 218A.1415, 218A.1416, 218A.1417, 218A.1418, 218A.1423, 218A.1439, 218A.282, 218A.284, 218A.286, 218A.320, 218A.322, 218A.324, 244.165, 286.11-057, 304.47-025, 324.990, 365.241, 434.155, 434.675, 434.850, 434.872, 511.040, 512.020, 514.030, 514.040, 514.050, 514.060, 514.065, 514.070, 514.080, 514.090, 514.100, 514.110, 514.120, 514.140, 514.150, 514.160, 516.030, 516.060, 516.090, 516.108, 517.120, 518.040, 522.040, 524.100, 525.113, 526.020, 526.030, 528.020, 528.040, 528.050, 530.010, or 530.050, or a series of Class D felony violations of one (1) or more statutes enumerated in this section arising from a single incident, or who has been granted a full pardon, may file with the court in which he or she was convicted an application to have the judgment vacated. “

By defining which offenses are eligible for expungement by statute number, this created some interesting consequences. Several offenses changed number over time. Many offenses that likely should have been included were not. The Public Defenders office has created the following list of expunge able felonies, though we have expunged several that are not on this list. If you have a Class D felony not on this list give us a call to confirm that it isn’t eligible. Many offenses that predate 1976 are actually eligible. Some offenses, including Trafficking Controlled Substance are eligible, depending upon what year the conviction is from. Some offenses, like Cultivation of Marijuana, have changed statute number since the 90’s will be Certified as ineligible by KSP even though more recent convictions are technically eligible. Give us a call if you have any questions. Here is the unofficial list of expunge able offenses:

17.175 Unauthorized use/dissemination/receipt of DNA info
186.990 Theft of motor vehicle plates/decal
194A.505 False statement or misrepresentation to receive benefits U/ $500
194B.505 False statement or misrepresentation to receive benefits under $100 (repealed in 2005)
217.181 Theft of a legend drug
217.207 Theft, criminal possession, or trafficking of a prescription for
legend drug
217.208 Forgery of a prescription for a legend drug, 1st offense
218A.140 Prohibited acts relating to controlled substances
218A.140(1A) Attempting to obtain a prescription for a controlled substance by fraud or forgery
218A.140(1B) Making a false statement to procure a controlled substance
218A.140(1C) Use of false name or address to procure a controlled substance
218A.140(1D) Making a false statement regarding a prescription
218A.140(2) Possess manufacture, sell, dispense, prescribe, distribute, or administer  any counterfeit substance
218A.140(3) Obtain or attempt to obtain a prescription without having formed a practitioner-patient relationship
218A.282 Forgery of a prescription for a controlled substance, 1st Offense
218A.284 Criminal possession of a forged prescription
218A.286 Theft, criminal possession, or trafficking of a prescription for controlled substance
218A.320 Criminal possession of a medical record
218A.322 Theft of a medical record
218A.324 Criminal falsification of a medical record
218A.1415 Possession of controlled substance, 1st degree
218A.1416 Possession of controlled substance in 2nd degree *ENH*
218A.1417 Possession of controlled substance in 3rd degree *ENH*
218A.1418 Theft of controlled substance
218A.1423 Cultivation of marijuana
218A.1439 Trafficking in or transferring a dietary supplement
244.165 Unlawful sale and shipment of alcohol by out-of-state seller directly to a KY consumer
286.11-057 False Statement/Certification in money transmission record
304.47-025 Felony offense involving dishonesty or breach of trust; Fraudulent Insurance Act
324.990 Engaging in real estate brokerage without license
365.241 Counterfeiting intellectual property
434.155 Filing illegal lien
434.675 Use of scanning device or re-encoder to obtain payment card info
434.850 Unlawful access to a computer in the second degree
434.872 Disclosure of information from financial information repository
511.040 Burglary, 3rd degree
512.020 Criminal mischief, 1st degree
514.030 Theft by unlawful taking
514.040 Theft by deception under $10,000
514.050 Theft of property lost, mislaid, or delivered by mistake
514.060 Theft of services
514.065 Possession, use, or transfer of device for theft of telecom services
514.070 Theft by failure to make required disposition of property
514.080 Theft by extortion
514.090 Theft of labor
514.100 Unauthorized use of automobile or other propelled vehicle
514.110 Receiving stolen property under $10,000
514.120 Obscuring identity of machine or other property
514.140 Theft of mail matter
514.150 Possession of stolen mail matter
514.160 Theft of identity
516.030 Forgery, 2nd degree
516.060 Criminal possession of forged instrument, 2nd degree
516.090 Possession of a forgery device
516.108 Criminal simulation in the first degree
517.120 Operating a sham or front company
518.040 Sports bribery
522.040 Misuse of confidential information
524.100 Tampering with physical evidence
525.113 Institutional vandalism
526.020 Eavesdropping
526.030 Installing eavesdropping device
528.020 Promoting gambling
528.040 Conspiracy to promote gambling
528.050 Possession of gambling records in the first degree
530.010 Bigamy
530.050 Flagrant non support

