First, I should say that New York does not have an expungement law. It does allow for some records to be sealed. There are two situations when people call asking to get old cases sealed.
Situation 1: The DMV is refusing to relicense a driver because of the driver’s criminal record, so clearing it up becomes important.
Clearing up your criminal record can be attempted in two ways. First, if there are mistakes on your rap sheet, you can try to correct them. This may not require a lawyer. Some time ago the Legal Action Center in New York City published a guide to getting and correcting Your New York State Rap Sheet. The download is free, and this is a good first step to getting things straightened out.
If you find there are no mistakes on your rap sheet, you will need a lawyer to try and get your convictions sealed or overturned. This is not an easy process. It is time-consuming, and an appellate lawyer can help you decide if the expense is a good investment for you. To be clear, I am not an appellate attorney. You may wish to contact Danielle Wild, Esq., or a different lawyer who focuses their practice on appeals.
Situation 2: Sometimes, when a person has been cleared of a misdemeanor DWI, but was convicted of the non-criminal offense of Driving While Ability Impaired (DWAI), they want the criminal charge completely off their record.
In New York, if a person is charged with a crime (or multiple crimes), the arrest and other information will be entered onto their rap sheet. If the charges are completely dismissed or if the person is found not guilty of all the charges after a trial, then the record will be sealed. Fingerprints and mugshots are supposed to be destroyed, and the charges are erased from the person’s rap sheet.
However, what if a person is charged with a crime like DWI, and then pleads to the non-criminal offense of Driving While Ability Impaired (DWAI)? In a case like that, their rap sheet will show the DWI arrest information, and then show the DWAI conviction information. It will also show if the person was sentenced to a conditional discharge, probation, or incarceration.
Getting a DWAI sealed is difficult, in part because it serves as a “predicate offense.” A predicate offense is a conviction that can lead to enhanced charges or punishments if you are once again accused of a similar crime. For example, if you are charged with DWAI within five years of a first DWAI conviction, your face increased exposure to enhanced fines, license revocation, and jail. If you are charged with DWAI for a third time after two prior convictions within ten years, it is classified as a misdemeanor.
As a result of DWAI’s status as a predicate offense, a legally proper conviction that has not been reversed cannot come off your record for at least ten years. Once ten years passes, you can hire an attorney in an attempt to get the case sealed under Criminal Procedure Law § 160.59. For more information on getting a record sealed, follow this link.
