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ARKANSAS LAW ON

EXPUNGEMENTS, SEALING
AND SEQUESTRATION OF
CRIMINAL RECORDS
(2009, Second Edition)
By: J. Brent Standridge, Attorney-at-Law
©2008, 2009 by J. Brent Standridge

THE LAW OFFICES OF J. BRENT STANDRIDGE, P.A.


111 WEST SOUTH STREET
P.O. BOX 494
BENTON, AR 72018
(501) 315-LAW2 (5292)
FAX: (501) 778-8855
e-mail: standridgelaw@yahoo.com
URL: www.brentstandridge.com

TABLE OF CONTENTS

Expungement Overview…………………………………………………………………...3

Uniform Expungement Act………………………………………………………………..3


First Offender Act………………………………………………………………………....4

Community Punishment/Corrections Act…………………………………………………5

Arkansas Criminal Code Clean Slate Provision…………………………………………..5

Juvenile Code Expungement………………………………………………………………6

Arkansas Controlled Substances Act Expungement Provision…………………………...7

Arkansas Drug Court Act Expungement Provision.............................................................7

Misdemeanor Traffic Cases Postponement of Judgment Provision………………………8

Miscellaneous Expungement Act Provisions……………………………………………...8

Expungement Exclusions for Certain Offenders……………………………………….....9

Significant Expungement Cases…………………………………………………………10

Practice Pointers and Conclusion………………………………………………………...11

1. EXPUNGEMENT OVERVIEW

The purpose of this outline is to provide an overview of Arkansas law concerning


expungement, sealing, and sequestration of criminal records. Both the procedural and
substantive aspects of expungements will be discussed. Generally speaking when a
criminal record is expunged, it is segregated from the general public and housed in such a

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manner where only certain entities will have access to the record. Ark. Code Ann. §16-
90-901 notes that expunge does not normally entail the physical destruction of the
criminal record. An expungement restores certain civil rights to the offender.
Administrative Order No. 19 of the Supreme Court of Arkansas addresses many
aspects of court records and contains definitions of terms relevant to this outline.
The order provides that the term “sealed” means “that the contents of a court
record may not be disclosed unless otherwise permitted by this order, or by law. When
and to the extent provided by this order or by law, ‘sealed’ shall mean also that the
existence of a court record may not be disclosed.”
The order provides that the term “expunged” means “that the record or records in
question shall be sequestered, sealed, and treated as confidential, and neither the contents,
nor the existence of, the court record may be disclosed unless otherwise permitted by this
order, or by law. Unless otherwise provided by this order or by law, ‘expunged’ shall not
mean the physical destruction of any records.”
The order provides that “confidential” means “that the contents of a court record
may not be disclosed unless otherwise permitted by this order, or by law. When and to
the extent provided by this order or by law, ‘confidential’ shall mean also that the
existence of a court record may not be disclosed.”

2. THE UNIFORM EXPUNGEMENT ACT—Ark. Code Ann. §§16-90-901—16-90


906—(Act 998 of 1995, as amended)

a. 16-90-901—Definition of expungement. Defines expungement as a process


where criminal records are sealed, sequestered, and kept confidential but does not
include the actual physical destruction of records for most criminal records
(juvenile records are the notable exception). See Jones v. Huckabee, 369 Ark. 42,
250 S.W.3d 241 (2007).
b. Sex offenses involving minor victim ineligible. Excludes sex offenses where the
victim is under eighteen (18) and includes catchall exclusion for enactment of
subsequent laws prohibiting sexual conduct with a child. There are other statutory
exclusions as well.
c. 16-90-902—The legal effect of an expungement. Once the record is expunged
the offender can lawfully state the offense did not happen and the result is that all
civil rights are restored except as is otherwise specifically provided for by law.
16-90-903—Restricted access to expunged records. Once the records are
expunged access to such records is restricted to certain entities as is provided for
in the statute and others may be authorized by court order to access such records
under Administrative Order No. 19.
d. 16-90-904—The procedure for sealing and sequestration of criminal records.
The individual seeking expungement files a uniform petition in the court of
conviction, serves the arresting agency and the prosecuting attorney, and after 30
days the convicting court may hold a hearing or enter the uniform order to seal.
e. 16-90-905—The uniform petition and order to seal. Establishes the mandatory
use of the uniform petition and order to seal which appear on the ACIC website.
f. 16-90-906—Act 738 of 1997—Expungements where charges dismissed.
Section added after Act 998 of 1995 which makes clear that where the offender’s
case does not end in an adjudication of guilt (nol pros, dismissal, acquittal, etc.)