What if the Governor Pardoned My Offense?

Even after an offense is pardoned by the Governor, it continues to show on a background check. The only way to remove a pardoned offense from a background check is to seek an expungement. Any felony, if pardoned by the Governor, can be expunged under KRS 431.073. The pardon must be a full pardon, not merely a restoration of rights. At Unconvicted.com we have secured expungements for cases as serious as Reckless Homicide after receiving a pardon.

What are the Legal Requirements for a Felony Expungement under KRS 431.073?

In order to expunge a felony, your felony must be one of the eligible offenses or have been pardoned by the Governor.

Additionally:

1. In the five years before filing for the expungement you cannot have been convicted of a felony or misdemeanor.
2. You cannot currently have a pending felony or misdemeanor charge.
3. At least five years must have passed since you completed your sentence.
4. You cannot have previously expunged a felony conviction under KRS 431.073.

So How Long Do I Have To Wait After I’m Convicted to Expunge a Felony?

There are two time limits to consider when expunging a non-felony conviction:

1. It must be five years since **completing your sentence** for the offense you are seeking to expunge; and
2. You cannot have had any convictions for misdemeanors or felonies in the last five years.

If you received any type of probation or parole, the expungement date will be five years from the date you completed probation or parole.

So What Kinds Of Offenses Can’t I Have In The Last Five Years?

You cannot have been convicted of any misdemeanors or felonies, or have a pending misdemeanor or felony offense. Determining the level of offenses, particularly traffic offenses is complex. For example, KRS 186.510, “License To Be In Possession” is technically a class B misdemeanor under KRS 186.990. Other offenses, like DUI First Offense are arguably not misdemeanors under the holding of the *Anglin* case. These determinations can be particularly difficult, and there are still open questions. At Unconvicted.com we have resolved many disputes about the eligibility of charges for expungement by working with the Kentucky State Police during the Certification Process.

If you have any offenses on your record in the last five years, and you would like an expungement, it is best to have an attorney screen your particular record.

What If I Have Multiple Felony Convictions?

This area is complex. If you have one conviction for Possession of a Controlled Substance and another qualifying conviction, it is possible to void and seal the possession conviction and to expunge the other conviction.

If one of your multiple felonies is not Possession of a Controlled Substance, it becomes more difficult. According to KRS 431.073, you can expunge “a series of Class D felony violations of one (1) or more statutes enumerated in this section arising from a single incident.” It is an open question as to what constitutes a “series of violations” and what constitutes a “single incident”.

At Unconvicted.com we have advocated for the “single conviction” test adopted in KRS 532.080. It reads:

“For the purpose of determining whether a person has two (2) or more previous felony convictions, two (2) or more convictions of crime for which that person served concurrent or uninterrupted consecutive terms of imprisonment shall be deemed to be only one (1) conviction, unless one (1) of the convictions was for an offense committed while that person was imprisoned.”

Several courts have agreed with us and have applied this test. We have had a few clients succeed in expunging multiple indictments because of it. Not all courts have agreed though (at the time of writing, we have had an 80% success rate in the multiple indictment cases we have taken) and this issue will be going to the Court of Appeals this year.

If you do not meet the requirements of KRS 431.073, you will have to seek a full pardon from the Governor’s office before becoming eligible for an expungement.

