Administrative Expungements of Criminal Records
Mistaken Arrests Can Be Expunged
Information provided by Eric J. Dirga, P.A., Orlando - Statewide Service
Last Updated: August 21, 2016
The Administrative Expungement
The administrative expungement process is less formal and less structured than a regular expungement. Because of this, administrative expungements are harder to predict and execute. Moreover, the Administrative Expungement only applies to non-judicial records after an arrest. An arrest must have occurred (this cannot reach investigative records absent an arrest) and that most often means that judicial records were created (which would remain unaffected). A separate process to seal the judicial records would have to be successfully brought to the Court for the full benefit to occur.
In order to expunge an arrest administratively the arresting agency has to agree that the arrest was made "by mistake" or "contrary to law." Despite protections found within the law, experience indicates that few if any law enforcement agency ever wants to admit a mistaken arrest or an arrest made contrary to the law. Regardless, an endorsement admitting the arrest was a mistake or contrary to law from the arresting agency must accompany all applications for this relief.
The application requires that the arresting agency or a final order of the court determine that the arrest was made by mistake or contrary to law. If the charges were No Billed or Nolle Prosequi by the Office of the State Attorney [SAO] then this determination falls solely onto the arresting agency (although there is some language that would suggest the SAO could make this determination). This determination would be part of the endorsement from the arresting agency.
The Mistaken Arrest
Administrative expungements address arrests that were made due to mistake or error. The definition of what a mistake or error is in this context has not been defined. However, we can assume they involve:
- Right-name, wrong-person arrest warrants.
- Arrests based on factual mis-identification.
- Arrests based on false reports.
Criminal records caused by mistaken arrests can be expunged (Authority: § 943.0581, Fla. Stat.). An administrative expungement deals strictly with arrests that were made due to mistake or contrary to law by the arresting agency. It is not because the State could not prove the charges. The fact that the arrest resulted in one of the following is not sufficient
- Arrests that resulted in the charges being No Billed.
- Arrests for charges that are dropped.
- Arrests for charges that were amended.
- Arrests for charges that are overturned on appeal.
Those above-listed consequences alone are not sufficient to utilize the administrative expungement process. More information is required. One example that may be a good candidate for this when a person is arrested for DUI and submits a breath sample into an intoxylizer and the results are zero (.000).
Administrative Expungements Are More Involved Than Regular Expungements
Administrative Expungements are not limited in number or by duration of time since arrest. However, administrative expungements are complicated and can take more time to complete than most people expect. They can also be unsuccessful. Because each case is a subjective undertaking, there is no defined time limits on how long an application for an administrative expunction can take.
The ideal candidate for this process is someone that needs something off their record, does not qualify for a regular expungement and/or has already used their one regular expungement or sealing, and has the time, patience, and resources to see this through.
The purpose of publishing this information is to help judges, attorneys and non-lawyers better understand this area of law. We appreciate any input that may further this goal.
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