Comprehensive Criminal Sealing Act of 2013:
Two years have passed since the comprehensive overhaul of the Arkansas’ expungement statutes went into effect.
Providing clearer, standardized definitions for sealing records, the law has had time to be implemented and interpreted by the Courts. This article will focus on the current state of sealing criminal records in Arkansas.
Perhaps the most beneficial aspect of the 2013 law is the new misdemeanor statute.[i] Under previous laws, courts were oftentimes confused whether they had authority to seal misdemeanors. Under the current law, it is clear ALL misdemeanors can be sealed, regardless of when they were committed. A person seeking to seal a misdemeanor need to only wait 60 days from when they complete his or her sentence and pay all fines, costs and restitution with some exceptions.[ii]
While the legislature did a fine job clearing up the misdemeanor problem, it created a new problem with its felony language.[iii] Leaving in place the Community Punishment Act[iv]and not making the new felony laws retroactive, the legislature left it up to the Arkansas Supreme Court to clear the confusion.[v] The Supreme Court ruled that felony convictions before January 1, 2014 will not be governed by the new act.
This means that any felony conviction since 1993 is still governed by the Community Punishment Act.[vi] A felony conviction may be sealed if the conviction is a target offense,[vii] is not a violent or sexual felony, is not a Y-class felony and is the first or second felony conviction. Also, to qualify for the Community Punishment Act, an offender cannot be sentenced to the Arkansas Department of Corrections. The most useful provision of this Act is that there is no waiting period from the completion of the sentence.
For convictions that occurred after January 1, 2014, the Comprehensive Act will be in effect. The biggest change in procedure is that there is a five-year waiting period from the completion of the sentence before a record may be sealed. Most convictions have some crossover with the Community Punishment Act and the Comprehensive Act so if the conviction is covered by the previous Act, it is best to use it.
There are some convictions, however, that qualify under the new statute that do not under previous record-sealing statutes. Previously no violent felony convictions could be sealed. Language in the new statute restricts what violent felonies mean so that some lower-level violent offenses may still be sealed.[viii]
The new law left (mostly) untouched the statutes regarding First Offenders, Drug Court and Juvenile expungements.[ix] These are narrower in application but provide more benefits. While the Community Punishment Act and Comprehensive Act seal criminal records, these statutes dismiss the underlying conviction. This means that qualifying under these statutes allows the person to restore his or her gun rights and enables the person to become a guardian.
If you have a criminal record and would like help sealing the record for housing, employment or some other purpose, call Legal Aid of Arkansas’ helpline at 1-800-952-9243 to see if you are eligible. Legal Aid of Arkansas is a non-profit, public interest law firm that provides free legal services to low-income Arkansans with civil legal problems.
[i] Ark. Code Ann. § 16-90-1405
[ii] There are seven misdemeanors that require a five-year wait from the date of completion of the sentence. These are negligent homicide, battery 3rd, indecent exposure, public sexual indecency, sexual assault 4th, domestic battery 3rd and DWI 1st through 3rd.
[iii] Ark. Code Ann. §§ 16-90-1406 – 16-90-1408
[iv] Ark. Code Ann. § 16-93-1201
[v] Bolin v. State of Arkansas, 2015 Ark. 149
[vi] In Fulmer v. State of Arkansas, 337 Ark. 177 (1999), the Arkansas Supreme Court held that a person does not specifically have to be sentenced under this Act but that the requirements of the Act are fulfilled to enjoy the privileges the Act affords.
[vii] Ark. Code Ann. § 16-93-1202
[viii] Violent felonies barred from sealing include Murder 1st or 2nd, kidnapping, aggravated robbery, battery 1st or domestic battery 1st, terroristic act, rape, sexual assault 1st or 2nd, aggravated residential burglary, unlawful discharge of a weapon from a vehicle or criminal use of prohibited weapons involving activity making it a B-Class felony.
[ix] Ark. Code Ann. § 16-93-301
Ark. Code Ann. § 16-98-303
Ark. Code Ann. §§ 9-27-309; 16-90-602