When can you seal and expunge your arrest?

  • By Lindell & Farson
  • 19 Feb, 2016
As long as it is your first arrest and you have not been adjudicated guilty of the offense, you may seek to have the arrest be sealed/ expunged. There are some instances where a “notice to appear” will be counted as an arrest. The arrest cannot include felonies nor certain misdemeanor charges such as assault, battery, firearms charges, petit theft, and child neglect.

Although you may have been arrested more than once, if those arrests arose out of a single incident, the court may expunge multiple arrests. See Oymayan v. State, 765 So. 2d 812, 813 (Fla. 1st DCA 2000) (stating “Fla. Stat. § 943.0585 (Supp. 1998) does not provide that a court may expunge records related to one arrest so long as the arrest involved but one incident. It subsequently allows the court to order expunction of records ‘pertaining to more than one arrest if the additional arrests directly relate to the original arrest.’”.

Your plea of guilty or no contest does not determine whether you have been adjudicated guilty. Even if the judge found you guilty of the offense, the judge may still have given you a withhold of adjudication permitting the arrest to be sealed and/ or expunged.

The sealing of the arrest provides that the records of your arrest are not accessible to the public, but may be subject to disclosure in special instances. The expunging of your arrest provides that the actual files are destroyed at the State Attorney’s Office, but the file is not necessarily destroyed at all other government agencies. However, it does provide that they are not accessible publicly, and that you may legally deny the arrest in most cases.

Can I deny my arrest after my case has been sealed and expunged?

Yes, in most instances. Florida statutes § 943.059(4)(a) on sealed cases and § 943.0585(4)(a) on expunged cases provide that you “may lawfully deny or fail to acknowledge the arrests covered by the sealed/ expunged record…”.

However, there are exceptions in which you must admit your sealed and/ or expunged record. The more commonly used exceptions include when you are seeking a particular area of employment such as with a criminal justice agency and other government entities in which you will have contact with children, students, the elderly, or the disabled. Also an employer or agency working with the federal government where a security clearance is required will have access to your sealed / expunged record.

There is no time limit on the sealing and/ or expunging of your case in Florida, therefore, you may deny the arrest indefinitely unless the exceptions under the statute apply. The sealing and expunging Florida statutes, including a full list of exceptions, can be found here:
Florida statute §943.059 for sealing cases: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0900-0999/0943/Sectio...
Florida statute §943.0585 for expunging cases: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0900-0999/0943/Sectio...

Written by Renee K. Holterman, Esq. an attorney with Lindell & Farson, P.A. 

Lindell and Farson

By Lindell & Farson 07 Jul, 2016

            Contracts are a part of our everyday life. The benefit of having a written contract is to make sure each party’s obligations are clearly stated. However, when the contract is drafted by someone else, you may not understand the consequences of some of the terms buried in the “fine print.” Currently, a contentious issue, and one that is often missed when flipping to the last page of a contract, involves mandatory arbitration clauses and the restrictions they impose.

            For starters, an arbitration clause requires all disputes to be settled by an arbitrator out of court rather than by either a trial by jury or by judge. Often, people are surprised to find that this clause restricts their claims to arbitration. Most of the time, unsophisticated parties such as consumers have no idea what they are truly giving up.

            Many arbitration clauses contain a consent to arbitrate in a remote location, inconvenient to everyone but the company. Such locations insulate companies from legitimate consumer claims, and impose financial impediments on such claims. Thus, it is important to determine if the location of arbitration is financially and practically viable should the need for arbitration arise. If you cannot get to the arbitration, there is likely no other form of recourse available, which can leave your issue with the company unresolved. This is often fine with the company.

            Another restriction companies can include in an arbitration clause is a restriction on class action complaints. In a recent case named McKenzie Check Advance of Florida, LLC d/b/a National Cash Advance v. Betts, Reuter, and Kelly, the Fourth District Court of Appeal in Florida held that language in an arbitration clause eliminating the availability of class action complaints is enforceable. Thus, it has now been established in Florida that an individual has no way of pursuing a class action complaint if such restrictions are present in an arbitration clause. Typically, in a class action, each member of the defined class has a similar claim to a small sum of money that would not justify an individual claim for damages. By combining their claims with other similarly-situated consumers, the class members will have the ability to obtain relief on behalf of all members of the class. With the Fourth District’s ruling in McKenzie , that ability to obtain compensation is impaired, if not eliminated entirely. It doesn’t make sense to pay court and attorney’s fees for a nominal recovery, so it is likely that compensable damages will be left unpursued, and small amounts of illegal surcharges or fees will continue to be taken from large numbers of consumers with impunity for the companies. While small amounts of recovery may not seem like a big deal, the larger picture is that these class actions are often the only way to keep large companies accountable.