How Does the Timeline Work on a Felony Expungement?

Under KRS 431.079 you must first request a Certificate of Eligibility from the State Police. This can take two to four weeks. After this, you must file for your expungement within thirty days of the certificate date. Once filed the prosecution has sixty days to respond and the court has an additional sixty days to rule on the petition or order a hearing. This process can sometimes take longer depending upon the jurisdiction. Once granted, AOC removes the records from their database quite quickly. KSP and the FBI take considerably longer, sometimes six months or longer.

 

How Much Does it Cost To File a Felony Expungement?

There is a $500 filing fee per case that goes to the court. Four-hundred fifty dollars of that is refundable if the expungement is not granted. Give us a call to get a quote for us to handle your expungement.

Will The Judge Order a Hearing in My Felony Expungement?

This varies from county to county. We have handled expungements in over forty courts and the practice varies in each location. If the judge **does** order a hearing in your case, we can appear on your behalf and will be prepared to argue vigilantly on your behalf.

What Form Do Courts Expect You to Use to File a Felony Expungement?

Most courts prefer that KRS 431.073 expungements be filed on AOC Form AOC 496.3.

What Are the Effects of a Felony Expungement Under KRS 431.073?

According to KRS 431.073:

Upon entry of an order vacating and expunging a conviction, the original conviction shall be vacated and the record shall be expunged. The court and other agencies shall cause records to be deleted or removed from their computer systems so that the matter shall not appear on official state-performed background checks. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application. If the person is not prohibited from voting for any other reason, the person’s ability to vote shall be restored and the person may register to vote.

Can I Get a Gun After My Felony Expungement?

Assuming nothing else was preventing you from legally owning a gun, yes. It will take some time to pass an FBI background check, but legally you can buy a firearm after your felony is vacated.

Do I Have to “Check the Box” After My Felony Expungement?

No. Your conviction is vacated. The law specifically says that you do not have to disclose the conviction or any related matter on an application.

Who Can See My Sealed or Expunged Record?

No one can get it at the Courthouse without a Court order. The only way to get the records back after an expungement is to file a motion in the court to review them. This is why we recommending making copies and keeping them somewhere safe before the expungement is granted.

When Should I Disclose My Expungement?

You should consider disclosing expunged charges when applying for entry into foreign countries, on immigration applications, and when answering questions on applications to the federal government. Consult with your lawyer for a full list of scenarios.

Voiding and Sealing Possession Convictions: KRS 218A.275 and 218A.276

So far we’ve talked about expungement provisions that apply to most crimes. The Controlled Substances chapter of the Kentucky Revised Statutes allows for a special type of expungement for people convicted of possession of a controlled substance offenses.

Why Would I Consider a Void and Seal Instead of an Expungement?

There are four primary reasons to consider a void and seal procedure instead of expungement:

1. The time for an expungement has not passed yet. Most expungements require over five years to pass since your conviction. You are eligible to void and seal as soon as your sentence is complete;
2. You have two felony convictions not arising from a single incident and one is for Possession. This is a way to expunge multiple felony cases;
3. Cost: there is no requirement of a certificate of eligibility or filing fee to void and seal a case.
4. Pending cases: there is no legal restriction on moving to void and seal a possession conviction while you have a pending case.

How Does Voiding and Sealing a Conviction Work?

There are two provision that allow for voiding and sealing possession convictions. KRS 218A.275 and KRS 218A.276. KRS 218A.275 describes the procedure for voiding and sealing a Possession of a Controlled Substance conviction (including first degree-the felony). KRS 218A.276 describes the procedure for voiding and sealing a conviction for possession of marijuana, synthetic drugs, or salvia.

Is There An AOC Form For Voiding and Sealing?

Yes and no. AOC Form AOC 496.2 technically can work, but many clerks will (incorrectly) charge a filing fee if you use this form.

What is the Legal Effect of a Void And Seal Procedure?

