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Expungement: Felonies, Misdemeanors and Infractions

Missouri has changed its expungement law. The phone has been ringing with questions from excited and hopeful people asking about expunging felonies, misdemeanors and infractions. Missouri has always allowed for the expungement of certain offenses, but there are now new opportunities to expunge criminal convictions or guilty pleas unlike before. Expunging felonies, misdemeanors and infractions may help people obtain jobs or remove a stigma a person has experienced.

Expunging felonies, misdemeanors and infractions make a person’s arrest records, court records, guilty pleas and convictions confidential so that the records are not available to the public, except in very limited circumstances. Not every felony, misdemeanor and infraction is eligible for expungement. There are still limitations on the types of offenses that may be expunged.

Requirements to expunge a criminal record include, but are not limited to, the following:

(1) It has been at least seven years for a felony and three years for a misdemeanor since the person completed probation or the sentence;

(2) The person has not been found guilty of any other felonies or misdemeanors;

(3) The person has paid the prior fine, court costs or restitution;

(4) The person does not have charges pending.

Once the determination is made that a person is eligible for expungement, then the petition must be prepared. The petition requires detailed information about the person’s criminal record. The petition is then filed. Once all the appropriate persons have been served, the court will schedule a hearing. The fact that a person files the petition does not automatically mean its granted. The court must also find that the person’s habits and conduct demonstrate the person is not a threat to public safety, and that the expungement is consistent with the public welfare.

For more information about the expungement process, including questions about eligibility, contact Scott Hamblin at scotthamblin@brydonlaw.com or (573) 821-4013.

I appeared in the United States Court of Appeals yesterday to argue an issue addressing the continuing erosion of the Fourth Amendment to the United States Constitution. The Fourth Amendment protects our rights as individuals to be free from an unlawful searches and seizures by law enforcement. A search of a person’s home without a search warrant is presumed unreasonable under the Fourth Amendment. Generally, evidence obtained as a result of a warrantless search cannot be used against an individual in court. However, there are several exceptions to the search warrant requirement which can allow law enforcement to enter a home even without a search warrant in connection with criminal activity such as when law enforcement are pursuing a person or upon a belief that evidence might be destroyed – such as drugs. But this was not the situation when law enforcement entered my client’s home.

The facts of my client’s case are public record. A shed had caught fire in a rural area. Firemen and law enforcement reported to the scene. The shed that was on fire was located some distance behind the house; the house was in no danger of catching fire. Fireman learned upon arrival that a neighbor who reported the fire had moved a truck that was previously close to the burning shed. There was a dog in the cab of the truck and the neighbor found a rifle lying on the ground. None of the residents of the house could be located. The house itself was dark. There were no lights on inside the house. There was no sound coming from the house. The house was locked. There was no report of anyone injured or in need of assistance. Despite that there was no evidence of a crime, law enforcement thought that the situation was suspicious with a shed fire, a dog in the truck and a rifle on the ground. Law enforcement used keys found in the truck to enter my client’s house.

Law enforcement entered my client’s home without obtaining a search warrant claiming that they thought there was a possibility that someone might be hurt or injured inside the house. Since when does the possibility that a person might be injured justify law enforcement entering a person’s locked house without a warrant? Since when can law enforcement enter out homes without a search warrant when they are not investigating criminal activity? This is exactly the issue I argued at the Court of Appeals.

The community caretaker exception arguably allows law enforcement to enter a person’s home when there is no evidence of a crime; however, in order for the community caretaker exception to apply, law enforcement must reasonably believe an emergency exists. In this instance, there was no emergency. Law enforcement never articulated what was the emergency that justified entry into the house. Law enforcement were on the property for nearly an hourly before attempting to enter the house which seems like an unreasonably long time to wait before entering a house if there is truly an emergency requiring immediate action. The evidence itself, or more importantly, the lack of evidence, suggests that there was no an emergency. The officer’s belief that an emergency existed was unreasonable. What if my client simply left the house to go to the grocery store or to dinner?

 

The Court of Appeals does not issue immediate rulings. I will be waiting to learn the outcome. But, the continuing expansion of the community caretaker exception to the warrant requirement should be a concern to all of us who value our liberty interests to be free from governmental intrusion into our lives and home.

 

Scott Hamblin is a lawyer and shareholder in the law firm of Brydon Swearengen & England P.C. Scott regularly practices in the area of criminal law and family law. For more information regarding your rights, please contact Scott at www.brydonlaw.com or www.scotthamblinlaw.com, or you mail email Scott at scotthamblin@brydonlaw.com.

 

 

As we celebrate Independence Day, commonly known as the Fourth of July commemorating the adoption of the Declaration of Independence on July 4, 1776 from Great Britain, I want to take a moment to reflect on some of the laws, one in particular, which continues to exist and evolve. It wasn’t until 1791that the first ten (10) Amendments to the United States Constitution were adopted. The Fifth Amendment to the United States Constitution has significant meaning for criminal lawyers, judges and anyone involved in the criminal justice system. Over the years, the Fifth Amendment has been interpreting by several courts, including the United States Supreme Court, to afford individuals certain rights when confronted and questioned by the cops. In short, the Fifth Amendment provides protection from self-incrimination. As such, despite what the cops may tell you, you don’t have to speak with them. And if you ask for a lawyer, then cops don’t get to ask you more questions unless you keep on talking to them. You don’t’ have to speak with an officer without a lawyer present. You have a right to speak with a criminal attorney or criminal lawyer, or any lawyer for that matter before making any statements to any law enforcement officer. But, you have to be brave and stand up for yourself. You have to tell the officer that you are not speaking to him or her without your lawyer.

 

One of the classic mistakes that people make is agreeing to speak with a cop, a FBI agent, a DEA agent, or any law enforcement agent when they show up to your home or place of employment and state that they want to speak with you. An officer arriving at your place of employment or home is generally the first clue that you need a criminal attorney or criminal lawyer. Surprisingly, many people will talk to these officers without an attorney or without requesting a criminal lawyer or criminal attorney. The United States Supreme Court in its decision in the case of Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), held that once a defendant invokes his Fifth Amendment right to counsel (meaning the need or right to speak with a lawyer) that the police must cease their custodial interrogation. Court decisions continue to turn on the meaning of custodial or custody rather than the questioning. In other words, when is a person considered to be in custody? Custody has generally been associated with a formal arrest or the deprivation of freedom of movement associated with a formal arrest. But, the court cases have not limited the definition of custody to simply being placed in handcuffs or taken to a police department. Custody has been found where law enforcement have questioned people in their own homes. The test for determining custody is now multifaceted. However, the Fifth Amendment affords protection to individuals who assert their right to speak with a lawyer, even without an officer advising a person of the Miranda warnings. The key is for the person to assert their right to a lawyer. And the assertion must be clear and not ambiguous. In other words, a question such as “do I need a lawyer” has been held to be ambiguous and not a clear assertion that the person wanted to speak with a criminal lawyer. In short, insist on speaking with a lawyer before making any statements to cops. Your lawyer will thank you for being brave.

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Scott Hamblin

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573.821.4013

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