  So, the question now becomes, “Is there any way to escape or reject these clauses?” Businesses include these clauses to protect themselves from claims, however, this does not mean that you cannot ask for a clause to be removed or altered. Before you sign a contract, you are free to attempt to negotiate terms in any legal way you desire. Just be prepared to either need to give something to get something, or to be presented with a simple “take it or leave it” counter-proposal. If negotiations fall through, you also always have the option to walk away. If you are truly not comfortable with agreeing to go to Kalamazoo to arbitrate or with losing your right to bring a class action claim, then don’t sign the contract. Once you sign the contract, Florida law will likely bind you to it, no matter how unfair you claim the language to be once a dispute arises. This stems from the legal understanding that every contract is bargained for, and that if the terms were truly unfair, the parties would never have come to an agreement in the first place, absent some sort of fraud or coercion.

            As has always been the case in contracts law, the signing party cannot claim ignorance as to what is included in the contract language. Sometimes you will choose to sign contracts containing an arbitration clause. Better that you understand all of the consequences before doing so.


By J. Michael Lindell, Esq.

and Christian Lake (Law Clerk)

By Lindell & Farson 14 Mar, 2016
I’ve noticed recently that some personal injury lawyers are advertising on television touting their compassion to persuade people into giving them their legal business. I wonder each time I see one of these TV commercials whether anyone is really influenced by such statements. In my experience people who are truly compassionate do not go around declaring their own compassion as a way to gain attention. Maybe because I see humility as part of genuine compassion I wonder whether it is credible to use compassion as a marketing tool.

Some of lawyers pushing compassion in their advertising messages have protocols inside their law firms that are perhaps contrary to compassion. Many employ assembly line procedures for the handling of the great bulk of their case load. Clients of such firms do not always have their cases handled by a lawyer. Instead, the case is handled by a case manager, typically a retired insurance adjustor, paralegal, or legal assistant. These firms contend all cases are still supervised by a lawyer behind the scenes, but that arrangement is not disclosed until after the client has already signed a legal services contract with the law firm. The simple business truth is that some lawyers bait you into their law firm with the promise of compassion only to shuffle your case off to a less qualified case manager because the lawyer is too busy to handle your case.

Fifteen years ago I worked at a TV law firm, but left of my own volition to establish a legal practice where I could provide the kind of legal services I would demand if I were the client. I won’t presume to tell you that I am compassionate. I’ll simply let the way I conduct my representation of clients to speak for me. When you select a lawyer always demand to speak to the actual lawyer handling your case before you sign a legal services contract.

Written by James A. Farson, Esq.  a partner with Lindell & Farson, P.A.
By Lindell & Farson 19 Feb, 2016
As long as it is your first arrest and you have not been adjudicated guilty of the offense, you may seek to have the arrest be sealed/ expunged. There are some instances where a “notice to appear” will be counted as an arrest. The arrest cannot include felonies nor certain misdemeanor charges such as assault, battery, firearms charges, petit theft, and child neglect.

Although you may have been arrested more than once, if those arrests arose out of a single incident, the court may expunge multiple arrests. See Oymayan v. State, 765 So. 2d 812, 813 (Fla. 1st DCA 2000) (stating “Fla. Stat. § 943.0585 (Supp. 1998) does not provide that a court may expunge records related to one arrest so long as the arrest involved but one incident. It subsequently allows the court to order expunction of records ‘pertaining to more than one arrest if the additional arrests directly relate to the original arrest.’”.

Your plea of guilty or no contest does not determine whether you have been adjudicated guilty. Even if the judge found you guilty of the offense, the judge may still have given you a withhold of adjudication permitting the arrest to be sealed and/ or expunged.

The sealing of the arrest provides that the records of your arrest are not accessible to the public, but may be subject to disclosure in special instances. The expunging of your arrest provides that the actual files are destroyed at the State Attorney’s Office, but the file is not necessarily destroyed at all other government agencies. However, it does provide that they are not accessible publicly, and that you may legally deny the arrest in most cases.

Can I deny my arrest after my case has been sealed and expunged?

