Expungements, Limited Access Orders, & Pardons
Many students are concerned about how a citation, charge, or conviction will impact their future employment. Pennsylvania law provides three ways to clean up a criminal record: expungement, limited access order, and pardon.
Pennsylvania passed a new law, called the Clean State bill, which will further expand the options for sealing records, and includes automatic sealing of certain records. Most provisions of the bill will begin in June 2019. Community Legal Services of Philadelphia maintains up to date information on the Clean Slate bill.
If a court orders an expungement, all court and administrative criminal history record information related to the charge or conviction are destroyed. Expungement can be requested only for certain types of records:
- Non-conviction data (this includes charges and citations that result in a disposition of 'not guilty,' 'withdrawn,' 'dismissed,' 'dismissed-YOP/YES,' or 'nolle prosse')
- Underage drinking convictions--at age 21 and upon completion of all court-ordered requirements, including the driver's license suspension
- Other summary offenses--after 5 years as long as the individual has been free from arrest or prosecution during that time
Limited Access Order
If a court enters a limited access order, the criminal history record information is no longer publicly available and employers who conduct Pennsylvania criminal background checks are not able to ask about or obtain the record. Criminal justice agencies, children and youth services, and state licensing agencies are still able to obtain the record. Employers who conduct federal background checks currently still see the criminal history information.
Limited access orders can be requested after an individual remains free from arrest or prosecution for 10 years after serving a sentence for ungraded misdemeanors and misdemeanors of the second and third degree. There are many exceptions, so it is best to talk to an attorney if you think you might be eligible for a limited access order.
For convictions that are not eligible for expungement or limited access order, the only way to remove the crime from a criminal history record is to first obtain a pardon. If a pardon is granted, the record can then be expunged. A pardon is an extreme remedy and rarely granted. Consideration of a pardon application takes several years and may require that the applicant demonstrate years of living a productive, law-abiding life before starting the application process.
When the Clean Slate provisions go into effect in June 2019, non-conviction data and some summary and lower level misdemeanor offenses will be eligible to be sealed or will be sealed automatically. The sealed record will no longer be publicly available through the Commonwealth of Pennsylvania, including through a State Police background check, but remains available to law enforcement entities, children and youth services, and state licensing agencies. The sealed record remains available through federal background checks, and to employers who are required to consider the records under federal law. Community Legal Services of Philadelphia has a good flow chart that illustrates what will be sealed or eligible to be sealed under the new law.
Requesting an Expungement, Limited Access Order, or Pardon
To obtain an expungement or limited access order, you must petition for the relief in the court of common pleas for the county in which you were cited or arrested. The Administrative Office of Pennsylvania Courts has blank forms available.
To request a pardon for state convictions, follow the Pennsylvania Board of Pardons process. For federal criminal convictions, follow the U.S. Department of Justice process.
Employment and Background Checks FAQs
- What is a Governor’s Pardon?
A pardon is an official act of mercy taken by the Governor of Pennsylvania upon the recommendation of the PA Board of Pardons. A pardon completely frees an individual from the control of the state, exempting an individual from further punishment and relieving an individual from all the legal disabilities resulting from a conviction.
Examples of such legal disabilities include, but are not limited to, the right to purchase or carry a firearm, right to hold public office, right to be a juror, the right to vote, and the opportunity to obtain certain employment.
- What is an Expungement?
An expungement is a court-ordered administrative act of destroying or removing an individual’s criminal history record information, such as conviction, arrest, and similar record. Once a charge is eligible for expungement, the defendant still has to petition the court to request this remedy.
- Is it easier to get a pardon or an expungement?
A pardon is an extreme remedy and rarely granted. Consideration of a pardon application takes several years. If you have a conviction that is eligible for expungement, the process is complete in less than one year. The court may still have the ability to deny an expungement request, but expungements are granted more readily than pardons.
- Will my record be expunged if I’m granted a pardon?
No, a pardon does not expunge the conviction from your criminal record. If you are granted a pardon, however, you would become eligible to have your conviction records to be expunged.
- If convicted of an offense, when do I become eligible to have a criminal record expunged?
It depends based upon the offense committed and the grading of the offense.
Underage Drinking: A person is eligible to have the conviction record expunged after he or she turns twenty-one (21) years of age and has completed all court-ordered requirements, including the driver’s license suspension.
Other summary offense: A person is eligible to have a conviction record expunged after five (5) years, so long as they have been free from arrest or prosecution during that time.
Misdemeanors: Some ungraded, second and third degree misdemeanors are eligible for a limited access order if the individual is free from conviction for ten years. Others are not. Community Legal Services of Philadelphia has a helpful chart on eligibility (which includes those that will become eligible in June 2019 under the Clean Slate bill). A Governor's pardon is the only remaining option if a misdemeanor conviction is not eligible for sealing.
Felony or first degree misdemeanor: Practically speaking, a felony or first degree misdemeanor conviction results in a life-long criminal record. The only way to erase the record is to first obtain a Governor's pardon.
- If I receive a pardon, and then am asked by an employer or future employer whether I have been convicted of a crime, can I say no?
Yes, you can say that you were never convicted of a crime. In Commonwealth of Pennsylvania v. Sutley, 378 A.2d 780, 789 (Pa. 1977), our Pennsylvania Supreme Court explained that a pardon “blots out the very existence of his guilt, so that, in the eye of the law, he is thereafter as innocent as if he had never committed the offense." Id.
Despite this language, it is recommended that, if you deny being convicted after receiving a pardon, you should explain that you were not convicted as a result of the pardon.
- If I have my conviction records expunged but am asked by an employer or future employer whether I have been convicted of a crime even if it has been expunged, can I say no?
Currently, PA law does not address whether an applicant can withhold information about an expunged or sealed conviction from an employer, or whether an employer can make an adverse hiring decision if they learn an applicant did not disclose such information. Accordingly, under current Pennsylvania law, it is unclear whether an employer could make an adverse hiring decision based upon an applicant's failure to disclose expunged criminal charge or conviction information.
When the Clean Slate Act becomes effective in June 2019, it includes a provision that specifically allows individuals whose records are sealed under that Act to respond to employers as if the offense did not occur.
- When completing an application, what are important things to consider?
You must be honest when completing an application but that does not mean you must provide more information when the employer does not specifically ask for that information. Thus, it is important to know that certain terms have certain meanings, and it is important to read the question that is asked very carefully and only answer the question that is asked.
For instance, if you successfully completed ARD, YOP, or a similar diversionary program for an offense, you were never convicted of that offense. Instead, the charge would have been legally dismissed. If the question then only asks about convictions, you can answer honestly that you were never convicted.
For another example, an employer may ask only about felony convictions. If you were convicted of a misdemeanor and not a felony, then you can answer that you were never convicted of a felony and need not disclose the misdemeanor conviction.
No legal advice is provided on this website. Every case is different. For advice about your specific situation, please complete our intake form to request an appointment with an attorney.
Reviewed: July 5, 2018