Expungement Lawyer in Overland Park
What does the term "Expungement" mean?
After a person has been convicted of a crime or completed a diversion for a charged offense, there is a criminal record that is created, and that criminal record is generally maintained with the Kansas Bureau of Investigation (KBI). The KBI is the central repository for all criminal records in Kansas. Whenever a person seeks to get that record taken down, whether because they are trying to get a new job or it’s preventing them from going to a preferred school or enjoying some sort of right that they would otherwise be able to enjoy, then they are looking for an expungement.
Expungement is not available in every state; however, it’s available in Kansas for a wide variety of crimes. What an expungement does is it takes a criminal record and seals it from public view. This does not mean that you can expunge your record where it will not be available for law enforcement purposes. But generally, that doesn’t matter to people who are seeking an expungement. For most people, if you want to get your record expunged, it is because you want to do something new, get a better job or a better place to live.
What does an Expungement do?
The short answer: It undoes your conviction.
The full answer to this question can be found by reading: State v. Divine, 246 P.3d 692 (Kan. 2011). If you would like to read more click the link for the full case summary. This case explored the topic of expungement and what the effect of an expungement was on a defendant. In exploring this issue, the court concluded that the general effect of an expungement order was that the individual asking for expungement shall thereafter be treated as not having been arrested, convicted, or diverted of the crime. Id. at 692.
Who decides if I get an Expungement?
The short answer is: It is up to the Judge.
The answer to this question is found by reading: State v. Underwood, 615 P.2d 153 (Kan. 1980). If you would like to read more click the link for the full case summary. This case explored the issue of who decides if a defendant gets an expungement. In exploring this issue, the court concluded that the granting or denial of an application for expungement of a conviction was up to the court. Id. at 158.
What can the Judge consider when deciding if you get an Expungement?
The short answer: 1) Your criminal history, (2) your behavior; and (3) the expungement is consistent with the public welfare.
The answer to this question is found by reading State v. Gamble, 891 P.2d 472 (Kan. Ct. App. 1995). If you would like to read more click the link for the full case summary. In summary the Court examined the expungement statute and relied on the statutory factors.
How long does an expungement generally take from "Start" to "Finish"?
The short answer: 8 to 12 weeks.
Sometimes you can get it done faster in some municipal courts; but if it’s in a district court, 8 to 12 weeks are standard. It is always best to get things expunged when you can, if you wait until you need to get it it expunged for a job opportunity it is often too late as the process takes a considerable about of time.
Do Expungements apply to just convictions or can you expunge an arrest record as well?
There are actually two different statutes. One is for expunging a crime for which you were never convicted, and the other one is for expunging crimes that you were convicted of. One of the main differences is that for the crime that you were never convicted of, you can apply for the expungement of that immediately. You don’t have to wait for a prescribed period of time. Other than that, they are fairly similar.
What is the law on expungement of ARREST records?
KS 22-2410 is a Kansas statute that discusses the expungement of arrest records. According to the statute, any person who has been arrested in the state of Kansas may petition (thereby, becoming a petitioner) the district court for the expungement of such arrest record. Additionally, if a person has been arrested in Kansas as a result of mistaken identity (wrongful arrest of a person for a crime as a result of misidentification by a witness or law enforcement agent) or as a result of another person using the identifying information of the named person, and the charge against the named person is dismissed or not prosecuted, the court should order the arrest record of the person expunged.
When a petition for expungement is filed, the court sets a date for a hearing to determine whether the arrest record of the petitioner should be expunged or not. During the hearing, any person who may have relevant information about the petitioner (including the prosecuting attorney and arresting officer) may testify at the hearing. Furthermore, a petitioner must pay a one time fee of $176.
A petition for expungement must include the following:
The petitioner’s full name
The full name of the petitioner at the time of arrest, if different than the petitioner’s current name
The petitioner’s sex, race, and date of birth
The crime for which the petitioner was arrested
The date of the petitioner’s arrest
The identity of the arresting law enforcement agency.
At the hearing of the petitioner, a court should order the arrest record expunged upon finding:
The arrest occurred because of mistaken identity
A court has found that there was no probable cause for the arrest
The petitioner was found not guilty in court proceedings
The expungement would be in the best interests of justice and charges have been dismissed or no charges have been or are likely to be filed.
What is the law on getting a Conviction or Diversion expunged for a low-level crime in Kansas?
KSA 21-6614, is a Kansas statute that discusses the expungement of certain convictions, arrest records and diversion agreements. According to the statute, any person convicted in Kansas of a traffic infraction, cigarette or tobacco infraction, misdemeanor, or less serious felony may petition the court asking for the expungement of such conviction or related arrest records if three or more years have elapsed since the person either satisfied the sentence imposed; or was discharged from probation, a community correctional services program, parole, post-release supervision, conditional release or a suspended sentence.