Yes, in most instances. Florida statutes § 943.059(4)(a) on sealed cases and § 943.0585(4)(a) on expunged cases provide that you “may lawfully deny or fail to acknowledge the arrests covered by the sealed/ expunged record…”.

However, there are exceptions in which you must admit your sealed and/ or expunged record. The more commonly used exceptions include when you are seeking a particular area of employment such as with a criminal justice agency and other government entities in which you will have contact with children, students, the elderly, or the disabled. Also an employer or agency working with the federal government where a security clearance is required will have access to your sealed / expunged record.

There is no time limit on the sealing and/ or expunging of your case in Florida, therefore, you may deny the arrest indefinitely unless the exceptions under the statute apply. The sealing and expunging Florida statutes, including a full list of exceptions, can be found here:
Florida statute §943.059 for sealing cases: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0900-0999/0943/Sectio...
Florida statute §943.0585 for expunging cases: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0900-0999/0943/Sectio...

Written by Renee K. Holterman, Esq. an attorney with Lindell & Farson, P.A. 
By Lindell & Farson 05 Feb, 2016
All too often in my law practice I meet with injured people who end up responsible for paying hundreds of thousands of dollars in medical bills occasioned by an unexpected crash. Those who do not prepare for the unexpected through proper insurance planning can find themselves victimized twice . First, by the negligent driver who caused their injuries in a motor vehicle crash, then by the Florida legal system that places primary responsibility for paying medical bills upon the injured person.

How does the Florida legal system victimize people? Florida is one of the minority states in the U.S. that does not mandate mandatory bodily injury liability insurance for the owners of motor vehicles licensed in the state. Consequently, you are always at risk in Florida of being struck and injured by a vehicle owned and driven by an uninsured person. Let me repeat: It is not against the law in Florida to own and operate a passenger vehicle without possessing bodily injury liability insurance to cover the medical bills and other losses of those injured in the crash.

Every year in my law practice I encounter people terribly injured in motor vehicle crashes by an uninsured driver. Some of the injuries I see are severe and life changing, crippling a person to the extent that they can now longer work in their occupation. These people are typically shocked that the Florida system fails to protect them . They ask, “Can’t we just sue the responsible person and force them to pay my losses?” In theory, yes, but the real problem regards the collectability of any judgment. Even when a money judgment is successfully obtained in a Florida Court it is likely the judgment is practicably uncollectable in the absence of insurance proceeds. The strong legal protection judgment debtors receive under the applicable debtor/creditor laws effectively bars recovery and garnishment of home equity, retirement funds, and wages.

Basic insurance planning for your family can save you a lot of trouble down the road. The way to protect against this terrible risk of loss is to purchase an insurance policy for uninsured motorist (UM) benefits from your own auto carrier. Purchasing a UM policy for yourself is like purchasing bodily injury liability coverage for EVERY vehicle on the road around you in case another driver is negligent and injures you and/or your passengers in a crash. I strongly feel UM coverage is one of the most important insurance coverages for all Florida families. It is relatively cheap to purchase and provides unmatched security for drivers on Florida roads that are increasingly congested and frequented by distracted drivers.

The importance of UM coverage is sometimes downplayed by insurance carriers competing for your business based on pricing alone. They don’t always quote you a price for an insurance package containing UM coverage for fear of you going elsewhere for your insurance needs. Therefore, I recommend bringing up the issue of UM coverage yourself when shopping for insurance and making sure price comparisons are apple-to-apple before settling upon a carrier from whom to buy insurance.

Written by James A. Farson, Esq.  a partner with Lindell & Farson

Lindell and Farson

By Lindell & Farson 07 Jul, 2016

            Contracts are a part of our everyday life. The benefit of having a written contract is to make sure each party’s obligations are clearly stated. However, when the contract is drafted by someone else, you may not understand the consequences of some of the terms buried in the “fine print.” Currently, a contentious issue, and one that is often missed when flipping to the last page of a contract, involves mandatory arbitration clauses and the restrictions they impose.

            For starters, an arbitration clause requires all disputes to be settled by an arbitrator out of court rather than by either a trial by jury or by judge. Often, people are surprised to find that this clause restricts their claims to arbitration. Most of the time, unsophisticated parties such as consumers have no idea what they are truly giving up.

            Many arbitration clauses contain a consent to arbitrate in a remote location, inconvenient to everyone but the company. Such locations insulate companies from legitimate consumer claims, and impose financial impediments on such claims. Thus, it is important to determine if the location of arbitration is financially and practically viable should the need for arbitration arise. If you cannot get to the arbitration, there is likely no other form of recourse available, which can leave your issue with the company unresolved. This is often fine with the company.

