These types of expunctions are rare in Florida because a law enforcement agency or prosecutor is rarely going to admit that an arrest was made "contrary to law" or "by mistake." But it does happen.
Sometimes the officer acts in an unlawful way as determined in an internal affairs investigation into police misconduct.
In some cases, the State Attorney's Office will drop the case and explain in writing that the reason for dropping the charges is because the arrest was "unlawful" or "contrary to the law."
If the agency or prosecutor won't agree, then you can file a motion to suppress evidence or a motion to dismiss the charge and convince the judge to grant the motion on the grounds that the arrest was "unlawful" or "contrary to the law."
The benefits of using the administrative expunction include not using up your once-in-a-lifetime right to seal or expunge a criminal record. Also, if you have previously sealed or expunged a prior record or are not otherwise eligible because you were previously convicted of any criminal offense, then the administrative expunction is the only option available.
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.
If you would like more information about sealing or expunging your criminal record, then contact the criminal defense attorneys at the Sammis Law Firm in Tampa, FL. Call 813-250-0500.
What is an administrative expunction?
Title XLVII for criminal procedure and corrections in Chapter 943 provides a process to petition for an administrative expunction. The administrative expunction under Florida Statute 943.0581 is different from Florida's other laws dealing generally with the preservation and destruction of public records.
The legislature allowed the Florida Department of Law Enforcement to adopt a rule 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 pickup order was issued or his or her designee or by the state attorney of the judicial circuit in which the warrant, capias, or pickup 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. Rule 11C-7.008 for the Administrative Expunction Procedures provides:
(1) Non-judicial records of arrest made contrary to law or by mistake will be administratively expunged by the Department, upon application by the arresting law enforcement agency, or by the person arrested or, in the case of a minor child, the parent or legal guardian of the minor person arrested. An application submitted by the person arrested or the parent or legal guardian of the minor person arrested, shall be supported by the endorsement of the head or chief law enforcement officer of the arresting agency or of the state attorney of the judicial circuit in which the arrest occurred.
(2) Application for administrative expunction requires either that the arresting law enforcement agency has determined that the arrest was made contrary to law or by mistake; or that a court of competent jurisdiction has entered a final order finding that the arrest was made contrary to law or by mistake.
(3) An application for administrative expunction must be in writing. If submitted by the arresting law enforcement agency, the application shall be on agency letterhead, and signed by the head or chief law enforcement officer of the arresting agency or his or her authorized designee. An application submitted by the person arrested or the parent or legal guardian of the minor person arrested, must be in writing and must identify the relationship of the person signing the application to the person arrested.
(4) A supporting endorsement of an application submitted by the person arrested or the parent or legal guardian of the minor person arrested, must be in writing, on agency letterhead, and signed by the head or chief law enforcement officer of the arresting agency or his or her authorized designee or by the state attorney of the judicial circuit in which the arrest occurred or his or her authorized designee.
(5) An application for administrative expunction submitted by the arresting law enforcement agency, or the supporting endorsement in the case of an application submitted by the person arrested or the parent or legal guardian of the minor person arrested, shall identify the arrest to be expunged by providing the following information. Written documents related to administrative expunctions shall make specific reference to identifying information, including:
(a) Name and Aliases;
(b) Sex and Race;
(c) Date of Birth;
(d) Social Security Number (if available, used for identification – not mandatory);
(e) Date and Time of Arrest;
(f) Original Charges(s);
(g) FDLE Number and FBI Number (if applicable and known);
(h) OBTS Number;
(i) Reason for Administrative Expunction;
(6) If the person was arrested on a warrant, capias, or pick-up order, the request for an administrative expunction, or the supporting endorsement of an application submitted by the person arrested or the parent or legal guardian of the minor person arrested, may be made by the sheriff of the county where the warrant, capias, or pick-up order was issued or his or her designee, or by the state attorney of the judicial circuit where the warrant, capias, or pick-up order was issued or his or her designee.
(7) When an administrative expunge application meets the statutory requirements, the Department will notify the arresting agency, which is then responsible for expunging its records of the arrest, and for notifying any other agency to which it provided the criminal history record information that is the subject of the administrative expunction.
(8) No application or endorsement made under this section shall be admissible as evidence in any judicial or administrative proceeding or otherwise be construed in any way as an admission of liability in connection with an arrest.
(9) The procedures by which an individual may secure an administrative correction of the criminal history record pertaining to the individual are set out in Chapter 11C-8, F.A.C. Non-criminal arrest records which are mistakenly or improperly forwarded to the Department for processing and retention as criminal history records will be removed as an administrative correction by the Department.
Rulemaking Authority 943.03, 943.0581 FS. Law Implemented 943.0581 FS. History–New 8-5-92, Amended 3-21-07, 4-16-09.
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