Expunging Criminal Records with an Idaho Withheld Judgment

In many states, there is a disposition of criminal cases called a "withheld judgment" or "deferred sentence." In Idaho it is authorized by Sections 19-2601(3) and 19-2604. Its legislative purpose is to keep the existence of the case off the record for most uses and to let the defendant go on as if it never happened. Idaho courts describe the "withheld judgment" this way:

to provide an opportunity for rehabilitation and to spare the defendant, particularly a first offender, the burden of a criminal record.

State v. Branson, 128 Idaho 790 at 793, 919 P.2d at 322 (1996). Unless you follow the advice in this post, that is not what is going to happen in your case.

In most states, if you are lucky enough to have your case resolved this way, all you do is wait out the probation period, then apply to the court at the specified time, and the arrest, charge, and conviction comes off your record. However, in Idaho, what actually happens in practice is that all the details of the case remain part of the public record for anyone to find. The only thing that changes when one applies for and is granted the order for withheld judgment, is that the label on the case changes to "conviction reversed and case dismissed."

The problem is that all the rest of the information, the original charges (if they were trumped up to leave the prosecutor room for plea bargaining), and every play by play of the case that was part of the public record is still there. The online Idaho Repository can deliver all details of this case instantly to any journalist or interested person if the withheld judgment is carried out in the typical way.

So, you need to make sure it is not carried out in the typical way. You want to make sure your withheld judgment results in the case being expunged from your record. From what attorneys are saying, this is "notoriously difficult" and "not going to happen" in Idaho.

Don't settle for that advice. Your attorney is probably busy and has financial incentive to re-cycle the same paper he used on the last client. The fact that you even have a withheld judgment says that the court thinks this case is relatively unimportant, too. Really, this case is only important to you and no one else, so if you want it sealed, you're going to have to do a little extra work.

The process is this:

1. At your sentencing, the judge ordered a Withheld Judgment along with a period of probation, and maybe fine, or requirement to complete some kind of re-education program.
2. Now the probation time is close to expiring and you have fulfilled every other requirement of the original judgment, including your not ever violating any term of probation.
3. You have to file the following 3 papers all together in order to get the benefit of the Withheld Judgment:

• Affidavit of Compliance with Withheld Judgment. This is a notarized paper in which you testify and sign that you have complied with all terms of your probation. Kootenai County has a pre-printed form that is used specifically for this purpose and the clerk at the desk will hand it to you and notarize it for you for free. Just don't let her take it from you and file it by itself, as she will try to do. Tell her you will bring it back to her in a little while.
• Motion to Dismiss Withheld Judgement and Expunge Records. This is a court motion in which you ask the court to activate the withheld judgment based on the fact of your compliance with all the requirements of the judgment. It is signed by either you or your attorney. Here is a sample for you to edit and use.
• Proposed Order Granting Motion to Dismiss and Expunge Records. This is a court order that you write, and that you are asking the court to sign. It contains reasoning based on Title 19 (withheld judgments) and ICAR 32 (sealing cases where individual privacy outweighs public disclosure). It is also specific enough that if a state or local agency does not expunge this record, you can point to this Court Order that they are violating, and if that is not enough, file a Writ of Mandamus to force them to comply. You do not sign this, you leave it blank and hope the judge will use it verbatim and sign it. Here is a sample for you to edit and use.

Normally in Idaho,when trying to make use of a Withheld Judgment, the government machinery turns on just Title 19, and all the automatons do nothing to protect your criminal record. What is different about your motion is that it involves Idaho Court Administrative Rule 32(i), which allows the court to protect and seal a record if it makes a fact finding that certain material is not subject to public disclosure. The primary case that outlines how ICAR Rule 32 works is State v. Turpen, 216 P.3d 627 (2009).

In order to qualify for the extra protection of sealing your case (achieving expungement), the court has to make a written finding that satisfies just one of these:

• The material contains highly intimate facts that, if published, would be objectionable to a reasonable person, or,
• The material contains facts that, if published, would reasonably result in economic or financial loss to a person with interest in the material (you), or physical harm to anyone.

Submitting the 3 documents listed above is your application to the court to activate your Withheld Judgment. Before you file these documents in your case with the Court Clerk, mail a copy of each to the prosecutor so that your "Certificate of Service" on your motion is valid. After a few days, the prosecutor will either object or not to your motion and you'll find out by mail. If they object, then the judge may set a hearing to argue the matter. More likely, they will not answer or not object, and in that case the judge should issue an order granting your motion within a week or two.

With luck, the judge will just sign your proposed order, which will seal the case and close off information leaks from the Idaho Repository, Idaho State Patrol criminal history background checks and other sources that obtain data from public information. Then you can honestly report that you were never convicted of this crime. Although background checks that search public records will not turn this up, investigations conducted by law enforcement agencies will. This means background checks conducted by a private firm, such as for a job application, should be clear. But if you're trying to join the military or FBI, the case will be found. If you have money and are curious about what might be found, wait a couple of weeks and then order a pre-employment/criminal background check on yourself from a service like Intelius, US Search or another. Contrast that result with one conducted directly through the FBI.

Also be aware that the withheld judgment is still considered a conviction for purposes of "3 strikes" type of laws and counting DUI priors, and can disqualify an application for an Idaho concealed weapon permit made within 3 years.