            Another restriction companies can include in an arbitration clause is a restriction on class action complaints. In a recent case named McKenzie Check Advance of Florida, LLC d/b/a National Cash Advance v. Betts, Reuter, and Kelly, the Fourth District Court of Appeal in Florida held that language in an arbitration clause eliminating the availability of class action complaints is enforceable. Thus, it has now been established in Florida that an individual has no way of pursuing a class action complaint if such restrictions are present in an arbitration clause. Typically, in a class action, each member of the defined class has a similar claim to a small sum of money that would not justify an individual claim for damages. By combining their claims with other similarly-situated consumers, the class members will have the ability to obtain relief on behalf of all members of the class. With the Fourth District’s ruling in McKenzie , that ability to obtain compensation is impaired, if not eliminated entirely. It doesn’t make sense to pay court and attorney’s fees for a nominal recovery, so it is likely that compensable damages will be left unpursued, and small amounts of illegal surcharges or fees will continue to be taken from large numbers of consumers with impunity for the companies. While small amounts of recovery may not seem like a big deal, the larger picture is that these class actions are often the only way to keep large companies accountable.

  So, the question now becomes, “Is there any way to escape or reject these clauses?” Businesses include these clauses to protect themselves from claims, however, this does not mean that you cannot ask for a clause to be removed or altered. Before you sign a contract, you are free to attempt to negotiate terms in any legal way you desire. Just be prepared to either need to give something to get something, or to be presented with a simple “take it or leave it” counter-proposal. If negotiations fall through, you also always have the option to walk away. If you are truly not comfortable with agreeing to go to Kalamazoo to arbitrate or with losing your right to bring a class action claim, then don’t sign the contract. Once you sign the contract, Florida law will likely bind you to it, no matter how unfair you claim the language to be once a dispute arises. This stems from the legal understanding that every contract is bargained for, and that if the terms were truly unfair, the parties would never have come to an agreement in the first place, absent some sort of fraud or coercion.

            As has always been the case in contracts law, the signing party cannot claim ignorance as to what is included in the contract language. Sometimes you will choose to sign contracts containing an arbitration clause. Better that you understand all of the consequences before doing so.


By J. Michael Lindell, Esq.

and Christian Lake (Law Clerk)

By Lindell & Farson 14 Mar, 2016
I’ve noticed recently that some personal injury lawyers are advertising on television touting their compassion to persuade people into giving them their legal business. I wonder each time I see one of these TV commercials whether anyone is really influenced by such statements. In my experience people who are truly compassionate do not go around declaring their own compassion as a way to gain attention. Maybe because I see humility as part of genuine compassion I wonder whether it is credible to use compassion as a marketing tool.

Some of lawyers pushing compassion in their advertising messages have protocols inside their law firms that are perhaps contrary to compassion. Many employ assembly line procedures for the handling of the great bulk of their case load. Clients of such firms do not always have their cases handled by a lawyer. Instead, the case is handled by a case manager, typically a retired insurance adjustor, paralegal, or legal assistant. These firms contend all cases are still supervised by a lawyer behind the scenes, but that arrangement is not disclosed until after the client has already signed a legal services contract with the law firm. The simple business truth is that some lawyers bait you into their law firm with the promise of compassion only to shuffle your case off to a less qualified case manager because the lawyer is too busy to handle your case.

Fifteen years ago I worked at a TV law firm, but left of my own volition to establish a legal practice where I could provide the kind of legal services I would demand if I were the client. I won’t presume to tell you that I am compassionate. I’ll simply let the way I conduct my representation of clients to speak for me. When you select a lawyer always demand to speak to the actual lawyer handling your case before you sign a legal services contract.

Written by James A. Farson, Esq.  a partner with Lindell & Farson, P.A.
By Lindell & Farson 19 Feb, 2016
As long as it is your first arrest and you have not been adjudicated guilty of the offense, you may seek to have the arrest be sealed/ expunged. There are some instances where a “notice to appear” will be counted as an arrest. The arrest cannot include felonies nor certain misdemeanor charges such as assault, battery, firearms charges, petit theft, and child neglect.

