Criminal Record Expungement in Maryland
Md. Code (1957, 1996 Repl. Vol.), Art. 27, sections 735 through 741, and Maryland Rules 4-501 through 4-512, govern expungement of criminal records.
In Mora v. State, 355 Md. 639, 641, 735 A.2d 1122 (1999), the Court of Appeals explained that under the expungement statutes, "two situations are provided for - - when a person is arrested or otherwise detained but not formally charged, and when a person is formally charged but, for any of the reasons enumerated . . . is not convicted or, if convicted, is pardoned."
Under section 736(a), which applies to the first situation, a person who has been arrested, detained, or confined by a law enforcement agency for certain crimes, and has been released without being charged with the commission of a crime, may give notice to "any law enforcement agency which he believes may have police records concerning that arrest, detention, or confinement, and request expungement of those police records."
The notice may not be given before the expiration of the statute of limitations for tort actions arising from the incident unless the person files a General Waiver and Release of any claims he might have against any person for tortious conduct arising from the incident. The General Waiver and Release is to be in the form as set forth in Md. Rules Form 4-503.2. Md. Rule 4-503(a).
If the law enforcement agency denies the request, the person may file an application for expungement of police records in the district court for the county in which the applicant was first arrested, detained, or confined. The district court then may issue an order requiring the agency to expunge the records. 736(e) and (f).
By contrast, 737 allows, among other things, a person who has been charged criminally on a charge that is later nolle prossed to petition the court in which the proceeding was commenced for expungement of "the police records, court records, and other records maintained by the State of Maryland and its subdivisions, pertaining to the charge."
The petition must be filed in the original action. Md. Rule 4-504(a). It may not be filed within three years after the charges have been nolle prossed, however, unless the petitioner attaches an executed General Waiver and Release of all claims he may have against any person for tortious conduct arising from the charge. 737(d)(2)(i); Md. Rule 4- 504(b).
The General Waiver and Release must be "in the form set forth . . . as [Maryland Rules] Form 4.503.2." Md. Rule 4-504(b). If the State's Attorney does not object to the petition within 30 days after service, he is deemed to have consented, and the court must enter an order requiring the expungement of police records and court records pertaining to the charge. 737(i); Md. Rule 4- 505(d).
Art. 27, 735 defines, among other terms, "court records," "police records," and "expungement." "Court records" and "police records" are defined inclusively and exclusively: the statute explains what they are and specifies records that do not qualify. "Expungement" is defined only "with respect to court records or police records" and means the effective removal of these records from public inspection:
(1) By obliteration;
(2) By removal to a separate secure area to which the public and other persons having no legitimate reason for being there are denied access; or
(3) If effective access to a record can be obtained only by reference to other records, by the expungement of the other records, or the part of them providing the access.