Categories :: Criminal > Expungement

FORM: Petition for Shielding under Maryland Second Chance Act

 

This article explains the Maryland Second Chance Act of 2015.  (MD Code Ann, Criminal Procedure 10-301 through 10-306)

Summary

Shielding is a process that lets you ask the court to remove certain kinds of records about certain criminal convictions from public view. Shielding these records from public view may make it easier to get a job, attend college, or get a government service of some kind.  Shielding is a one-time opportunity: you can only have a shielding petition granted once in your lifetime.

This is a new law, and some aspects of how it works are not yet clear.  Before filing for shielding, it is wise to talk with an attorney about all of your options for expungement and shielding.

Is shielding the same as expungement?

No.  Shielding is different from expungement.  In some cases, shielding gives less protection than expungement, because it leaves your records accessible by certain people.  However, several types of convictions can be shielded even though they cannot be expunged.

Which crimes: is my type of criminal conviction eligible for shielding?

Convictions for the following crimes are eligible to be shielded:

  1. Disorderly conduct under § 10–201(c)(2) of the Criminal Law Article;
  2. Disturbing the peace under § 10–201(c)(4) of the Criminal Law Article;
  3. Failure to obey a reasonable and lawful order under § 10–201(c)(3) of the Criminal Law Article;
  4. Malicious destruction of property in the lesser degree under § 6–301 of the Criminal Law Article;
  5. Trespass on posted property under § 6–402 of the Criminal Law Article;
  6. Possessing or administering a controlled dangerous substance under § 5–601 of the Criminal Law Article;
  7. Possessing or administering a noncontrolled substance under § 5–618(a) of the Criminal Law Article;
  8. Use of or possession with intent to use drug paraphernalia under § 5–619(c)(1) of the Criminal Law Article;
  9. Driving without a license under § 16–101 of the Transportation Article;
  10. Driving while privilege is canceled, suspended, refused, or revoked under § 16–303 of the Transportation Article;
  11. Driving while uninsured under § 17–107 of the Transportation Article; or
  12. Prostitution (not assignation) under § 11–306(a)(1) of the Criminal Law Article if the conviction is for prostitution and not assignation.

Exceptions:

However, there are two exceptions that prevent you from getting an eligible type of conviction shielded.

  1. Convictions for domestically related crimes under § 6–233 of the Criminal Procedure Article CANNOT be shielded.
  2. If you have two or more convictions that came from the same incident, transaction, or set of facts, then eligibility for shielding those convictions is “all or nothing.”  If any of those convictions is not eligible for shielding, then none of those convictions is eligible.

How do I file a petition for shielding?

Because you can only ever get one shielding petition granted in your life, and because you may not be able to include every conviction on your application, it is a good idea to seek legal help in deciding how, when, and where to file your petition.

Issue

Rule

Where do I file my petition?

File the petition in the court where your case finished.

When can I file my petition?

  • You must wait at least three years after completing all of your sentences from all of the offenses you are asking to have shielded.  That means three years after the end of any parole, probation, or mandatory supervision.
  • If you are convicted of a new crime during the waiting period for the prior convictions, you will not be eligible to have the prior convictions shielded, unless the new conviction also becomes eligible for shielding.
  • You are not eligible for shielding if you are a defendant in a pending criminal proceeding.

How often can I request shielding?

You can only be granted shielding once in your lifetime.

 

How many convictions can I include?

On your one petition, you can include as many convictions as you wish on your petition.  They must all be for crimes that are eligible.

What is the fee to file the petition?

The filing fee is $30 and is nonrefundable, even if the petition is denied.  The fee is for all eligible cases contained within the petition, not per case.  If you cannot afford the fee, you may request that the court waive (excuse) the filing fee.

What’s the process:  what happens after I file the petition?

  1. After you file the petition, the court will notify the State’s Attorney and any victims listed in the case(s) that you are asking the court to shield. 
  2. Any victims may submit information or objections to the court.  The court will consider that information.
  3. If the State’s Attorney objects to your petition within 30 days after receiving the petition, the court will hold a hearing.  If the State’s Attorney does not object, the court may make a decision about shielding without a hearing.
  4. If the court schedules a hearing and the judge finds that you are entitled to shielding, the court will order the shielding of all police and court records related to the conviction(s) in the petition.

What protections do you get if your petition is granted, and who can still see the shielded records?

With the exceptions listed below, shielding limits what an employer, an educational institution, or a state or local government can ask you about, and makes it so the general public cannot access the records.

The Public

The law protects you from public access to shielded information in two ways.

  1. The Maryland Judiciary Case Search is not allowed to refer to the existence of shielded records; and
  2. No one with access to shielded information under the exceptions below is allowed to share that information with anyone who does not have that access.

Educational Institutions

If you apply for admission, educational institutions may not: 

  1. Require you to tell them shielded information; and they may not
  2. Expel you or refuse to admit you just because you refused to tell them shielded information.

Employers

With the exceptions listed below, if you apply for a job, employers may not:

  1. Require you to tell them shielded information; and they may not
  2. Fire you or refuse to hire you just because you refused to tell them shielded information.

State agencies:

With the exceptions listed below, if you apply for a permit, registration, or government service, state or local government employees may not:

  1. Require you to tell them shielded information; and they may not
  2. Deny your application just because you refused to tell them shielded information.

The exceptions:

NOTE:  A person with access to records under these exceptions may not share the information with anyone who does not have access under these exceptions.

A shielded record will remain fully accessible by:

  1. Criminal justice units for legitimate criminal justice purposes;
  2. Prospective or current employers or government licensing agencies that are subject to a statutory or regulatory requirement or authorization to inquire into the criminal background of an applicant or employee for purposes of carrying out that requirement or authorization;
  3. A person that is authorized or required to inquire into an individual’s criminal background under § 5–561(b), (c), (d), (e), (f), or (g) of the Family Law Article;
  4. The person who is the subject of the shielded record and that person’s attorney;
  5. Health occupations boards established under the Health Occupations Article;
  6. The Natalie M. LaPrade Medical Marijuana Commission established under Title 13, Subtitle 33 of the Health – General Article;
  7. A person that uses volunteers who care for or supervise children;
  8. A person that attests under the penalty of perjury that the person employs or seeks to employ an individual to care for or supervise a minor or vulnerable adult, as defined in § 3–604 of the Criminal Law Article; and
  9. A person who is accessing a shielded record on behalf of and with written authorization from a person or governmental entity described in items (1) through (8).

Which records: which types of records will be removed from public view?

Shielding covers “police records” and “court records.”

A “court record” means an official record of a court that court personnel keep about a criminal proceeding or any other non-juvenile proceeding concerning a civil offense or infraction enacted under State or local law as a substitute for a criminal charge.  This includes a record of a violation of the Transportation Article for which a term of imprisonment may be imposed.  It also includes an index, docket entry, charging document, pleading, memorandum, transcription of proceedings, electronic recording, order, and judgment.

A “police record” means an official record that a law enforcement unit, booking facility, or the Central Repository maintains about the arrest and detention of, or further proceeding against, a person for:

  • a criminal charge;
  • a suspected violation of a criminal law;
  • a violation of the Transportation Article for which a term of imprisonment may be imposed; or
  • a civil offense or infraction, except a juvenile offense, enacted under State or local law as a substitute for a criminal charge.
     

Source: 

Dave Pantzer, Esq.

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