Here is the language from 218A.275:

Except as provided in subsection (12) of this section, in the case of any person who has been convicted for the first time of possession of controlled substances, the court may set aside and void the conviction upon satisfactory completion of treatment, probation, or other sentence, and issue to the person a certificate to that effect. A conviction voided under this subsection shall not be deemed a first offense for purposes of this chapter or deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. Voiding of a conviction under this subsection and dismissal may occur only once with respect to any person. (9) If the court voids a conviction under this section, the court shall order the sealing of all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records, except as provided in KRS 27A.099. The court shall order the sealing on a form provided by the Administrative Office of the Courts. Every agency with records relating to the arrest, charge, or other matters arising out of the arrest or charge that is ordered to seal records, shall certify to the court within sixty (60) days of the entry of the order that the required sealing action has been completed. (10) After the sealing of the record, the proceedings in the matter shall not be used against the defendant except for the purposes of determining the person’s eligibility to have his or her conviction voided under subsection (8) of this section. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record has been sealed shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application. (11) Inspection of the sealed records may thereafter be permitted by the court pursuant to KRS 27A.099 or upon a motion by the person who is the subject of the records and only to those persons named in the motion or upon a motion of the prosecutor to verify a defendant’s eligibility to have his or her conviction voided under subsection (8) of this section. (12) A person who has previously had a charge of possession of controlled substances dismissed after completion of a deferred prosecution under KRS 218A.14151 shall not be eligible for voiding of conviction under this section.

So A Void and Seal is the Same as an Expungement?

Well not exactly. It depends upon when the offense was voided and sealed. Post 2012 most void and seal procedures function (mostly) the same as an expungement. This is a complex area of law. The only interpretation of this by the Supreme Court of Kentucky comes in Commonwealth v. Jones in 2013, but it applies to an older version of the statute.

Can I Own a Gun After a Void and Seal?

This question requires an individual determination by a lawyer. Give us a call and we can screen your record for a low cost and advise you about your eligibility to possess firearms under state and federal law.

Other Options For Those That Don’t Qualify

Many people will have convictions that do not qualify for expungement. For those of you out there, you have a few options, though most are relative long shots.

Option 1: Ask The Prosecutor to Agree to an Amendment/Waive Objections

Sometimes a person will clearly deserve an expungement, but not meet the precise legal qualifications. For example, the legislature forgot to add “Possession of Drug Paraphernalia — Second Offense” to the list of expungeable felonies, even though the crime is no longer a felony. We have had success with prosecutors waiving objections to minor defects like this where the defendant was not technically eligible. This approach almost certainly requires a lawyer, and is frequently more time consuming and expensive than a traditional expungement, and less likely to succeed. We only take exceptional cases in this category that we believe we can really make a difference in.

From a technical legal perspective, this can be accomplished by an agreed order amending an offense under Civil Rule 60.02, though a judge still has to sign the order. Then the normal steps of expungement have to be followed.

Option 2: Seek a Full Pardon From the Governor

Any felony offense that has been pardoned by the Governor can be expunged under the same conditions as eligible felonies. Most governors have granted pardons at the end of their term, so this only happens ever four years. Further, yours must be an exceptional case. In most administrations only a couple hundred people have received full pardons.

Option 3: Seek a Partial Pardon From the Governor

This is not a full rights restoration, but it will restore your right to vote. Far more of these get granted than full pardons.

Frequently Asked Questions

Can I Get a Gun After My Expungement?

There is no easy answer to this question. State and federal gun control laws are complex and require an individual determination. If nothing else is affecting your ability to own a gun other than a conviction, Kentucky’s expungement process will restore your right to possess firearms. Many of our clients have gone on to get guns and carry concealed licenses.

Can I Enter Canada After Expunging My DUI?

This is quite complex. Look for a longer article on the blog later, and full coverage of this issue in the print edition of this book.

Is It Possible to Speed Up The Expungement Process?

If you have an emergency or a job you are applying for RIGHT NOW, we can expedite expungements for an additional fee.

Can I Expunge My Trafficking Conviction?

Maybe. Most felony trafficking convictions do not qualify, but some from the early 1990’s were convictions under a prior version of the statute (KRS 218A.140). These convictions are eligible and we have expunged several. Misdemeanor trafficking convictions also depend upon which statute you were convicted under. That is because of the enhanceability requirement.

Do You Have A Nifty Table For All This?

Sure.

Expungement Forms, Statutes, and Case Law

Coming Soon.