Additionally, a person who has fulfilled the terms of a diversion agreement may petition the district court for the expungement of such diversion agreement and related arrest records if three or more years have elapsed since the terms of the diversion were fulfilled. In general, these are the convictions that can be expunged after 3 years.
(1) A Traffic infraction committed on or after July 1, 1993
(2) A Cigarette or Tobacco infraction committed on or after July 1, 1993
(3) A Misdemeanor committed on or after July 1, 1993.
(4) A Class D Felony committed on or after July 1, 1993.
(5) A Class E felony committed on or after July 1, 1993.
(6) A non drug crime ranked in severity levels 6-10 committed on or after July 1, 1993.
(7) A felony ranked in severity level 4 on the drug grid committed on or after July 1, 1993.
What is the law on getting a Conviction or Diversion expunged for a serious crime in Kansas?
If the person was convicted of a more serious felony, he or she may not petition for expungement until five or more years have elapsed since the person satisfied the sentence imposed or was discharged. Some of these more serious felonies include vehicular homicide, perjury, or any crime punishable as a felony wherein a motor vehicle was used in the performance of such crime.
If the person was convicted of a first violation of driving under the influence, he or she may not petition for expungement until five or more years have elapsed since the person satisfied the sentence imposed or was discharged. If the person was convicted of a second or subsequent violation of driving under the influence, the person cannot petition for expungement until 10 or more years have elapsed since the person satisfied the sentence imposed or was discharged.
In general these are the crimes that you have to wait 5 years to expunge.
(1) A Class A Felony committed on or after July 1, 1993.
(2) A Class B Felony committed on or after July 1, 1993.
(3) A Class C Felony committed on or after July 1, 1993.
(4) An off-grid Felony committed on or after July 1, 1993.
(5) Any non drug crime ranked in severity levels 1-5 committed on or after July 1, 1993.
(6) Any felony ranked in severity level 1-3 off the drug grid committed on or after July 1, 1993.
(7) Vehicular homicide in violation of (K.S.A.21-3405) committed on or after July 1, 1993.
(8) Driving while suspended in violation of (K.S.A. 8-262) committed on or after July 1, 1993.
(9) Making False Affidavit Perjury in violation of (K.S.A. 8-261A) committed on or after July 1, 1993.
(10) Violating the provisions of the fifth clause of (K.S.A. 8-142) to use false or fictitious name or address.
(11) Any crime punishable as a felony wherein a motor vehicle was used in the course of the crime.
(12) Failing to stop at the scene of an accident and perform duties required by (K.S.A. 8-1602)
(13) Violation of (K.S.A. 8-1603)
(14) Violation of (K.S.A. 8-1604)
(15) Violation of (K.S.A. 40-3104) (Failure to have vehicle insurance)
(16) Violation of (K.S.A. 21-2405b) (Vehicular Battery)
How long do I have to wait to Expunge a diversion?
The short answer is: You have to wait the same period of time that you would have had to wait if convicted of the same offense.
The answer to this questions is found by reading, State v. Yrigolla, 175 P.3d 276 (Kan. Ct. App 2008), If you would like to read more click the link for a full case summary. In short, the court held that the same time limitations put on expungement of convictions applied to diversions as well.
What are the eligibility requirements to file for an Expungement?
There are three considerations. You have to look at the crime that the person was convicted of, when the person was convicted and when they got off probation or parole. After you know those three things, you can usually determine whether a person is going to be eligible for an expungement. Just because you are eligible to apply for an expungement or file a petition for it does not mean that it’s always going to be granted. You have to wait a prescribed period of time, and that prescribed period of time depends on the severity of the crime. Obviously, in more severe crimes, you have to wait longer. The Kansas state legislature has basically listed every single crime and how long you have to wait, and they’ve also listed if it’s expungable at all.
After you get past those three considerations, you have to look at whether the person has been convicted of any felonies in the last two years, which bars them from applying for an expungement. Then they also have to show that it’s in the interest of justice or the public good that they get this record taken down. This is usually the biggest hurdle because most people won’t apply if they don’t qualify by the statute because it’s useless to apply for something you know you can’t get. What they’re generally trying to prove is if it’s in the public interest or the public good to keep this off their record.
How does an Expungement differ from a Sealed Record or a Pardon?
