Can an arrest made by mistake be erased in Florida?

Most record clearing in Florida runs through a judge. Administrative expunction is the exception: it is handled between the arresting agency, the State Attorney and FDLE, and it exists for the arrest that should not have happened at all. It is narrow, it depends on the cooperation of the people who made or prosecuted the arrest, and it is worth knowing about before anyone spends the once-in-a-lifetime court-ordered remedy. The court-ordered options, and how Mr. Mead handles record clearing, are on our records expungement page.

What does section 943.0581 say?

The statute has six parts, and each one matters to how an application is built:

• The power (subsection 1). FDLE may adopt a rule for the administrative expunction of "any nonjudicial record of an arrest of a minor or an adult made contrary to law or by mistake." It does this notwithstanding the general public records laws on preserving and destroying records.
• The agency's duty (subsection 2). A law enforcement agency "shall apply" to FDLE when the agency, at its discretion, or a final order of a court determines that a person was arrested contrary to law or by mistake.
• The person's own application (subsection 3). An adult, or the parent or legal guardian of a minor, may apply, but only if the application is supported by the endorsement of the head of the arresting agency or his or her designee, or the State Attorney of the circuit where the arrest occurred or his or her designee.
• The contents (subsection 4). The application includes the date and time of the arrest, the name of the person arrested, the offender-based tracking system (OBTS) number and the crimes charged, on the submitting agency's letterhead, signed by the agency head or a designee.
• Warrants (subsection 5). If the arrest was on a warrant, capias or pickup order, the request may come from the sheriff of the county where it was issued, or the State Attorney of the circuit where it was issued, or their designees.
• No admission (subsection 6). An application or endorsement "is not admissible as evidence in any judicial or administrative proceeding" and may not be treated as an admission of liability for the arrest.

FDLE lists administrative expungement first among the forms of relief on its seal and expunge page, describing it as an arrest, adult or juvenile, "made contrary to law or by mistake" that "may be expunged by applying to FDLE," under s. 943.0581 and Rule 11C-7.008, Florida Administrative Code.

How does it work, step by step?

1. The finding. Rule 11C-7.008(2) requires one of two things: the arresting agency has determined that the arrest was made contrary to law or by mistake, or a court of competent jurisdiction has entered a final order finding that it was. The person arrested cannot make that finding alone.
2. Who applies. Either the arresting agency applies on its own letterhead, signed by its head or chief law enforcement officer or an authorized designee, or the person (or a minor's parent or guardian) applies in writing and states his or her relationship to the person arrested (Rule 11C-7.008(3)).
3. The endorsement. A person's own application must carry a written endorsement on agency letterhead, signed by the head of the arresting agency or the State Attorney of the circuit where the arrest occurred, or an authorized designee (Rule 11C-7.008(4)). In Palm Beach County that is the State Attorney for the 15th Judicial Circuit, in Broward the 17th, in Miami-Dade the 11th and in Martin the 19th. The local offices and courthouses are described on our Palm Beach County criminal defense page and its sister county pages.
4. The identifying details. The application or endorsement identifies the arrest by name and aliases, sex and race, date of birth, Social Security number if available (not mandatory), date and time of arrest, original charges, FDLE and FBI numbers if known, OBTS number, and the reason for administrative expunction (Rule 11C-7.008(5)).
5. FDLE acts. When the application meets the statutory requirements, FDLE notifies the arresting agency, which expunges its own records of the arrest and notifies any other agency it gave the record to (Rule 11C-7.008(7)).

Neither the statute nor the rule sets a fee or a processing time for administrative expunction, and FDLE's page does not state one. That is different from court-ordered relief, which carries a $75 FDLE fee and a published processing time, as explained in how long it takes to seal or expunge a record in Florida.

What counts as an arrest "contrary to law or by mistake"?

The statute does not define the phrase, and neither does the rule. What the law does make clear is who decides: the arresting agency, "at its discretion," or a court by final order (s. 943.0581(2)). A person who believes the arrest was a mistake has no way to force the agency to agree under this section. That is why the first conversation is often with the agency or the State Attorney's office, with the paperwork that shows what went wrong.

It also helps to be clear about what the phrase is not. A case that was dropped, dismissed or ended in an acquittal is not automatically an arrest made by mistake; the officer may have had probable cause even though the case did not go forward. Those outcomes have their own remedies. Many are sealed automatically by FDLE when the clerk transmits the disposition, unless a forcible felony or a listed sex offense was charged, as explained in whether your Florida record is already sealed automatically. Others may qualify for court-ordered sealing or expunction under the conditions set out in whether you are eligible to seal or expunge your record.

A record that is simply wrong is a different problem again. Rule 11C-7.008(9) says the procedure for correcting a criminal history record is in chapter 11C-8, and that non-criminal arrest records mistakenly or improperly forwarded to FDLE as criminal history records will be removed by FDLE as an administrative correction. The correction process, through FDLE's Personal Review, is described in what you can do if FDLE denies your certificate of eligibility.

What changes the answer?

