“I was already punished for those crimes. That’s Double Jeopardy!”

There are many myths attributable to the client’s prior record.  But before the client can espouse his mythical beliefs relating to his prior record, he first has to acknowledge that he actually has one. Many clients cannot or claim not to remember their prior record. And the longer the record is, the less they seem to recall. When they are confronted with their prior record their first response about each case is they thought it was dropped, sealed, or expunged.

Once they get passed this step and acknowledge that they do in fact have a prior record, the first myth that comes to mind is their belief that if adjudication was withheld the crime is no longer on their record (i.e. because it was dropped, sealed, or expunged), or because withholds just don’t count. The basis in truth for this myth comes from the fact that certain withholds can be sealed and ultimately expunged.  But a person is only allowed to seal or expunge one case per lifetime,88 it doesn’t just happen all by itself, and a sealed or expunged case can still be counted on a person’s scoresheet.89 A withhold for a felony charge prevents a person from losing their civil rights, which allows the person to continue to vote, serve on a jury, apply for Occupational Licenses, hold office, and bear arms.90  However, a person must still register as a felon,91 and wait three years after his sentence is over to apply for a concealed firearm’s permit, unless the felony case has been sealed or expunged.92

Some people have mythical beliefs about clemency and pardons.  They mistakenly believe that the former and latter take the charge off of a person’s record. Clemency gives a convicted felon most of his civil rights back. A convicted felon can apply for the kind of clemency that gives a person his civil rights back minus the right to bear arms as soon as his sentence is completed and complied with. But convicted felons have to wait eight years after their sentence is complete and complied with to apply for the kind of clemency that reinstates their right to bear arms.93 A person has to wait ten years until after his sentence is complete and complied with to even ask for a pardon.94 Only a full pardon includes the right to bear arms.95 But neither clemency nor a full pardon result in a convicted felon being eligible to seal and or expunge his record.96

There is also the myth that if the crime was committed along time ago it will no longer appear on a person’s record. Most clients cannot understand how their DUI from the seventies still shows up on their driving record. They think that after a certain amount of time it just magically falls off or just no longer counts. This myth has some basis in truth since some crimes can be deemed too remote in time to score on a person’s scoresheet,97 and too remote to be used for impeachment purposes.98 Also certain traffic citations that result in points on a person’s driver’s license stop counting towards a license suspension after three years,99 which may be why some people think certain crimes just vanish from their driving record.  And of course some people are lucky and certain charges do somehow get lost, destroyed or magically disappear.

Some people also believe that a person’s juvenile record will not count against them, and that all juvenile records are confidential.  For the most part this myth has for a long time been a reality, but the legislature has seen fit to make sure in certain instances a juvenile’s record is not so confidential100 or forgotten.101

Of course, the final response people give when they are confronted with their prior record and convinced it does in fact exist and count against them is that since they were already punished for those crimes they should not keep counting against them.  “That’s double-jeopardy. I already did my time for those crimes. I was already punished.”

Perhaps this is more wishful thinking than a myth, since most people when confronted agree that a person with no prior record should not be treated the same as a person who has a prior record. In fact, this is the very same argument these people made when they were first charged with a crime.  They even made this argument when their first crime was quite serious, and their lack of prior record really didn’t matter.