A lot of people use those terms interchangeably but they don't mean the same thing. Most people don’t go for a pardon in Kansas; in Missouri, it’s another story, but a pardon is usually for somebody that’s going to be sitting in prison, unless the governor issues a pardon as part of the process to let them out. A pardon basically undoes their crime or forgives them for their crime. Getting a record sealed is usually in a civil context, such as if there is some sort of information, such as trade secrets or proprietary information, that a business or individual has a strong interest in keeping out of the public view. If some information that needs to be protected is “filed” in a case then the a party may seek to get that filing “sealed.” Since all or most civil cases are public record, an individual would have their lawyer seek to get the record sealed, which would prevent someone from just going up to the courthouse and obtaining copies of that information that’s in the file. What the expungement statute does is take a criminal offense and make it not viewable to the public.
What information has to be in every Expungement Petition?
A petition for expungement must include the following from the petitioner:
Full name
Full name at the time of arrest, conviction or diversion, if different than the petitioner’s current name
Sex, race, and date of birth
Crime for which the petitioner was arrested, convicted or diverted
Date of the arrest, conviction or diversion
Identity of the convicting court, arresting law enforcement authority or diverting authority.
Additionally, a fee of $176 is required and the Supreme Court may impose an additional charge, not to exceed $19 per case. Furthermore, any person who may have relevant information about the petitioner may testify at the expungement hearing.
What happens at the Expungement Hearing?
At the hearing, the court shall order the petitioner’s arrest record, conviction, or diversion expunged if the court finds that: (1) the petitioner has not been convicted of a felony in the past two years and no proceeding involving any such crime is present pending or being instituted against the petitioner; (2) the circumstances and behavior of the petitioner warrant the expungement; and (3) the expungement is consistent with the public welfare. If the court orders an arrest record, conviction, or diversion expunged, the petitioner should be treated as not having been arrested, convicted, or diverted.
There are certain situations where an expunged record, conviction, or diversion is treated as if the person had been arrested, convicted, or diverted. For example, if the person is convicted of a later crime, the conviction that was expunged may be considered as a prior conviction in determining the sentence imposed. Also, the person may have to reveal the expunged conviction if he or she is applying for a license as a private detective.
A person shall be informed of his or her ability to expunge whenever he or she is convicted of a crime or enters into a diversion agreement. If a person does get his or her arrest record, conviction or diversion expunged, the person does not have to disclose these in any application for employment, license, or any appearance as a witness.
There are only certain instances where an expunged arrest record, conviction, or diversion should be revealed and these include the person who was expunged asking for the arrest record or the court asking for the arrest record.
What happens when the Court grants your request for an Expungement?
When the court has ordered expungement of an arrest record, the order should direct the Kansas Bureau of Investigation to remove the arrest information from any databases that might keep track of the arrest record. Additionally, the Kansas Bureau of Investigation is ordered to notify the FBI, the security of corrections and any other criminal justice agency that may have a record of the arrest. In short, if an order of expungement is entered, the person should be treated as not having been arrested.
If an arrest record is expunged because it is in the best interest of justice, there are certain situations where a court may make such arrest records available if it is in the interest of public welfare. Some of these situations include: in any application for employment as a detective with a private detective agency, in any application for admission to the practice of law, and in any application for a commercial driver’s license.
Additionally, a court can make all expunged records and related information available to the Kansas Bureau of Investigation for the purposes of: (1) completing a person’s criminal history record information; or (2) providing information to the FBI, in connection with the national instant criminal background check system, to determine a person’s qualification to possess a firearm.
Furthermore, if a person’s arrest record has been expunged, they may state that they have never been arrested in any application for employment, license, or any appearance as a witness.
Can convictions automatically be Expunged after a waiting period?
The short answer: NO.
People get confused between their driving record and their criminal record. It is a common misconception that convictions fall off your record. Most people have experience with traffic violations and they are told by their insurance carrier that the convictions, “fall off their record” after a certain amount of time. In reality the convictions never fall of your record the insurance carrier just stops considering them after a certain time. This “advice” has somehow bled over to criminal cases and it is 100% inaccurate. As far as criminal convictions they never come off your record, including juvenile convictions. The only way you can get them off your record is to file for an expungement.
Are some convictions easier than others to get Expunged?
Obviously, lower level offenses are going to be easier to expunge because they have less of a negative stigma associated with them. For example, marijuana possession is going to be a lot easier to expunge than an aggravated robbery case because it has a lower level of culpability. Kansas basically breaks down four crimes into four different groups for expungements.
How does a "New" criminal record impact an Expungement petition?
If you’ve been convicted of a felony in the last two years, you can’t apply for an expungement. Your current or more recent criminal activities will be a straight bar if it’s a felony within the last two years. Other than that, a lot of times, you can still work around a subsequent criminal offense. If it’s something completely unrelated, such as if you’re trying to expunge an old felony theft case and two years ago, you were busted for marijuana possession, the judge may let you expunge the felony off your record. The judge’s response may be, “You can deal with expunging the newer offense down the road.” But obviously, it doesn’t take a rocket scientist to figure out that if you have a lot of recent criminal history and you’re trying to clear up old criminal history, the judge is not going to look favorably on recent criminal activity.
