General Assembly passes legislation that expands expungement provisions
By Kent Williams
The General Assembly recently passed legislation that expands current expungement provisions so that ex-offenders can expunge certain nonviolent felonies from their records. Hopefully, this will help those that have been seeking jobs from immediately being rejected due to their criminal background checks and help them get employed.
If a person is convicted of an offense that is repealed, but the elements of the offense are similar to an existing offense that is eligible for expungement, then the repealed offense is eligible for expungement. Those with multiple convictions will have more flexibility to choose which conviction to expunge. In certain situations, multiple offenses arising from the same incident can be considered as one offense and treated as one conviction for expungement purposes.
Offenders with magistrate level offenses can expunge any 30 day/$1K fine as long as it is three years from conviction (to include out-of-state convictions), regardless of whether it is the first conviction. Current law only allows expungement of the first conviction. However, this still can only be used once.
Convictions that carry no more than 30 days or a fine of $1K, for first offense simple possession/PWID drugs convictions, and convictions pursuant to YOA, are eligible to be counted as one offense if they arose out of a single sentencing proceeding and are closely connected and arose out of the same incident for purposes of expungement under the expungement programs.
A person who fits the definition of youthful offender and was convicted prior to June 2010 is now eligible to get an expungement pursuant to YOA provisions. However, those that are under the YOA program whose conviction requires them to register for the sex offender registry are not eligible for expungement.
First offense simple possession of drugs, including prescription drugs, conviction can be expunged three years after the date of conviction as long as the person has had no other convictions in the three years since the completion of the sentence for the conviction for first offense simple possession conviction. A possession with intent to distribute conviction can be expunged, twenty years from the date of completion of any sentence from a drug or felony conviction. This expungement would not be available if the person had a conditional discharge within the prior five years for marijuana or ten years for any other controlled substance.
Immunity is provided to employers with respect to any administrative claim or lawsuit related to an employee’s expunged conviction. These often arise in negligent hiring, retention, and supervision claims against employers. The law makes clear that if employers somehow become aware of an employee’s expunged offense, they may not use this information adversely against the employee. SLED will maintain a database with expunged charges that will not be accessible to the general public, subject to FOIA requests, or background checks.
As always, I also want to supply you with my business phone number so that you will able to reach me easily at any time. My business phone is (843) 423-3904. Please use this information to write, call or email me with your suggestions and concerns regarding issues before the Senate and in our community.