Many times you may want to have a record sealed or expunged, but a criminal conviction is keeping you from qualifying. THERE IS HOPE!
OVERTURNING (VACATE) A CONVICTION - Bringing you back from the legally dead
If you have been previously convicted of a crime, that conviction WILL disqualify from sealing or expunging your criminal record. Don't despair, there may be a way to vacate (overturn) that conviction if you meet certain conditions.
This page explains what criteria you need to meet in order to vacate a conviction that may be preventing you from sealing or expunging your criminal record and court case.
Terminology you should know for this page:
- 1. Vacate
- When a Court "Vacates" or "Sets Aside" a conviction, the conviction is essentially removed and the case is again open. We'll use the term, "overturn" to keep it simple.
- 2. Disposition
- This means how the case was "disposed of" or how it was closed out to. The disposition will be one of a few things: adjudicated guilty, adjudication withheld, dismissed, nolle prossed (dropped), no file or no action (means the case was never formally filed by the state attorney's office), found guilty by judge or jury, or acquitted by judge or jury.
- 3. Adjudicated or Adjudicated Guilty
- Means you were "convicted" of the crime you were charged with. This is bad. Any conviction will disqualify you from being eligible to seal or expunge.
- 4. Withhold of Adjudication or Adjudication Withheld
- Means that the Court found you guilty, but withheld adjudication. A withhold of adjudication is not a "conviction" for purposes of sealing or expunging a criminal record. This is good.
Here's the key to overturning that conviction: You were convicted (adjudicated guilty) for a crime, whether it was a misdemeanor or felony, AND:
- You were NOT REPRESENTED by a lawyer;
- didn't waive your right to a lawyer when you took the plea deal;
- less than 2 years have passed since you took a plea.
You may be able to overturn that conviction!
Taking a plea without a lawyer being appointed to you by the court or without waiving your rights is rare in felony cases but happens often in Misdemeanor cases. This usually occurs when you were brought before a judge the morning after the day you were arrested (usually in video court). What usually happens is that the judge asks if you want "time served" to close your case out. Anxious, to get out you take the "credit time served" offer just to get out of jail. It's understandable, jail is not fun and you are dying to get out, but that credit time served plea you took may have given you a conviction! That misdemeanor conviction (even for something minor) can keep you from sealing or expunging the charge you just took a plea to or a more serious charge on your record that you were never convicted of. If this happened to you, you may be able to overturn (vacate) that conviction.
Getting the conviction overturned: There is a way to do it.
- Usually must be done within two (2) years of the time you took that plea or you may be out of luck.
- Must have not been represented by a lawyer at the time you took the plea.
- You didn't waive your right to a lawyer when you took the plea.
**Overturning a conviction may be particularly helpful in driver's license suspension cases where people pile up conviction after conviction for credit time served deals that only end up putting them in habitual traffic offender status!
SUSPENDED DRIVER'S LICENSES
Overturning a conviction is also helpful in minor cases such as possession of marijuana or drug paraphenelia. Most people don't know that if you are convicted for any drug related offense, the court is required to direct the Department of Highway Safety and Motor Vehicles to suspend your license for a period of two years! If the conviction(s) is overturned, the case is again "open". It is like starting from the beginning all over again. However, you may be then able to re-close it with a withhold of adjudication (or maybe get it dismissed) and then seal or expunge that arrest that you just had overturned or seal another arrest that the conviction had prevented previously. Also, if you have a suspended license, the overturning of your drug related conviction may put you in the legal position of getting your license back! Then, you may seal or expunge your drug conviction or another charge that you wanted to seal or expunge.
The drawbacks of overturning a conviction:
Remember, overturning a conviction may also have its drawbacks. It puts you back in the same position you were before you were convicted the first time. Remember, it's like starting all over again. We will do our very best to attempt to re-close it without a conviction, however, no honest attorney should ever guarantee you any certain outcome in any case and we won't either. The fact is there is always a possibility that you may get a worse sentence the second time around.
The positives of overturning a conviction:
However, we know from experience, that in certain situations, certain results are typical. For example, if you have never been convicted of anything before, and the only conviction you have ever had is for the case you are trying to have overturned, it is very rare, especially in misdemeanor cases, that the Court or State Attorney will press for a conviction when it is re-closed. Also, usually it benefits you to have your conviction overturned because the case is now older and more difficult for the State Attorney to prove.
Cost to overturn a conviction
This is a separate service distinct from record sealing or expunging. The cost varies based on what type of charge you need overturned and how much work we need to do after it has been overturned. This is because not only are we filing a "motion to vacate" your previous conviction, but now we are also representing you in the now "open" case if the court grants the motion. This means you will fight for you in the newly re-opened case to make sure you are not convicted the second time around. Remember, if the case can be re-closed without a conviction you may then be able to seal your record and undo some other damage caused by the previous conviction (driver's license suspension). There is no guarantee that the motion to vacate will be granted. However, if it is, and you are "unconvicted", when closed the second time around, a case is usually closed with better results than what happened the first time around.