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the same procedure is to be utilized to seal and sequester court and arrest records
concerning the offense. Evidently applies to ALL offenses.
h. Procedural provision. These provisions are primarily procedural ones: they do
not create a substantive right of expungement. L.H. v. State, 333 Ark. 613, 973
S.W.2d 477 (1998).

3. THE FIRST OFFENDER ACT—Ark. Code Ann. §§16-93-301—16-93-303 (Act


346 of 1975, as amended)

a. 16-93-301(a)(1)—One use restriction. These provisions can only be used once.


b. 16-93-303—Inapplicable to bench or jury trials. To get the benefits of these
provisions the offender must plead guilty or nolo contendere. If the defendant is
tried then these provisions do not apply. See State v. Webb, 373 Ark. 65, 281
S.W.3d 283 (2008); Baker v. State, 310 Ark. 485, 837 S.W.2d 471 (1992).
c. 16-93-303—probationary period and fine authorized. The court is to defer
judgment, place the person on probation for a period not less than one (1) year,
and may impose a fine, which can be up to $3,500.00, without constituting a
conviction as per Act 744 of 2007.
d. Ineligible offenders—Sex offenses with minor victim. These provisions are
unavailable to those committing sex offenses in which the victim was under the
age of eighteen. There are other offenders who are disqualified as well under
other specific statutes such as misdemeanor DWI and underage DUI.
e. Violations of probation—If the offender violates the conditions of probation the
court can enter a judgment of conviction and proceed as would otherwise be the
case.
f. Compliance—Discharge and dismissal without adjudication of guilt. If the
offender complies with probation he SHALL receive a discharge without
adjudication of guilt and is to receive an expungement as per the provisions of the
Uniform Expungement Act.
g. Restrictions on offender during probationary period. The offender will be
treated as having a conviction for purposes of the felon in possession of firearm
statute, habitual offender, criminal history scores and sentencing, and
impeachment under A.R.E. Rule 609.
h. Certain restrictions removed upon expungement. Upon expungement the
offender is not considered as having a felony conviction except for purposes of
habitual offender, criminal history scores and sentencing, impeachment under
A.R.E. Rule 609 (note potential separation of powers conflict between the statute
and court rule), and the felon in possession of firearm statute.
i. 16-93-304—Duties of circuit and district court judges. Imposes a duty upon
circuit and district court judges concerning utilization of the First Offender Act
with the goal to ensure that the offender will only get to utilize the Act one time.

4. COMMUNITY CORRECTIONS/PUNISHMENT ACT—Ark. Code Ann. §§16


93-1201—16-93-1210—(Act 531 of 1993, as amended)

a. 16-93-1202(10)(A)(i)—Non-violent, non-sexual offenders eligible for target


group. To be eligible for a disposition under this Act, the person must have

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committed a non-violent, non-sexual offense. Felony DWI offenders also qualify.
The person must be a member of the “target group” as defined by the statute.
b. 16-93-1202(10)(A)(iv)--Midemeanants included. Offenders committing
misdemeanors are eligible for a disposition under the Act (except those
committing sexual offenses for which the person must register as a sex offender).
Misdemeanor DWI offenders are excluded as per the text of the statute and other
offenders may be excluded by statute. Issue whether misdemeanants who commit
sexual offense for which they do have to register as a sex offender would qualify
(presumably so) and whether misdemeanants who commit violent offenses would
qualify (probably so—the author’s view has changed regarding this issue).
c. 16-93-1206(b)—Sentencing alternatives. Includes various options and if a
probation or suspension is authorized and the conditions are violated the Court
may proceed with a revocation as is normally the case.
d. 16-93-1207(b)(1)—Order of court upon successful completion. If the offender
successfully completes his sentence, the trial court MAY order expungement of
record.
e. 16-93-1207(b)(1)—Eligibility and restrictions. The offender must have had not
more than one (1) previous felony and the conviction had to be for something
other than certain class Y felonies or delivering a controlled substance to a minor.
Expunged convictions are still counted for this purpose.

