If you’ve ever been charged with Possession of Marijuana in Kentucky, it is very likely to show up on a criminal background check. But, if you’ve completed your sentence, there is a relatively easy way to have the possession charge removed from your record.
What’s a Void and Seal?
Kentucky law KRS 218A.276(8) states:
In the case of any person who has been convicted of possession of marijuana, synthetic drugs, or salvia, the court may set aside and void the conviction upon satisfactory completion of treatment, probation, or other sentence, and issue to the person a certificate to that effect. A conviction voided under this subsection shall not be deemed a first offense for purposes of this chapter or deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.
What this means is that a person that has been sentenced to jail, treatment, or probation as a result of a a possession of marijuana conviction can apply to the court to have the conviction voided and sealed.
What Effect Does a Void and Seal Have on My Record?
The void and seal law tells us:
If the court voids a conviction under this section, the court shall order the sealing of all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records, except as provided in KRS 27A.099. The court shall order the sealing on a form provided by the Administrative Office of the Courts. Every agency with records relating to the arrest, charge, or other matters arising out of the arrest or charge that is ordered to seal records, shall certify to the court within sixty (60) days of the entry of the order that the required sealing action has been completed. After the sealing of the record, the proceedings in the matter shall not be used against the defendant. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record is sealed shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application.
So if your motion is successful, the record will be sealed, the clerks will not report its existence to background check agencies, and you are not required to disclose it on any type of application.
So What Are The Requirements?
Well you have to complete your sentence. Some courts hold that you have to have completed some form of treatment, though many do not require it. Those courts that do require you to complete a treatment program will typically accept a certificate from an online marijuana education course such as this: Course For Drugs & Alcohol | Kentucky. If you want the best shot at having your motion succeed, it would be best to complete a treatment program first.
How Do I Get a Write a Motion to Void and Seal?
There is no “form” available to file a void and seal. So I created one to help people with the process of drafting the motion. It’s available on the Baldani Law Group website for free here. You will need your case number to create the motion. If you don’t have your case number, the Circuit Court Clerk for the court where your case was can provide you with that information.
OK, I’ve Got My Motion. Now What?
You will need to take the motion to the courthouse where you were convicted. Once there you will have to take it to the clerk and file it. You will need to sign the motion in two places, and make sure a copy is given to the County Attorney. Our automated void and seal motion gives you the name and address of the prosecutor it must go to. The clerk’s office can give you a court date.
What Do I Do On My Court Date?
On your court date, dress presentably. Be on time. When the judge calls your name, be ready to present your case. Tell them you filed a motion and would like your record voided and sealed. If you completed a treatment program, present them with the certificate.
OK, I Don’t Want to Do All of That.
If you don’t want to do all of this, you can of course hire an attorney to do it. Most criminal defense lawyers should be familiar with the process. However, this is relatively simple, and if you don’t have the funds to hire a lawyer, or are relatively organized, you could handle it on your own.
What Happens After the Judge Grants My Motion?
After your motion is granted, the clerks, the courts, and the state police will update your record to show that the conviction is sealed. In some limited contexts, you may want to still reveal the case: particularly if you are applying for a VISA to a foreign country, a federal job, or have a non-citizen immigration status. If you are a non-citizen or are traveling abroad, you should consult with an attorney before going through this process.
Kentucky law allows you to get a possession conviction off your record, but it’s up to you to take affirmative steps to do it. Otherwise the conviction will show on your background permanently. The criminal defense attorneys at my firm would be happy to handle the process, or refer you to qualified counsel in your area, if you don’t want to go it alone.
Brad Clark is an attorney Formerly of Baldani Law Group.
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