First Offender Expungement

First Offender Defined Under Ohio Expungement Law

Do I have to be a “first offender” to have an expungement and sealing of my Ohio criminal record?

Many people mistakenly believe that a person has to be a first offender in order to have an expungement and sealing of their criminal record. While this was a requirement under previous versions of the Ohio expungement law, this is no longer the case under the new Ohio expungement statute.  Unfortunately, people are even given the wrong information from some of the out-of-state businesses offering to clear criminal records in Ohio.  Some of these out of state expungement businesses from California, New Jersey and other states are using old and inapplicable Ohio Law.   They are not aware that there have been major changes to Ohio law for Sealing of criminal records that changes who is eligible for an expungement in Ohio. This is a disservice if someone is given bad advice based upon old law that they do not qualify when in fact they do qualify under the new law.

Under the old version of the Ohio expungement and Sealing statute (Ohio revised code 2953.31) a first offender was defined as:

“First offender” means anyone who has been convicted of an offense in this state or any other jurisdiction and who previously or subsequently has not been convicted of the same or a different offense in this state or any other jurisdiction….”

Generally a person could only have one conviction of a misdemeanor or felony, and have no other convictions in Ohio or any other state, in order to obtain an expungement and sealing of their criminal record.  As a result, it was crucial to determine if one was a first offender. For years, listed in the law Ohio.  If the person applying for expungement was not a first offender, the courts lack jurisdiction to grant an expungement.

Under the old Ohio Sealing of Record Law, there were some exceptions to the requirement of having only one conviction in order to qualify as a first offender under the Ohio Expungement Statute.  ORC 2953.31 provided that if a person was convicted of two or more crimes based upon the same action, then all of those convictions were considered one conviction and all the charges could be expunged and sealed from their record.  Further, convictions for minor misdemeanors, including most non-serious traffic offenses did not count as a conviction.  This created confusion among the trial court’s Court of Appeals in the application of laws related to expungement of criminal records in Ohio.   Further, this prevented many individuals who had two non-serious criminal convictions from having expungement.  In order to clear up some of the confusion and limitations surrounding Ohio expungement law, the Ohio legislature made some substantial amendments to the process for sealing of records in Ohio under Senate Bill 337.

Under the new laws for Ohio expungement and sealing of records (Ohio Revised Code 2953.31 and related sections), the requirement that a person must be a first offender was eliminated. The new Ohio expungement and sealing law now requires that a person be an “eligible offender “in order to have their criminal records sealed.  The changes under the new law represent a significant expansion of who is eligible for expungement in Ohio. No longer is expungement and sealing of records limited only to those who have one conviction.  Rather, under the new Ohio expungement statute, a person can have more than one conviction, or multiple convictions, and still have their records expunged and sealed.

Senate Bill 337 defines eligible offender as:

“Eligible offender” means anyone who has been convicted of an offense in this state or any other jurisdiction and who has not more than one felony conviction, not more than two misdemeanor convictions if the convictions are not of the same offense, or not more than one felony conviction and one misdemeanor conviction in this state or any other jurisdiction.

Under this new Ohio sealing of criminal record law, a person with a single conviction or multiple convictions can obtain an expungement provided they fall within the following combination of convictions:  one misdemeanor conviction; or one felony conviction; or two misdemeanor convictions; or one misdemeanor conviction and one felony conviction.

There are many exceptions and additions to these basic eligibility requirements for expungement under the new Ohio law.  For instance, if a person has convictions two or more crimes based upon the same facts or circumstances, then all those convictions are considered “one conviction.”   As an example, if an individual has three felony convictions out of one case, those three convictions count as one conviction, and that person would be eligible to have another conviction from a separate misdemeanor case expunged.

Further, certain criminal records do not count as a “conviction.”  Dismissed charges do not count as a conviction and there is no limitation on the number dismissed charges that can be expunged and sealed.  Convictions for minor misdemeanors, including most traffic charges, do not count as criminal convictions and should not prevent a person from having their criminal convictions expunged and sealed.

Under the new Ohio expungement statute, a person can now obtain an expungement even though they may have received a previous expungement from a separate criminal conviction. Eligible offenders can have up to two different and separate expungements from two different and separate cases. Prior expungement does not preclude an eligible offender from having a subsequent criminal conviction expunged. However, a previous expungement of a criminal conviction does count as a conviction when determining the total number of convictions allowed to be expunged and sealed.

The new expungement law still requires the court to conduct a hearing on each application for expungement and sealing of records.  The prosecutor has the right to object to the granting of an expungement in writing or orally. The Prosecutor may file an objection prior to the hearing or they may raise the objection on the date of the hearing with no notice to the applicant.

If your application for expungement has been denied under the old Ohio expungement law, you can reapply for expungement under the new Ohio law. It is crucial for everyone to understand that if a person was not eligible for expungement under the old law, they may now be eligible under the new law for expungement and sealing of their criminal records in Ohio.

If you would like to know if you are eligible for expungement and sealing of your record, we provide a free consultation and all of our communications remain confidential. Please complete our free consultation page and receive a quick response to your questions.