5. ARKANSAS CRIMINAL CODE “CLEAN SLATE” PROVISION—Ark. Code


Ann. §5-4-311—(Act 280 of 1975, as amended)

a. 5-4-311—Discharge and dismissal. Provides that if no judgment of conviction


was entered by the Court at the time of suspension or probation and offender has
fully complied, Court SHALL discharge and dismiss proceedings. Sealing and
sequestration of record is to be done pursuant to the Uniform Expungement Act.
Statute provides that such dismissals may still be counted toward habitual
offender status.
b. 5-4-311—Ineligible offenders and exclusions. This procedure is unavailable for
those convicted of a sexual offense where the victim was under eighteen (18)
years of age; consistent with the Uniform Expungement Act exclusion, too.
c. Requirement of no judgment of conviction. For this procedure to apply, note
that there must have been no judgment of conviction entered in the first place.
Ark. Code Ann. §5-4-301(d)(1) provides that a judgment of conviction is to
entered when a fine or incarceration is imposed.

d. Issue whether judgment of conviction must be entered when fine of up to


$3,500.00 is imposed. Under Act 744 of 2007 a judgment of conviction need not
be entered where a fine of up to $3,500.00 is imposed but question whether this
provision applies only to dispositions under the First Offender Act vs. the
Arkansas Criminal Code Clean Slate provision.
e. No limitation as to number of times provision can be used. As opposed to
some other expungement statutes (such as the First Offender Act), note that there
is no limitation as to the number of times an offender may utilize the Clean Slate
provision under the Arkansas Criminal Code.

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6. ARKANSAS JUVENILE CODE EXPUNGEMENTS--Ark. Code Ann. §9-27-
309

a. 9-27-309(b)(1)(A)--Ten (10) year provision. Records of delinquency


adjudications for which a juvenile could have been tried as an adult shall be kept
for ten (10) years after the last adjudication of delinquency or the date of a plea of
guilty or nolo contendere or a finding of guilt as an adult; thereafter, they MAY
be expunged.
b. 9-27-309(b)(2)--Other general juvenile records. The court MAY expunge other
juvenile records at any time and SHALL expunge all the records of a juvenile
upon his/her twenty-first birthday, in other types of delinquency, dependency-
neglect, or families in need of services cases.
c. 9-27-309(b)(3)--Destruction of juvenile records. Within the Juvenile Code,
expunge means the actual physical destruction of the record.
d. 9-27-309(c)--Extended juvenile jurisdiction. Records of juveniles who are
designated as extended juvenile jurisdiction offenders SHALL be kept for ten (10)
years after the last adjudication of delinquency, date of plea of guilty or nolo
contendere, or finding of guilt as an adult, or until the juvenile's twenty-first
birthday, whichever is longer. Issue whether extended juvenile jurisdiction
records are subject to expungement.
e. Juvenile Code expungement provisions are controlling over more general
expungement statutes. It has been held that at least with respect to time
limitations for which a juvenile may seek an expungement, the substantive
provisions of the Juvenile Code are controlling over the more general
expungement statutes such as the Uniform Expungement Act. L.H. v. State, 333
Ark. 613, 973 S.W.2d 477 (1998).

7. ARKANSAS CONTROLLED SUBSTANCES ACT DISCHARGE AND


DISMISSAL PROVISION--Ark. Code Ann. §5-64-413--(Act 1994 of 2005)

a. First Time Drug Possession Offenders Eligible. Provides that first time drug
possession offenders (except Schedule I possessors) are eligible. Drug delivery
offenders are ineligible. See Shelton v. State, 44 Ark. App. 156, 870 S.W.2d 398
(1994).
b. Deferment analogous to First Offender Act. Where person pleads guilty OR is
found guilty, the court MAY without entering a judgment of guilt and with
consent of the offender defer further proceedings and place him/her on probation
for a period of not less than one (1) year with conditions.
c. Violations and revocation of probation. If the conditions of probation are
violated the court may proceed as would normally be the case including
revocation of probation and entry of an adjudication of guilt.
d. Discharge and dismissal upon compliance. Upon fulfillment of the terms and
conditions the Court SHALL discharge the offender and dismiss the proceedings
against him/her.
e. One (1) time utilization of provision. There may be only one (1) discharge and
dismissal under this statute with respect to any person.

