An individual has the right to have his or her record expunged if the prosecuting attorney determines that:
- The offense was not referred to prosecuting attorney for prosecution;
- The prosecuting attorney dismisses the charge without seeking an indictment or filing an accusation;
- No other criminal charges are pending;
- The individual has not been previously convicted of the same or a similar offense.
The record will not be expunged if the charges were nolle prossed, dead docketed or otherwise dismissed because:
- Of a plea agreement resulting in conviction for an offense arising out of the same underlying transaction;
- The government was barred from introducing material evidence;
- A material witness refused to testify or was unavailable;
- Individual was incarcerated on other criminal charges and the prosecuting attorney elected not to prosecute;
- The conduct was part of a pattern or criminal activity; or
- The individual had diplomatic or similar immunity.