Obstacles of Expunction: What You Should Know

Some clients wonder who qualifies for expungement, and there are two really big issues that need to be addressed when considering whether you qualify for an expunction or not. And that is whether you were convicted or charged or processed in some way for another offense that arose out of the same criminal episode or if you were convicted of a similar offense in the past.

Normally, this arises in cases where you may have been arrested for multiple offenses. For example, you may have been stopped for a DWI, drugs were found, and you were charged with simply the DWI, the drug case was dismissed, not filed, or you entered into some kind of agreement where it was dismissed or not prosecuted. Since you were prosecuted on the DWI, then you're not able to get an expunction of the drug case. And that's because it was out of the same episode. You got a sentence for that. And so you don't qualify for expunction on that.

There are some limited exceptions for that. Generally, those apply in cases where you negotiated some kind of agreement where it went down to a class C misdemeanor and you successfully completed that. But for the most part, most plea agreements, which included charges that are dismissed, you're not gonna be able to go in and get those expunged. The other problem that arises because of the way the court has construed the statute is that you're not entitled to an expunction if you were convicted of another offense arising out of the same criminal episode. you probably think the same criminal episode means the same transaction or at least close in time, and it does not mean that the court recently addressed or the courts have recently addressed situations where they have looked at DWI cases. And the situation is you're arrested for DWI, you either go to trial and are found not guilty or the case is dismissed. You then try to expunge that, but you were prosecuted or arrested for a DWI in the past. And it really doesn't, apparently, make much difference how long ago. That is considered the same criminal episode because it's the same offense. And so, if you've been convicted of the same type of offense, whether you're placed on probation or whatever the process, you're not gonna be entitled to an expunction. Those two things are really what prevents most people who otherwise might qualify for an expunction from getting it.