Expungements General Guidelines for Expungement - PowerPoint Presentation

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Expungements

General Guidelines for Expungement

KSA 21-6614

Generally, there are 3 different requirements for length of time to become eligible for expungement.

3 years

5 years

Ineligible

Depending on the level of offense, disposition of the case, and registration requirements, the date from which this period is calculated can differ.

General Guidelines for Expungement

To determine statutory eligibility, look at the disposition of the case.

Petitions may be made after the appropriate amount of time has elapsed since the person:

Satisfied the sentence imposed; or

Was discharged from probation, a Comm. Correctional Program, parole, postrelease, conditional release, or a SIS

KSA 21-6614(a)

General Guidelines for Expungement

3 year requirement

Traffic/Tobacco infractions

Misdemeanors

Class D/E felonies

If crime committed on or after 7/1/1993

Any non-grid felony or felony ranked 6-10

If committed 7/1/93--7/1/12

Level 4 of drug grid

If committed on or after 7/1/12

Any felony Level 5 of drug grid

If diverted, may petition 3 years after successful termination date

General Guidelines for Expungement

5 year requirement

A, B, C felonies

On or after 7/1/1993

Off-grid felonies, or levels 1-5 of the non-drug grid

On or after 7/1/93 but before 7/1/12

Levels 1-3 of the drug grid

On or after 7/1/12

Levels 1-4 of drug grid

Additional miscellaneous charges

DWS, Vehicular Homicide, Perjury, Felonies involving vehicles, Leaving the scene of an accident--KSA 21-6614(c)(1)-(8)

DUI Expungements

This has changed many times over the years

10 years, 7 years, 5 and 10 years, no expungements whatsoever

Currently--KSA 21-6614(d)(1)-(2)

5 years for 1st time DUI

10 years for 2nd or subsequent DUI

House Bill 2085

As of 2017, the Legislature addressed the convoluted nature of DUI expungements

Current statute applies to all violations committed on or after 7/1/06

Makes this retroactive

TL;DR--No more cases of DUI not being expungeable whatsoever from 2006 on.

Expungements not allowed...EVER

No expungements are allowed for convictions of the following (including attempted crimes), KSA 21-6614(e)(1)-(18):

Rape

Indecent Liberties/Agg Indecent Liberties/Criminal Sodomy

Agg/Indecent solicitation of a child, Sexual exploitation of a child

Agg Incest

Agg/Child Endangerment, Abuse of a child,

Capital murder, Murder 1st, Murder 2nd (pretty much any murder)

Voluntary/Involuntary manslaughter

Sexual battery if victim was less than 18, Agg Sexual Battery (no age req.)

Commercial DUI, including diversions (which aren’t typically allowed)

Any conviction prior to 7/1/11 that is comparable to any above

Findings Necessary for Expungement

KSA 21-6614(h)(1)-(3):

No felony conviction in past 2 years, and no pending felony currently

circumstances/behavior warrant expungement

Consistent with the public welfare

Factors Considered by the Court

Prior and subsequent criminal history

Falls under the behavior requirement

Performance on probation/diversion/parole/etc

Courts may consider this as it shows whether or not a person was serious regarding reformation.

Also shows an indication of future behavior

Reasons for wanting the conviction expunged

Many times this is related to employment and housing

Life changes made since the conviction

Education, volunteer work, counseling/treatment, family involvement

Seriousness of the offense for which expungement is sought

Whether or not the Court feels comfortable about the public not having this knowledge, and if the Court feels this would endanger the public

Expungement and Registration

Registration offenses can affect a petitioner’s eligibility for expungement.

KSA 21-6614(f):

Any offender required to register under KORA, cannot have any conviction

or any part of the offender’s criminal history

expunged during the registration period.

Took effect in 2012. However, this wasn’t always the case.

Previous cases involved pre-2012 registration offenses. Expungement subsequently wipe away the conviction. The Court found that this wiped away the requirement to register as there was no conviction to trigger KORA.

But, expungements do not always mean that a person is treated the same as a person that was never convicted...

Expungements and Firearms

KSA 21-6614(k)(2)

Expungement of a prior felony does

not

relieve individual of complying with any state or federal law relating to use/shipment/transportation/receipt/possession of a firearm.

Kansas statute addresses expungement in KSA 21-6304(a)(3)(A)

However, other States or Federal law might have provisions regarding restrictions on firearms for those that were convicted of a felony.

Criminal History in Subsequent Cases

Upon successful petition, a person is treated as not having been convicted of the crime. However, that prior conviction can still be used for various reasons.

Prior convictions can be used to calculate criminal history scores

Expunged convictions must be disclosed during the application process for various law enforcement, firearms and investigatory jobs

Any application for admission or reinstatement to the Bar

Kansas Lottery employment

Racing and Gaming employment

Conceal carry permit

Applications for Commercial DL’s

If prior conviction is an element of a subsequent offense, disclosure is allowed

The Court, in the order, may specify when disclosure is allowed

Expungement Recap

Identify the conviction and severity level

Calculate length of time since they satisfied their sentence/probation/diversion/postrelease/SIS

Ensure they have no pending felonies or felony convictions within the past 2 years and that expungement is allowed for this offense

Check for any issues on bond, probation, parole, or postrelease that would weigh negatively against them during expungement

Gather information regarding steps taken since the offense and efforts at reformation