In February of 2016, Pennsylvania Governor Tom Wolf signed in to law Pennsylvania Senate Bill 166, broadening Pennsylvania Expungement Law. The new expungement law creates 9122.1. The new Pennsylvania Expungement Law creates a new class of expungements. Most misdemeanors of the second and third degree are now expungeable. The law will take effect in October 2016.
The new Pennsylvania expungement law allows for the expungement of convictions for misdemeanors of the 2nd or 3rd degree (often notated as M2 or M3), after ten years have passed and the person is conviction free. The crime cannot be punishable by more then two years maximum.
Many exceptions to the rule exist. If any apply, you are not eligible for the new class of expungement.
- Four or more convictions punishable for one or more years.
- Simple Assault M2
- Sexual Intercourse with Animals 3129
- Impersonating a Public Servant 4912
- Intimidation of a witness 4952
- Retaliation 4953
- Retaliation, Intimidation, Obstruction in regard to child abuse investigation 4958
- Any crime involving sex offender registration under 42 Pa.C.S. Ch. 97
The main difference between the new class of expungement and the legacy expungement is the way the records are reported and maintained. When an expungement is granted under the original 9122, an Order accompanies expungement for all authorities to destroy the records, including but not limited to the photos, finger prints, the state police records, the CPCMS records, and all county records.
Under new Pennsylvania expungement law, 9122.1, law enforcement is required to maintain a record of the conviction, but is no longer allowed to disseminate the records to anyone outside of law enforcement. The Order from the Common Pleas Court Judge will now be called “Limited Access.” This means the Pennsylvania State Police may maintain the record, but may not disseminate the record to an individual, a noncriminal justice agency or an internet website.
The “Limited Access” Order, makes the new expungement similar to other states’ sealing a conviction. While the title of the new law is still an expungement, the actual effect is to seal the record.
Clearly, the new expungement will NOT allow anyone to have their gun rights restored. The new expungement will not prevent a district attorney from arguing about the old conviction in a new conviction at future sentencing. As to question of professional licensure, the agency issuing the license will tell us whether they will accept the new form of expungement.
An open question remains as to the role of the new expungement in pardon process. When the expungement law changed years ago to allow for the expungement of summary convictions, the Pennsylvania Board of Pardons stopped considering summary convictions for pardons and would no longer except applications. Under the new expungement law, the operation of the “Limited Access” Order and the pardon process are unclear. I will follow up with another article or comment regarding the new expungement and the pardon process in Pennsylvania at a later date.