Although you may have been arrested more than once, if those arrests arose out of a single incident, the court may expunge multiple arrests. See Oymayan v. State, 765 So. 2d 812, 813 (Fla. 1st DCA 2000) (stating “Fla. Stat. § 943.0585 (Supp. 1998) does not provide that a court may expunge records related to one arrest so long as the arrest involved but one incident. It subsequently allows the court to order expunction of records ‘pertaining to more than one arrest if the additional arrests directly relate to the original arrest.’”.

Your plea of guilty or no contest does not determine whether you have been adjudicated guilty. Even if the judge found you guilty of the offense, the judge may still have given you a withhold of adjudication permitting the arrest to be sealed and/ or expunged.

The sealing of the arrest provides that the records of your arrest are not accessible to the public, but may be subject to disclosure in special instances. The expunging of your arrest provides that the actual files are destroyed at the State Attorney’s Office, but the file is not necessarily destroyed at all other government agencies. However, it does provide that they are not accessible publicly, and that you may legally deny the arrest in most cases.

Can I deny my arrest after my case has been sealed and expunged?

Yes, in most instances. Florida statutes § 943.059(4)(a) on sealed cases and § 943.0585(4)(a) on expunged cases provide that you “may lawfully deny or fail to acknowledge the arrests covered by the sealed/ expunged record…”.

However, there are exceptions in which you must admit your sealed and/ or expunged record. The more commonly used exceptions include when you are seeking a particular area of employment such as with a criminal justice agency and other government entities in which you will have contact with children, students, the elderly, or the disabled. Also an employer or agency working with the federal government where a security clearance is required will have access to your sealed / expunged record.

There is no time limit on the sealing and/ or expunging of your case in Florida, therefore, you may deny the arrest indefinitely unless the exceptions under the statute apply. The sealing and expunging Florida statutes, including a full list of exceptions, can be found here:
Florida statute §943.059 for sealing cases: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0900-0999/0943/Sectio...
Florida statute §943.0585 for expunging cases: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0900-0999/0943/Sectio...

Written by Renee K. Holterman, Esq. an attorney with Lindell & Farson, P.A. 
By Lindell & Farson 05 Feb, 2016
All too often in my law practice I meet with injured people who end up responsible for paying hundreds of thousands of dollars in medical bills occasioned by an unexpected crash. Those who do not prepare for the unexpected through proper insurance planning can find themselves victimized twice . First, by the negligent driver who caused their injuries in a motor vehicle crash, then by the Florida legal system that places primary responsibility for paying medical bills upon the injured person.

How does the Florida legal system victimize people? Florida is one of the minority states in the U.S. that does not mandate mandatory bodily injury liability insurance for the owners of motor vehicles licensed in the state. Consequently, you are always at risk in Florida of being struck and injured by a vehicle owned and driven by an uninsured person. Let me repeat: It is not against the law in Florida to own and operate a passenger vehicle without possessing bodily injury liability insurance to cover the medical bills and other losses of those injured in the crash.

Every year in my law practice I encounter people terribly injured in motor vehicle crashes by an uninsured driver. Some of the injuries I see are severe and life changing, crippling a person to the extent that they can now longer work in their occupation. These people are typically shocked that the Florida system fails to protect them . They ask, “Can’t we just sue the responsible person and force them to pay my losses?” In theory, yes, but the real problem regards the collectability of any judgment. Even when a money judgment is successfully obtained in a Florida Court it is likely the judgment is practicably uncollectable in the absence of insurance proceeds. The strong legal protection judgment debtors receive under the applicable debtor/creditor laws effectively bars recovery and garnishment of home equity, retirement funds, and wages.

Basic insurance planning for your family can save you a lot of trouble down the road. The way to protect against this terrible risk of loss is to purchase an insurance policy for uninsured motorist (UM) benefits from your own auto carrier. Purchasing a UM policy for yourself is like purchasing bodily injury liability coverage for EVERY vehicle on the road around you in case another driver is negligent and injures you and/or your passengers in a crash. I strongly feel UM coverage is one of the most important insurance coverages for all Florida families. It is relatively cheap to purchase and provides unmatched security for drivers on Florida roads that are increasingly congested and frequented by distracted drivers.

The importance of UM coverage is sometimes downplayed by insurance carriers competing for your business based on pricing alone. They don’t always quote you a price for an insurance package containing UM coverage for fear of you going elsewhere for your insurance needs. Therefore, I recommend bringing up the issue of UM coverage yourself when shopping for insurance and making sure price comparisons are apple-to-apple before settling upon a carrier from whom to buy insurance.

Written by James A. Farson, Esq.  a partner with Lindell & Farson

Share by: