Expungement Update
One of the most common areas of law that I receive phone calls about is the expungement of criminal convictions.
What is an expungement?
An expungement removes an arrest and/or a conviction from an individual’s state and federal criminal history. A federal criminal history, commonly referred to as an NCIC, is not available to the general public. It is used by law enforcement and various federal and state agencies. A state criminal history, at least in South Carolina, is available to the general public. In South Carolina, SLED is responsible for maintaining the state criminal history database.
What is eligible for expungement?
An individual can have an arrest expunged from their record if the charge has been dismissed or the individual has been found not guilty. A person who successfully completes PTI (Pre Trial Intervention), AEP (Alcohol Education Program) or a conditional discharge can have their record expunged.
Certain criminal convictions are also eligible for expungement. A first offense conviction for a crime that carries a maximum sentence of up to 30 days may be expunged if three years passes from the date of conviction and the individual has no other criminal convictions within that three-year period. A first offense conviction for Domestic Violence 3rdDegree is eligible to be expunged if five years passes from the date of conviction and the individual has no other criminal convictions within that five-year period. A first offense fraudulent check conviction is eligible to be expunged if one year passes from the date of the conviction and the individual has no other convictions within that one-year period.
A first offense conviction for Failure to Stop for Blue Light may be expunged after three years has passed from the end of the individual’s sentence, if the individual has no criminal convictions during that three-year period.
A first offense conviction under a YOA (Youthful Offender Act) sentence is eligible for expungement after five years has passed from the end of the individual’s sentence, if the individual has no criminal convictions during that five-year period.
What are the recent changes to the expungement law?
The South Carolina Legislature recently passed a bill to expand expungements in South Carolina.
First Offense Summary Court Convictions:
One of the major amendments was the addition of the following language to define a conviction as a situation “. . . which the individual received sentences at a single sentencing proceeding that are closely connected and arose out of the same incident may be considered as one offense and treated as one conviction for expungement purposes.” This is a vast improvement as it allows for more than one conviction to be expunged, so long as all of the convictions arise out of the same incident. For example if an individual is convicted of Assault and Battery 3rdDegree and Disorderly Conduct because they got into a fight with someone while intoxicated or otherwise acting in a disorderly manner, both charges can be expunged.
An additional change to the law, is that a first offense summary court conviction is not eligible for expungement if the individual has pending criminal charges.
First Offense YOA Convictions:
The same change was made to the YOA expungement statute. A conviction is defined as any number of offenses for which the individual received a youthful offender sentence at a single sentencing proceeding for offenses that are closely connected and that arose out of the same incident may be considered and treated as one conviction for expungement purposes.
First Offense Drug Convictions:
Under the new law, certain first offense drug convictions are eligible for expungement. A first offense conviction for a drug possession charge may be expunged three years from the date of the completion of the sentence, if the individual has no other convictions during that three-year period.
A first offense conviction for possession with the intent to distribute may be expunged twenty years after the completion of the sentence, if the individual has no drug convictions or felony convictions during that twenty-year period.
A charge is not eligible for expungement if the individual had a conditional discharge within the five years prior to the date of arrest for the charge sought to be expunged if the charge sought to be expunged is simple possession of marijuana, or within ten years prior to the date of the arrest for the charge sought to be expunged if the charge sought to be expunged is possession of a drug other than simple possession of marijuana or possession.
Similar to first offense summary court convictions, a first offense drug charge is not eligible for expungement if the individual has pending criminal charges.
Contact John today if you would like to discuss your situation and see if you are eligible for an expungement.
