Today, Ohio Senate Bill 288 (“SB288”) goes into effect. It cleans up Ohio’s sealing law, which has been a little confusing over the years. Instead of requiring a two part-analysis of: 1) eligible offender; and 2) eligible offense, SB288 removes the eligible offender prong and instead, considers only the type of offense the offender is seeking to seal. In other words, the law no longer asks whether the person is eligible to seal a particular offense based on their overall criminal record of convictions; instead, it looks to only the offense the person is seeking to seal. This is huge for defendants because under the old law, offenders could not seal eligible offenses (i.e., sealable offenses) from their record if they had too many convictions on their record. Thus, like recent trends with the Ohio legislature, SB288 overall expands sealing rights for offenders. A notable exception, discussed here, is SB288’s new prohibition to seal all domestic violence convictions—even the fourth degree misdemeanor variation. However, SB288 is overall a win for offenders seeking to seal their criminal convictions.
What is Prohibited from Being Sealed Under SB288?
The list in this blog is not intended to be an exhaustive list; the new sealing law’s sealing exceptions can be accessed here. However, it is important to understand there are five main categories of offenses that cannot be sealed. This includes: 1) any case number involving a felony conviction of the first or second degree, or involving more than two third degree felony convictions; 2) traffic convictions; 3) any felony offenses of violence as defined in R.C. 2901.01 that are not sexually-oriented offenses; 4) any conviction involving a victim under the age of 13 (except non-support convictions); 5) any sexually-oriented offense where the offender was required to register as a sexually-oriented offender and is still subject to registration requirements. Interestingly, even though a violation of a protection order is not an offense of violence, it is no longer a sealable offense (even as a misdemeanor).
When Can I Seal My Eligible Offense?
Offenders must wait six months after the date all fines and costs were paid to seal their minor misdemeanor conviction. Offenders must wait one year after final discharge to file their application to seal any eligible misdemeanor or any eligible 4th or 5th degree felony conviction, and three years after final discharge of a third degree felony conviction.
Do I Have a Good Chance Sealing my Conviction?
While it is true SB288 greatly expands sealing rights to offenders, it does not guarantee the sealing of one’s criminal record. The court must still consider whether the offender is worthy and whether the circumstances would warrant sealing. When an offer requests the court seal a criminal record, the court must still consider whether the offender has pending charges or is currently on probation, whether the offender has been rehabilitated to the court’s satisfaction, whether the prosecutor or victim has any objection to the sealing, and whether the offender’s interest in having their record sealed outweighs any legitimate needs of the government in maintaining the record of conviction.
Expungements are different from sealings. Expungements mean the court utterly destroys the record of conviction, whereas sealing the record entails the government setting aside the convictions as to shield them from public access. Until now, expungements have been available for only juveniles. However, with SB288, expungements are possible, but only for certain convictions related to firearms as outlined here. The expungeable offenses under this statute are only for certain variations of the improperly handling firearms in a motor vehicle and carrying concealed weapons offenses. Other newly expunageable offenses include convictions for solicitating, loitering, and prosecution but only when the offender was a victim of human trafficking. That statute is accessible here. Lastly, low-level controlled substance offenses can be expunged. The law (accessible here) defines low-level offenses as fourth degree misdemeanor or minor misdemeanor offenses. Unfortunately, only the prosecutor can initiate the expungement process for these types of convictions.
Further, waiting periods for misdemeanor expungements are identical to the waiting periods for sealing (six months for minor misdemeanors and one year for fourth degree misdemeanors). However, for felonies, the waiting period for expungements are 10 years after the offender became eligible to seal his or her felony conviction.
Even though SB288 now prevents a fourth-degree misdemeanor domestic violence and a misdemeanor violation of a protection order conviction from being sealed, it now creates more sealing opportunities for offenders were considered ineligible offenders under the old law. Overall, SB288 is a very positive change for offenders seeking to seal their record as it creates a more straightforward analysis of sealing eligibility, expands sealing opportunities for offenders, and gives some offenders—although very few—the opportunity for expungement.
If you or someone you know would like to speak with an experienced criminal defense attorney, please contact Rittgers Rittgers & Nakajima at 513-496-0134 for your free consultation today.