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Expunging a Criminal Record in Florida Does Not Necessarily Eliminate All Records, Such as DNA Records

Florida law allows a person to seal or expunge a criminal case under certain, limited circumstances. This is a great option for people who are eligible as a criminal record of any kind can be a serious detriment to future job prospects. For an expunction, a person is eligible if the case the person wants to expunge was either dropped, never filed or resulted in a verdict of not guilty and that person has never been convicted of a crime before and has never had a case sealed or expunged in Florida before. For a sealing, the same rules apply except the person is still eligible to get a criminal case sealed even if he/she pled guilty or no contest as long as the judge withheld adjudication on each count. Also, certain, more serious crimes are not eligible to be sealed. If anyone has a prior criminal case on his/her record and thinks he/she might be eligible to have it sealed or expunged, it is almost always worth looking into as it is generally much better to go into a job search with no criminal record or less of a criminal record. Shorstein, Lasnetski & Gihon will discuss the matter with you and look into your background to see if you are eligible for a sealing or expunction.

While a sealing or expunction in Florida is a great way to eliminate or conceal a prior criminal case from employers running the standard record search, neither process completely eliminates all records from everyone. If the person who had his/her record sealed or expunged gets arrested again, the prosecutor will see the prior case(s), and the judge will know about the prior case for bond and sentencing purposes, if applicable. Also, it is unclear that a sealing or expunction of a criminal case eliminates the state’s ability to get certain records from the prior case, such as DNA.

In a recent murder case near Jacksonville, Florida, a woman was sexually assaulted and murdered by a suspect who fled the scene. The police found an item at the scene with what they suspected was the offender’s DNA. The police ran the DNA found at the crime scene through their system and found a likely match with the defendant. After obtaining other evidence, the defendant was arrested and charged. The criminal defense lawyer filed a motion to suppress the DNA evidence because the police matched the crime scene DNA with the defendant’s DNA that was obtained as a result of a prior case that had been expunged. The criminal defense attorney argued that the state illegally obtained the defendant’s DNA because the prior expunction order required the FDLE to expunge all of its records relating to the case, including the DNA.

The court rejected the criminal defense lawyer’s argument and ruled that the state’s recovery of the defendant’s DNA from an expunged case was valid. Sometimes, you read legal opinions on real serious cases and it looks like the appellate court is going to do whatever it needs to do to affirm the conviction because they do not want to let a very dangerous person go free. People are only human. That sounds like what they did here. The appellate court didn’t even rule on whether or not the FDLE must expunge and get rid of DNA records from a case that has been ordered expunged. It seems like that would be a key issue in this case. Instead, the appellate court ruled that the state obtaining the DNA records that the FDLE did maintain was not a search or seizure. It was obtained pursuant to a Florida statute. As a result, a motion to suppress pursuant to the Fourth Amendment is not applicable.

Society is better off that this person, who had a history of sexual assaults and managed to avoid accountability for his previous conduct, did not get out of prison, but the court did not rule on the prevailing issue about the effect of expunctions on these records, so that question remains unanswered.

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