An old expungement can’t be used to bar a second one

If you had your criminal record expunged, it can’t be used against you at a later date to bar you from getting a new criminal record expunged, according to a recent Western District Court of Appeals decision.

For those who don’t know, an expungement means restoring all rights as if the event had never occurred. Statutes governing expungement of arrest records require that the petitioner has no criminal convictions before or after the relevant arrest.  In this recent case, the Highway Patrol’s Central Repository was trying to block a person who had a prior conviction expunged from getting another expungement on a recent conviction.

The debate centered around the present tense of the verb “has.”  The word “has” instructs the court to look at the facts of the case as of the filing date of the petition for expungement. And if as of the filing date of the petition, if the person does not have a conviction because it had already been expunged at an earlier date, then the second conviction he wants expunged is counted as only a first-time conviction.

The appeal was brought by the Highway Patrol’s Central Repository, which according to state statute has standing to appeal a judgment adverse to the Central Repository in an action for expungement.  The Central Repository argued that because the defendant had a 2011 speeding conviction, he was statutorily ineligible for expungement of the arrest record, even though the speeding conviction had been expunged pursuant to section 610.140, RSMo. And because expungement of the defendant’s 2011 speeding conviction pursuant to section 610.140 restored him to the status he occupied prior to the conviction as if such conviction had never taken place, it was not legally erroneous to expunge the defendant’s 2016 arrest record.  

So the appellate court held that once the defendant’s 2011 misdemeanor speeding conviction was expunged, he no longer had a prior conviction for purposes of section 610.122.2(1).  The trial court, the appellate panel concluded, did not commit legal error by entering its judgment expunging the defendant’s 2016 arrest record and the trial court’s judgment is affirmed.       

The case was heard before Division One Presiding Judge Edward R. Ardini, Jr., and Judges Mark D. Pfeiffer and Cynthia L. Martin.

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