Jason J. Sawyer, Attorney and Counselor at Law
State of Vermont Criminal Expungement and Sealings
Why Is Expungement Important?
A fundamental principle of the American criminal justice system is that once an individual has paid their debt to society, they deserve a fresh start. Expungement and sealing give effect to this principle.
Expungement is part of a growing social justice movement within the United States. As more and more evidence points to systemic inequality within our criminal justice system, public opinion is shifting, prompting sentencing reform and a focus on education and substance abuse treatment over pure punishment. Ban the Box and Black Lives Matter are part of this broader social justice movement. Because a criminal conviction can significantly hinder the quality of a person’s life, expungement and sealing serve as a means to provide a fresh start without the stigma or opprobrium of a criminal charge or criminal conviction. See here for the Ban the Box movement and campaign which seeks to remove inquiries about past criminal convictions. Vermont has responded to these movements by enacting legislation that permits expungement or sealing of certain crimes, and generally for automatic expungement of crimes dismissed with prejudice.
What Are the Consequences of A Criminal Conviction?
In the United States and in the State of Vermont, a criminal record can have serious negative consequences. The collateral consequences of a criminal record for even minor crimes can hinder or prevent housing opportunities, employment opportunities, educational opportunities, professional licensing opportunities, and foreclose military service. A criminal record can also prevent a person from obtaining federal and state benefits, or exercising the privilege of voting or serving on a jury. Additionally, a criminal record can prevent a person from exercising their 2nd Amendment right to possess a firearm. See here for Vermont Statues 13 V.S.A. § 8001 through § 8017 for a list of the collateral consequences of a criminal conviction.
What Are the Remedies for Past Criminal Convictions or Criminal Charges?
Fortunately, the State of Vermont offers methods to completely erase (i.e., expunge) criminal convictions through the expungement process, or to seal past criminal convictions through the sealing process. See Vermont Statutes 13 V.S.A. § 7601 through § 7610 here. For the sealing of criminal records for crimes committed before the age of 21 years, see 33 V.S.A. § 5119(g) here.
Recently, the legislature has expanded the list of crimes that qualify for statutory expungement, and legislators have plans to expand the list of qualifying crimes. The list of proposed crimes that would be added to the Vermont expungement statute includes a number of misdemeanors as well as 14 non-violent felony charges. See here for news reporting of this proposed legislation. Additionally, Governor Scott recently signed s.234 into law which calls for the automatic expungement of thousands of convictions related to possession of marijuana.
What Is the Difference Between a Criminal Expungement and A Criminal Sealing?
According to the Vermont expungement statute, 13 V.S.A. § 7601 et. seq., an expungement completely removes or eliminates the criminal offense from a person’s criminal record, such that the individual shall be treated as if they were never arrested, convicted, or sentenced. Upon inquiry on any form about a previous criminal conviction or charge, the Clerk of Court shall state: “No criminal record exits” as it pertains to the expunged charge or conviction. See here for 13 V.S.A. § 7606 for the effect of expungement in the State of Vermont.
The effect of a criminal sealing is similar to an expungement. According to the Vermont’s criminal sealing statute, a sealing shall completely eradicate the criminal offense, such that the individual shall be treated as if they were never arrested, convicted, or sentenced. Upon inquiry on any form about a previous criminal conviction, the Clerk of Court shall state: “No criminal record exits” as it pertains to the sealed charge or conviction. See here for 13 V.S.A. § 7607 for the effect of sealing in the State of Vermont.
There are a couple of differences between a sealing and an expungement. Whereas an expungement permanently removes the record, a sealing may still be visible to law enforcement, and can sometimes be “unsealed” and utilized as a predicate offense to charge a person with a more serious offense. An example is if a person has a prior DUI conviction that was sealed, and if the person is charged again with a subsequent DUI, the state can petition to “unseal” the prior sealed conviction in order to charge the person with DUI, second offense, which carries a mandatory minimum and greater penalties than a first offense. In sum, there are some circumstances by which a sealed offense may be “revived” or unsealed, but in practice these circumstances are rare.
Are State or Federal Crimes Covered?
Federal offenses are not covered in the Vermont expungement statute because the federal government is a separate sovereign, and the State of Vermont does not have the authority to expunge or seal a federal crime.
I Have a Past DUI Conviction, Is It Expungable or Sealable?
Your prior DUI conviction may be sealable if you have only one conviction for DUI, and you have not been convicted of a crime arising out of a new incident or occurrence since you were convicted of a DUI, ten years have passed since your conviction or discharge from probation, whichever is later, and any restitution ordered by the court has been paid in full. The court must find that sealing of the criminal history record serves the interests of justice.
If you have a question about expunging or sealing a past criminal conviction, please feel free to give me a call.