• Agency discretion. The agency decides "at its discretion" whether the arrest was contrary to law or by mistake, unless a court has entered a final order finding it (s. 943.0581(2)).
• The endorsement. Your own application fails without the written endorsement of the arresting agency's head or the State Attorney, or a designee (s. 943.0581(3); Rule 11C-7.008(4)).
• Warrant arrests. When the arrest was on a warrant, capias or pickup order, the sheriff or State Attorney where the paper was issued may make or endorse the request, which matters when the warrant came from another county (s. 943.0581(5)).
• Minors. A parent or legal guardian applies for a minor (s. 943.0581(3)). Other juvenile remedies, including automatic expunction at 21 or 26, are in whether a juvenile record can be expunged.
• Nonjudicial records only. The statute reaches the "nonjudicial" record of the arrest. By its terms it does not speak to the court file, which the courts control under their own procedures (s. 943.0585(4)(a)). How a court file becomes confidential is covered in whether sealing removes a case from the clerk's website.
• Self-defense. An arrest that the State Attorney finds was lawful self-defense is handled under a different statute, s. 943.0578, explained in whether a self-defense arrest can be expunged.
• Private websites. FDLE says no order can remove mugshots and arrest information on privately operated websites, and it has no authority over those companies. Florida's booking photo removal law is covered in how to get a mugshot taken down.

A worked example

For example, take a hypothetical Hollywood resident who is stopped on a traffic violation and taken into custody on a warrant from another county, and it turns out the warrant was for a different person with a similar name and date of birth. The case against him is never filed. Because the arrest was on a warrant, s. 943.0581(5) lets the sheriff of the county, or the State Attorney of the circuit, where the warrant was issued make or endorse the request for administrative expunction. He gathers his booking paperwork and identification, and asks that office to send FDLE a letter on its letterhead identifying the arrest by date, time, OBTS number and charge, with the reason. If FDLE finds the request meets the statute, it notifies the arresting agency, which expunges its records and tells the agencies it shared them with. His one court-ordered sealing or expunction stays available. This is a hypothetical illustration of the statute and rule, not a client's case or a prediction.

Common mistakes people make

• Assuming a dismissal means the arrest was a mistake, when the statute requires the agency's determination or a court's final order.
• Sending a personal application to FDLE with no endorsement from the agency head or the State Attorney.
• Leaving out the OBTS number, date and time of arrest, or the original charges, which the statute and rule require.
• Asking the wrong office: for a warrant arrest, the sheriff or State Attorney where the warrant was issued may act.
• Using the one lifetime court-ordered sealing on an arrest that the agency would have agreed was a mistake.
• Expecting administrative expunction to clear private websites or, by its terms, the court file.

What to do this week

1. Get a copy of the arrest report and booking record, and note the arresting agency, date, time and charges.
2. Find the OBTS number if you can, and any FDLE or FBI number on the paperwork.
3. Write down, with documents, exactly why the arrest was contrary to law or a mistake.
4. Identify who can endorse: the head of the arresting agency, or the State Attorney of the circuit where you were arrested; for a warrant, the sheriff or State Attorney where it was issued.
5. Check whether the case was already sealed automatically, and order a certified disposition from the clerk.
6. Talk to a lawyer about whether to approach the agency or State Attorney first, and what to do if they decline.

Frequently asked questions

Does administrative expunction count as my one sealing or expunction?

No. FDLE's FAQ says administrative expungement under s. 943.0581 does not prevent a person from later seeking a court-ordered sealing or expunction under ss. 943.059 or 943.0585.

Can the police department apply without me?

Yes. The statute says a law enforcement agency "shall apply" to FDLE when it determines, at its discretion, or a court finds by final order, that the person was arrested contrary to law or by mistake (s. 943.0581(2)).

Is the endorsement letter an admission that the police did something wrong?

No. The statute says an application or endorsement is not admissible as evidence in any judicial or administrative proceeding and may not be construed as an admission of liability (s. 943.0581(6); Rule 11C-7.008(8)).

Can a parent apply for a child's arrest?

Yes. A parent or legal guardian may apply for a minor, with the same endorsement requirement, and the written application must state the signer's relationship to the minor (s. 943.0581(3); Rule 11C-7.008(3)).

What if the agency says no?

The agency's determination is discretionary, and s. 943.0581 does not describe a way to appeal it. A court's final order finding the arrest contrary to law or by mistake is the other trigger, and the court-ordered and automatic sealing routes remain available if the record otherwise qualifies.

Do I need to send FDLE a fee?

Neither s. 943.0581 nor Rule 11C-7.008 states a fee for administrative expunction, unlike the $75 processing fee the statutes set for a certificate of eligibility for court-ordered relief.

How can Mr. Mead help?

Mr. Mead has more than three decades of criminal defense experience in South Florida, in Palm Beach, Broward, Miami-Dade and Martin counties. When an arrest looks like a mistake, he reviews the arrest paperwork and the case outcome, identifies who can make or endorse the request, and weighs it against automatic and court-ordered sealing so the client's one court-ordered remedy is not used without need. No result can be promised, and the agency's decision is its own. The consultation is free, and you can call (561) 362-6677 24 hours a day.

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