Expungement: Another Court Ruling

It seems like every six months, the topic of expungement comes up either in the courts or the legislature.  The Supreme Court of Wisconsin just issued a decision clarifying the language in Wis. Stat. Sec. 973.015 which requires the decision on expunction to be made at the time of sentencing.

Expungement Recap

The current law, found in Section 973.015, allows for the following classes of crimes to be expunged, with certain exceptions:

Offenses related to OWI are not eligible for expungement.  For the felony offenses, the person can’t have a prior felony conviction on their record.  And the felony sought to be expunged cannot be classified as a violent felony.  At the time the crime was committed, the person must also be younger than 25 years old.  Finally, and most importantly, the sentencing court must grant expungement at the time of sentencing.

In State v. Matasek, the Wisconsin Supreme Court stated that the court must decide to grant expungement at the time of sentencing.  If the court granted expunction at the time of sentencing, it must be conditioned upon the successful completion of probation.  The statute defines successful completion of probation as

  • If the person has not been convicted of a subsequent offense and, if on probation, the probation has not been revoked and the probationer has satisfied the conditions of probation.

In State v. Ozuna, the Wisconsin Supreme Court made it more difficult for offenders to “successfully” complete their probation.  Ozuna completed probation, but also received an underage drinking ticket.  He was to maintain absolute sobriety, so an underage drinking ticket violated that condition.  The Supreme Court agreed with the circuit court that Ozuna did not successfully complete the conditions of his probation, and therefore denied his request for expunction.

Most Recent Expungement Case

In State v. Arberry, the Wisconsin Supreme Court held that a defendant may not seek expunction after a sentence is imposed.  Arberry essentially affirmed the Matasek case and explicitly clarified the language in Section 973.015.

When Arberry was sentenced, none of the parties or the court mentioned expungement.  After being sentenced, she filed a postconviction motion asking the circuit court to allow expunction upon successful completion of her sentence.  The Court held that the statute explicitly bars that request.  The plain language of the statute states “the court may order at the time of sentencing that the record be expunged upon successful completion of the sentence.”  If the court does  not order expungement at the time of sentencing, then the court can never go back and revisit it.  Further, the Court determined that “sentencing” occurs when a sentence, fine, or probation is imposed.  It does not continue to a sentence modification hearing.

Can the Legislature Change the Law?

Yes!  State Assembly Bill 331, which was first proposed back in May of 2017, is designed to remove the requirement that the sentencing court make a determination on expungement at the time of sentencing.  Under the new law, an offender could petition the court for expunction after completing the sentence even if the court did not order expungement at the time of sentencing.  Even if the court denies the petition, the offender can file a new petition in two years.  Finally, and most importantly, the law would apply retroactively to all offenses.  This means that expungement would now be available to countless individuals who were sentenced without having the opportunity for expungement.

As of now, the Bill has not gone to a full assembly vote.  But the Committee on Criminal Justice and Public Safety did file a report recommending its passage.  So stay tuned!

Contact a Criminal Defense Attorney to Discuss Expungement

Expungement will continue to be a hot-button topic in Wisconsin It is crucial for your criminal law attorney to request expungement at sentencing, because that is still what is required by the current law.  If you complete your sentence and a court denies expungement based on a few missteps while on probation, do not give up hope.  Contact the top Milwaukee criminal defense firm today!