What is the law on getting arrest records expunged in Kansas?
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 happens when the court orders 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.
What is the law on getting a conviction or diversion expunged in Kansas?
KS 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.
Any person convicted of prostitution or who entered into a diversion agreement as a result of being arrested for prostitution may petition the court for expungement of such conviction or diversion agreement if one or more years have elapsed since the person satisfied the sentence or if the person was discharged. Also, the person must prove they were acting because of the threats of another.
What if I’ve been convicted of a more serious crime?
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.
Expungement is not available for certain offenses if the person was convicted of the offense or convicted of attempting the offense. Some of these offenses include rape, indecent liberties with a child, sexual exploitation of a child, endangering a child, capital murder, or involuntary manslaughter. Furthermore, 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.
When a petition for expungement is filed, the court sets a date for a hearing of the 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 court 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 is the effect of an expungement?
- Could an expunged record ever be available in a civil court of lawsuit?
- Can the state use an expunged case against me in a new case?