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What type of convictions cannot be expunged from my record?
The following are convictions that cannot be expunged:
- Convictions when the offender is subject to a mandatory prison term;
- Convictions under section 2907.02, 2907.03, 2907.04, 2907.05, 2907.06, 2907.321 [2907.32.1], 2907.322 [2907.32.2], or 2907.323 [2907.32.3], former section 2907.12 (Chapter 2907. deals with three main categories of crimes: sexual assaults and displays; prostitution offenses; and offenses related to the dissemination of obscenity and matter harmful to juveniles), or Chapter 4507. (Driver's License Law), 4511. (Operation of a Motor Vehicle), or 4549. (Motor Vehicle Crimes) of the Revised Code, or a conviction for a violation of a municipal ordinance that is substantially similar to any section contained in any of those chapters;
- Convictions of an offense of violence when the offense is a misdemeanor of the first degree or a felony and when the offense is not a violation of section 2917.03 (Riot) of the Revised Code and is not a violation of section 2903.13 (Assault to an unborn child), 2917.01 (Inciting violence) or 2917.31 (Inducing panic) of the Revised Code that is a misdemeanor of the first degree;
- Convictions of an offense in circumstances in which the victim of the offense was under eighteen years of age when the offense is a misdemeanor of the first degree or a felony;
- Convictions of a felony of the first or second degree;
- Bail forfeitures in a traffic case as defined in Traffic Rule 2.
Continued in our Guide to Ohio Expungements
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If you file an application for expungement with a Court in Ohio, the Court cannot simply deny the application without going through a specific process. The court must take each of the following steps when considering an application for expungement:
(1) determine whether the applicant is a first offender;
(2) determine whether there are no other criminal proceedings pending against the applicant;
(3) determine whether the applicant has been rehabilitated to the satisfaction of the court;
(4) if the prosecutor has filed an objection to the application, determine whether the prosecutor's objection is well-taken; and
(5) weigh the interests of the applicant in having the conviction records sealed against the legitimate needs, if any, of the government in maintaining those records."
The cases so holding are Ohio's Tenth District Court of Appeals in the case of State v. Brewer, 2006 Ohio App. LEXIS 6955 (December 29, 2006) Franklin App. No.06AP-464; and Ohio's Eighth District Court of Appeals in the case of State v. Gabe, 2007 Ohio App. LEXIS 5543 (November 29, 2007) Cuyahoga App. No. 89258. These cases apply Ohio Revised Code Section 2953.32(C) (1).
for more information see are guide to expungements
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In a recent case, the Trial Court got frustrated with an applicant because he forgot to list that he had lived in New York on his application for expungement (there was a person in New York of the same name who might have been the same guy who had previously been convicted of a crime there). Under Ohio law, you must be "first offender" in order to get a statutory expungement.
R.C. 2953.32(A)(1) provides, in part, that "a first offender may apply to the sentencing court if convicted in this state, or to a court of common pleas if convicted in another state or in a federal court, for the sealing of the conviction record."
R.C. 2953.32(B) provides that:
"[u]pon the filing of an application under this section, the court shall set a date for a hearing and shall notify the prosecutor for the case of the hearing on the application. The prosecutor may object to the granting of the application by filing an objection with the court prior to the date set for the hearing. The prosecutor shall specify in the objection the reasons for believing a denial of the application is justified. The court shall direct its regular probation officer, a state probation officer, or the department of probation of the county in which the applicant resides to make inquiries and written reports as the court requires concerning the applicant."
Ohio's Ninth District Court of Appeals has construed this section to mean that "[t]he court may not dispose of the application without holding a hearing because the language of the statute is mandatory, not permissive." State v. Mallardi (Apr. 26, 2000), 9th Dist. No. 19842, 2000 Ohio App. LEXIS 1791 at *1, citing State v. Cuttiford (Feb. 11, 1998), 9th Dist. No. 97CA006724, 1998 Ohio App. LEXIS 695, at *3.
Therefore, under R.C. 2953.32(B), the trial court was required to hold a hearing and taking into account any objections from the State and the report from the probation department, determine, among other things, whether Smith was a first offender. The Court of Appeals noted that the State did not file objections and the assistant prosecutor was not present on the scheduled hearing date. It is only after a hearing that the court could make a determination that Smith was not a first offender.
continue with story
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