Can I Get An Expungement If I Have A Pending Case ?
The short answer: NO.
The answer can be found by reading: Pope By and For Juby v. Ransdell, 833 P.2d 965 (Kan. 1992). If you would like to read more click the link for the full case summary. This case explored the issue of whether a person could get an expungement if he or she had a case pending. . In exploring this issue, the court concluded that the court shall order a person’s conviction expunged if, among other things, it was found that no legal proceeding involving any such crime was pending or being instituted against the person. Id. at 975.
If I cannot get an Expungement if I have a pending case, what does the term “Pending Proceeding” mean?
The answer can be found by reading: State v. Gamble, 891 P.2d 472 (Kan. Ct. App. 1995). If you would like to read more click the link for the full case summary. This case examines that what "pending proceeding means" the court held that being on probation in another jurisdiction satisfied the bar to expungement that you could not have a pending proceeding. The Court further said, any criminal case in which a final decision had not been made was likely a "pending proceeding."
What are the common misconceptions about the Expungement process?
People think that if they get an expungement, their gun rights will get restored immediately; people think that if they get an expungement that will somehow clear up or make their criminal history score lower if they have a current case. People think that an expungement happens quickly: that you can just pay a lawyer, and in a few days or even a week or two you get an expungement processed. There are quite a few different things that people have problems with or don’t understand right from the get-go.
Can the State use an Expunged case against me if I get a New Case?
The short answer: Yes.
The answer can be found by reading: State v. Riedel, 752 P.2d 115 (Kan. 1988). If you would like to read more click the link for the full case summary. In short, the court held that expunged cases still count toward your criminal history score if sentenced on a new case and if proving that you were convicted of the expunged case is an element of the new case then it can be used against you. For example, an expunged DUI case still counts as a prior in a new DUI case.
Can I get an expungement if I am a Registered Sex Offender?
As long as a person is required to register in the Kansas Offender Registration Act, a court cannot expunge any conviction or any part of the person’s criminal record until the person is no longer required to register.
What are the remedies available to someone who is Not Eligible for an Expungement?
Any remedies would depend on why you’re not eligible. If you’re ineligible because you haven’t waited the statutory period of time, then it’s an easy fix: you just wait a little bit longer. If you are ineligible for another reason, there is nothing that says you can’t file it again. For example, if you go in front of the judge, and the judge says, “No, I don’t think that it’s in the interest of justice at this time for you to get the record expunged,” you can go in court the very next day and file the petition again. Most of the time, you want to wait a little bit of time just to correct whatever insufficiencies the judge listed as to why the petition wasn’t granted. But you can re-file it again and again until it’s finally granted.
Could an expunged case ever be used against me in a civil case?
The short answer: Probably not
The answer can be found by reading: Pope By and For Juby v. Ransdell, 833 P.2d 965 (Kan. 1992). If you would like to read more click the link for the full case summary. In this case a civil lawyer wanted to use prior criminal acts that were expunged to impugn the credibility of a witness. The court didn't allow the expunged crimes to come in but didn't completely preclude the possibility of such use in the future.
What Convictions can never be expunged?
(1) Rape in Violation of (K.S.A. 21-3503)
(2) Indecent Liberties with a Child (K.S.A 21-3503)
(3) Aggravated Indecent Liberties with a Child (K.S.A 21-3504)
(4) Criminal Sodomy (K.S.A 21-3505(a)(2) or (a)(3))
(5) Aggravated Criminal Sodomy (K.S.A. 21-3510)
(6) Indecent Solicitation of a Child (K.S.A. 23-3516)
(7) Aggravated Indecent Solicitation of a Child (K.S.A. 21-3511)
(8) Sexual Exploitation of a Child (K.S.A.21-3516)
(9) Aggravated Incest (K.S.A. 21-3603)
(10) Endangering a Child K.S.A. 21-3609)(
11) Aggravated Endangering a Child (K.S.A. 21-3608(a))
(12) Abuse of a Child (K.S.A. 21-3609)
(13) Capital Murder (K.S.A. 21-3439)
(14) Murder First Degree (K.S.A. 21-3403)
(15) Murder Second Degree (K.S.A. 21-3402)
(16) Voluntary Manslaughter (K.S.A. 21-3403)
(17) Involuntary Manslaughter (K.S.A. 21-3404)
(18) Involuntary Manslaughter with DUI (K.S.A. 21-3442)
(19) Sexual Battery (K.S.A. 21-3517)
(20) Aggravated Sexual Battery (K.S.A. 21-3518)
(21) Driving a Commercial Vehicle under the influence (K.S.A.8-2144)