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f. Effect of discharge and dismissal. Not a conviction for purposes of §5-64-413
OR for purposes of disqualification or disabilities imposed by law upon
conviction of a crime including additional penalties imposed for second or
subsequent conviction under Ark. Code Ann. §5-64-408 (enhanced sentences for
second or subsequent drug offenders).
g. Expungement pursuant to Uniform Expungement Act. It is provided for that
upon successful completion of the probation the person may apply for sealing and
sequestration of record pursuant to the Uniform Expungement Act.

8. ARKANSAS DRUG COURT ACT EXPUNGEMENTS--Ark. Code. Ann. §16-


98-303(g)(as amended by Act 1491 of 2009)

a. Two Classes of Eligible Offenders. Note the 2 classes of individuals who


qualify for expungement: (1) those individuals undergoing a current drug
court program as the Court currently supervising them can order an expungement
of the offenses for which they have pleaded guilty to in that particular court; and (2)
those individuals who, in addition to the above, have convictions in other
jurisdictions.
b. Criteria for current drug court offenders who either do not have prior
convictions for which they are seeking expungement or are not seeking
expungement for their prior convictions. (1) successfully completed the
program; (2) received aftercare programming; (3) prosecutor recommends
expungement; (4) drug court believes expungement is appropriate.
c. Criteria for current drug court offenders who are seeking expungement
for their prior convictions which occurred in another jurisdiction. (1)
person must fall within a target group as defined in Ark. Code Ann. §16-93-
1202(10)(A)(i) and be convicted in another court; (2) drug court judge must
receive concurrence of the other Arkansas court where the conviction arose;
(3) notwithstanding target group provision, those who were convicted of
residential burglary, commercial burglary, breaking or entering, or DWI, 4th and
subsequent offense are not eligible.
d. Procedure for Expungement. The procedures for expungement are those
outlined in the Uniform Expungement Act (unless otherwise ordered by the
drug court).
e. Discretionary. Note that expungement under the Drug Court Act is
discretionary.
f. Consequences as it relates to firearm possession. The expungement
restores the person's right to possess a firearm as per Ark. Code Ann. §5-73-
103(b)(2)(as amended by Act1491 of 2009).

9. MISDEMEANOR TRAFFIC CASE POSTPONEMENT OF JUDGMENT


PROVISION--Ark. Code Ann. §5-4-321--(Act 967 of 1985, as amended)

a. Eligible offenders. Must be misdemeanor traffic case, other than a case


involving driving under the influence of alcohol or a drug (something other than
DWI and arguably underage DUI).
b. Procedure. A judge MAY postpone a judgment for not more than one (1) year

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and place the offender on probation (supervised or unsupervised) and the offender
will remain in a probationary status until a judgment is entered.
c. Entry of judgment or further postponement. In certain conditions court is
authorized to quickly enter judgment or postpone judgment for more than one (1)
year.

10. MISCELLANEOUS EXPUNGEMENT PROVISIONS

a. Ark. Code Ann. §5-4-105--Expungement and sealing options. Part of Act 744
of 2007 became codified as this statute and it essentially restates all the
expungement and sealing options depending on whether there was a trial or plea,
judgment of guilt or deferral, or acquittal or dismissal.
b. Ark. Code Ann. §5-4-205(d)--No expungement until restitution paid. A
record of a defendant SHALL NOT be expunged until all court-ordered restitution
has been paid.
c. Ark. Code Ann. §§16-90-601, 602, 603, 605.
d. Ark. Code Ann. §5-73-103(b)(2)(as amended by Act 1491 of 2009). Provides
that if the person receives an expungement under the First Offender Act or Drug
Court Act the same does not qualify as a conviction for purposes of the felon in
possession of firearm statute. It arguably revives the law which existed prior to
Act 595 of 1995 to provide that an expungement restores the person's right to
possess a firearm. Issue whether it applies to expungements other than those
obtained under the First Offender or Drug Court Acts.

11. EXPUNGEMENT EXCLUSIONS FOR CERTAIN OFFENDERS

a. DWI Offenders. Note that misdemeanor DWI offenders are excluded from
eligibility for expungements. Part of the Omnibus DWI Act, Ark. Code Ann. §5-
65-108, specifically excludes DWI offenders from solely being placed on
probation under the First Offender Act. Also, under part of the Community
Punishment/Corrections Act, Ark. Code Ann. §16-93-1202(10)(A)(iv) excludes
misdemeanor DWI offenders from receiving expungement as per the Community
Punishment/Corrections Act. It may generally be said that misdemeanor DWI
offenders are ineligible for expungement. Note that felony DWI offenders who
are sentenced under the provisions of the Community Punishment/Corrections
Act are eligible to have their record expunged. Fulmer v. State, 337 Ark. 177,
987 S.W.2d 700 (1999). The holding in the Fulmer case has been incorporated
into part of the Community Punishment/Corrections Act, Ark. Code Ann. §16-93-
1202(10)(A)(i), which defines "target group" to include DWI, fourth or
subsequent offenders.
b. Underage DUI Offenders. Ark. Code Ann. §5-65-308 specifically excludes
underage DUI offenders from solely being placed on probation under the First
Offender Act, the same as is the case with misdemeanor DWI offenders and thus
they cannot have their records expunged pursuant to the First Offender Act. It is
doubtful that underage DUI offenders would qualify for expungement under any
provision although the Community Punishment/Corrections Act remains a
possibility.

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c. Sex Offenders. It has already been noted that sex offenders who were involved
with a victim under the age of eighteen (18) years are ineligible for expungement
of record under different provisions. Some sex offenders are not going to be
eligible even in cases where no minor victim is involved because it is not going to
be lawful for them to have a disposition made pursuant to an Act which authorizes
expungement upon completion of their sentence. For example, an adult convicted
of rape is not going to be able to have their record expunged because they must be
sentenced to the Arkansas Department of Correction. Do note that for purposes of
determining whether a sex offender is eligible for an expungement it must be
remembered that it is the expungement law that was in effect at the time the
offense was committed that is controlling on the issue, at least in the absence of
language of subsequent acts excluding such offenders by making clear such
subsequent acts are to be applied retroactively. For example, in the case of
McBride v. State, 99 Ark. App. 201 (2007), the Court found that a sexual offender
with minor victim who received probation under the First Offender Act was
entitled to expungement of record because the law excluding such offenders from
expungement did not become effective until after the crime and was not
retroactive.
d. Violent Offenders. Those committing violent crimes are not going to qualify for
expungement under the Community Punishment/Corrections Act because, at least
with respect to the felony offenders, they are excluded from the Act. A question
remains whether misdemeanor violent offenders qualify under the Act. They
may qualify for expungement if sentenced pursuant to other Acts (the First
Offender Act for example). Some violent felony offenders, as is the case with
some sex offenders, are not going to be eligible for expungement for they could
not be sentenced pursuant to any Act authorizing expungement upon successful
completion of their sentence. For example, offenders convicted of murder in the
first degree or aggravated robbery would never be eligible for expungement.
e. Other Offenders may be ineligible because of the offense committed or
because of their recidivist status. The offense must be studied to determine
whether it can be used in conjunction with an Act authorizing expungement and
the offender's status will have to be studied as well to determine that if he/she has
prior convictions whether the offender can be sentenced under a specific Act.

12. SIGNIFICANT EXPUNGEMENT CASES

a. Shelton v. State, 44 Ark. App. 156, 870 S.W.2d 398 (1994)--Makes clear that if an
offender, at time disposition is made, is not sentenced pursuant to an Act
authorizing expungement upon completion of sentence, trial court is without
authority to expunge the record.
b. State v. Burnett, 368 Ark. 625, 249 S.W.3d 141 (2007)--Like Shelton except
concerned the "clean slate" provision of Ark. Code Ann. §5-4-311; because the
offender was sentenced to ADC (and ended up completing the boot camp
program), his disposition was clearly not made under §5-4-311 because a
judgment of conviction was entered.
c. Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002)--Holds that an offender

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committing the offense of sexual solicitation of a minor child was illegally
sentenced under the First Offender Act for at the time the offender committed the
offense it excluded such persons from being sentenced under the Act. The
Supreme Court raised the issue sua sponte and corrected the disposition to
provide that the offender was not sentenced under the First Offender Act and
would therefore not be able to get his record expunged. An alternative basis
could have been that as the disposition was made after a jury trial instead of a plea
of guilty or nolo contendere the First Offender Act was inapplicable.
d. State v. Warren, 345 Ark. 508, 49 S.W.3d 103 (2001)--this case and others
concerned Act 595 of 1995 and the scenario of an offender being charged with
felon in possession of a firearm under Ark. Code Ann. §5-73-103. If the prior
felony occurred before the effective date of Act 595 of 1995 and ended up being
expunged, it cannot form the basis of a felon in possession of firearm charge. If
the prior offense occurred after the effective date of Act 595 of 1995, then an
expungement will not restore the right to possess a firearm and, in that instance, a
person must apply for and receive at least a restoration of firearm right from the
Governor; otherwise if he possesses a firearm he can be prosecuted for felon in
possession of a firearm notwithstanding the fact that his conviction was expunged.
Note! recent legislative Act 1491 of 2009 which amends the felon in possession
of firearm statute notes that if a felony is expunged, the offender may possess a
firearm such that the offender could not be successfully prosecuted for felon in
possession of a firearm. Essentially this Act reinstates the law as it existed prior
to the passage of Act 595 of 1995. Issues include (1) whether this new Act
applies to expungement acts other than the First Offender Act and expungements
under drug court programs and (2) whether this new Act requires those who have
already received an expungement to file another application resulting in entry of
another expungement order in order to receive the benefits of the new Act.
e. Edwards v. State, 70 Ark. App. 127, 15 S.W.3d 358 (2000)--The offender was
sentenced under the Community Corrections/Punishment Act for aggravated
assault and received probation. The offense was committed in November, 1995,
and was not expunged. Subsequently he was charged with felon in possession of
a firearm and the Court held that prior felony could for a basis for the charge in
that the prior felony was not expunged and the trial court has discretion under the
Community Corrections/Punishment Act to expunge the record. The case of Irvin
v. State, 301 Ark. 416, 784 S.W.2d 763 (1990), was distinguished. In that case
the offender was sentenced under the Youthful Offender Alternative Service Act
of 1975 and was absolutely entitled to an expungement under that Act without
any action on his part. In Irvin, had the expungement occurred when it should
have, based on the law in effect at that time the State could not have successfully
prosecuted the offender for felon in possession of a firearm.
f. Gosnell v. State, 284 Ark. 299, 681 S.W.2d 385 (1984)--holds that expunged
convictions under the Youthful Offender Alternative Service Act of 1975 can be
utilized to charge the offender as a habitual offender when he commits subsequent
felonies. In West v. State, 82 Ark. App. 165, 120 S.W.3d 100 (2003), the Court
reached the same result.

13. PRACTICE POINTERS AND CONCLUSION

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Uniform judgment and disposition orders or judgment and commitment
orders are in use and they all have a section dealing with whether the offender's
disposition is made pursuant to an Act authorizing expungement, sealing and
sequestration of their record if they successfully complete their sentence. If an
offender's disposition is going to made pursuant to Act authorizing expungement
upon successful completion of sentence, the judgment or order of disposition should
clearly provide what Act the disposition is being made under so that there will be no
question of the offender's eligibility for expungement when the offender files a
petition to seal and sequester the record. There are cases where there may be a
number of choices for a disposition under various expungement Acts that could apply
so the order or judgment needs to specify which specific one is going to apply.
Eligibility needs to be determined at least by the time the disposition is
made; otherwise, the offender may be ineligible for expungement upon successful
completion of his/her sentence.

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