Administrative Expunction in Florida
Florida’s law for an administrative expunction is a seldom-used procedure that allows an innocent person who is illegally arrested or arrested in error to erase everything about the arrest or court case. You are not required to pay any costs for the administrative expunction under Florida Statute 943.0581.
Additionally, your prior record or a previously sealed or expunged case does NOT make you ineligible for an administrative expunction. Unlike the court ordered expunction, the administrative expunction is a total erasure of the arrest record.
Court expungements can take several months. The court ordered expunction requires a fingerprint card, pages of paperwork to fill out and notarize, a $75 FDLE application fee for a background check to receive the certificate of eligibility, and the fees imposed by the court.
What’s the catch? To qualify for an administrative expunction in Florida, you need a letter or written endorsement on official letterhead from the head of the arresting agency or the State Attorney’s Office, or an order by the court specifically finding that the arrest was unlawful or by mistake.
If you don’t have such a letter or endorsement signed by the head of the arresting agency, State Attorney’s Office, or a court order signed by the judge, then you are NOT eligible for an administrative expunction. Although only a few are eligible, if you are eligible you should seek the administrative expunction.
Statistics on Florida’s Administrative Expunction
Across the State of Florida, there were only 183 administrative expunctions in fiscal 2007-08, 176 administrative expunctions in 2008-09, and 274 administrative expunctions as of June 30 of the 2010-11 fiscal year.
In comparison, there were 7,993 court-ordered expungements and 4,404 criminal cases sealed by judges during 2008-09 and 8,480 expungements and 5,578 criminal cases sealed during the 2007-08 fiscal year.
Procedures for the Administrative Expunction
After the request is submitted, an Operations & Management Consultant Manager or a Senior Criminal Justice Information Technician with FDLE’s Quality Control Section will review the request, along with associated documentation, and determine whether it meets the criteria for an administrative expunction per section 943.0581, F.S.
What is an administrative expunction?
The law for a petition for an administrative expunction is contained in Florida Statute 943.0581. Under the statute, the Florida Department of Law Enforcement is required to adopt rules pursuant to chapter 120 for the administrative expunction of any nonjudicial record of an arrest of a minor or an adult made contrary to law or by mistake.
Under Florida Statute 943.0581(2), only a “law enforcement agency” is permitted to apply to the Florida Department of Law Enforcement (FDLE) in the manner prescribed by rule for the administrative expunction of any nonjudicial record of any arrest of a minor or an adult who is subsequently determined by the agency, at its discretion, or by the final order of a court of competent jurisdiction, to have been arrested contrary to law or by mistake.
Alternatively, an adult or, in the case of a minor child, the parent or legal guardian of the minor child, may apply to the department in the manner prescribed by rule for the administrative expunction of any nonjudicial record of an arrest alleged to have been made contrary to law or by mistake, provided that the application is supported by the endorsement of the head of the arresting agency or his or her designee or the state attorney of the judicial circuit in which the arrest occurred or his or her designee.
In other words, the chief of police of sheriff himself (or his designee) or the State Attorney (or his designee) must sign the application.
Requirements for the Application for the Administrative Expunction
When the law enforcement agency makes the request, the agency will often type up a one-page document entitled “Quality Control Administrative Expunction Request.” The form is sent to the following address:
Florida Department of Law Enforcement (FDLE)
Quality Control Section
Post Office Box 1489
Tallahassee, FL 32303-1489
An application for administrative expunction shall include the date and time of the arrest, the name of the person arrested, the offender-based tracking system (OBTS) number, and the crime or crimes charged. The application shall be on the submitting agency’s letterhead and shall be signed by the head of the submitting agency or his or her designee.
Under Florida Statute 943.0581(6), if the person was arrested on a warrant, capias, or pickup order, a request for an administrative expunction may be made by the sheriff of the county in which the warrant, capias, or pick-up order was issued or his or her designee or by the state attorney of the judicial circuit in which the warrant, capias, or pick-up order was issued or his or her designee.
Under the statute, the fact that an application is signed or endorsed under this section is not admissible as evidence in any judicial or administrative proceeding and may not be construed in any way as an admission of liability in connection with an arrest.
What are FDLE’s Procedures for the Administrative Expunction?
In response to Florida Statute 943.0581, FDLE adopted Rule 11C-7.008 for the Administrative Expunction Procedures. The latest version of the final adopted rule is presented in Florida Administrative Code (FAC): The effective date of the last version of the rule became effective on April 16, 2009.
Differences between an Expunction and an Administrative Expunction
Although a court-ordered seal or expunge a record, expungement, can cost hundreds of dollars in costs and be time-consuming, the administrative expunction is free and much faster.
A court-ordered seal or expunge also leaves behind your fingerprints and other identifiers in non-public records. The “administrative expunction” destroys everything in the arrest and prosecution record, even the fingerprints. In other words, the administrative expunction effectively erases everything.
Despite the benefits of seeking an administrative expunction, few innocent people are taking advantage of the law because it requires a letter or endorsement on official letterhead from the head of the arresting agency or an agreement with the State Attorney’s Office, or an order by the court specifically finding that the arrest was in error or unlawful.
A Heavy Burden – Showing the Arrest was Illegal or by Mistake
The term “illegal arrest” means that the officers did not have probable cause to make the arrest which would also make the arrest “wrongful” and “by mistake.”
The administrative expunction might also apply if the officers are looking for a John Doe and arrest the wrong John Doe. In that case, the arrest is by mistake or in error because of a case of mistaken identity.
No Limits Based on the Criminal Record
The other advantage of the administrative expunction is that even if you have a prior conviction or a prior case was sealed or expunged, you are still eligible for an administrative expunction. Under those same circumstances, you are not eligible to either seal or expunge under the court-ordered seal or expunge process.
If your arrest was illegal by mistake then you do NOT want to use up your one lifetime right to expunge a record. Also, all types of criminal accusations are eligible for an administrative expunction – even those offenses that are on the ineligible list to seal such as murder, manslaughter, sex offenses or domestic violence.
This article was last updated on Monday, October 17, 2016.