Thank you for the opportunity to assist you.
Q) Will this arrest and jail time remain on his criminal record? And if so how do we get it expunged
: It's too early to request an expunction at this time.
An expunction is the removal of a record from a person's criminal
history (i.e. his "rap sheet"). Expunction applies to any entry in a criminal history, including convictions, arrests, records of jail time, being on probation, etc.
Expunction law is different in every state. Texas expunction is controlled by the Texas Code of Criminal Procedure section 55.01
. Texas allows expunction generally under the following scenarios:
1) An arrest for a crime that was eventually not charged
2) A charge that was dismissed or for which the accused was found not guilty
3) Certain misdemeanor juvenile
4) Convictions for truancy (failing to attend school)
5) Arrest or charge of a person whose identity had been stolen by another individual
6) A conviction that is later overturned by an appellate court
7) A conviction that receives a pardon by the governor or by the U.S. President
As you can see, most all adult convictions are ineligible for expunction. Also, expunction is not a right or guaranteed win. It's not as easy as going to the courthouse and filling out a form.
Assume for argument sake that the DA never charges your son. Your son would probably qualify for an expunction under section (1) above. Nonetheless, he still
has to wait until the statute of limitations has expired for, and he can longer be charged with, the particular charge.First degree
felony possession of a controlled substance has a 3 year statute of limitations, according to Texas Code of Criminal Procedure 12.01(7)
. Thus, if your son is not charged, he must wait at least three years to apply for expunction.
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