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Appealing an Expungement Order

  |   Expungement

Once a judge issues an order, there is an automatic 60-day stay period, which is the time period a party must appeal in order for a higher court to review the district court order. If you received an order not in your favor, you should understand what to expect if you choose to appeal it.

First, you need to understand the legal standard by which the court will review the district court’s decision. The Court of Appeals uses an abuse of discretion standard, meaning it will set aside the district court’s order only if the findings of fact are clearly erroneous. Clearly erroneous is defined as “manifestly contrary to the weight of the evidence or not supported by the evidence as a whole. In plain terms, it won’t overrule the district court unless the decision was completely and utterly baseless. Needless to say, this is a tough hurdle to overcome for anyone considering to appeal an order.

Second, as if that hurdle isn’t enough, the Court of Appeals defers to the district court’s determination regarding witness credibility. So, in the instance you had family or friends testify on your behalf, or even if you testified or spoke on your behalf, the district court’s assessment of you will control the case for the immediate order, but also for appellate review. This is an unfortunate result for anyone that has a history with a judge – which can often happen in smaller counties.

Appealing an expungement order is difficult because of the cost, time, and these two significant hurdles that must be overcome. If you received an order against you, it may be a better option to consider filing for an expungement again. Remember, there is no bar to filing a new petition – it can even be done immediately after receiving the order. If you choose this route, it’d be recommended that you consider the bases the court denied you and try to address them as best as possible – if you can – before re-filing.

If you find yourself in this position and wondering what is the best option for you, contact us immediately. We have a wealth of knowledge on this new law and have experience helping clients get an expungement when they were previously denied – even in instances where those clients were represented by an attorney for their first petition.