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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

Section 973.015 of the Wisconsin Statutes discusses current law.  It allows for the following classes of crimes to be expunged, with certain exceptions:

Offenses related to OWI are not eligible for expungement.  For felony offenses, the person can’t have a prior felony conviction on their record. Violent felonies cannot be expunged.  The defendant must be under 25 years old to quality for expungement. 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:

  1. No conviction of a subsequent offense;
  2. No revocation of probation; and
  3. Satisfaction of all 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.

During Arberry’s sentencing none of the parties mentioned expungement.  After sentencing, Arberry asked that the court to allow expungement upon the 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.”  Expungement must be ordered at sentencing.  If not, the court cannot go back and revisit the decision.  Concluding, the court took one important step further:  Imposition of a sentence, fine, or imprisonment is “sentencing.”  A sentence modification hearing is not a “sentencing.”  Subsequent hearings are not a “sentencing.”

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.  What does this mean?  Expungement could become available to countless individuals previously denied 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!

Expungement is available for certain criminal convictions in Wisconsin.
Dealing with expungement at sentencing is crucial.  If you wait, often it’s too late.

Contact a Criminal Defense Attorney to Discuss Expungement

Expungement is a hot-button topic in Wisconsin.  Doubtedly that will change in the near-future.  Your criminal defense attorney must request expungement at sentencing.  Although the law may change in the future, we must follow its current form.

If you complete your sentence and a court denies expungement based on a few missteps while on probation, do not give up hope.  A great criminal defense attorney may be able to work something out.  There are options other than expungement.

Meyer Van Severen, S.C. handles criminal cases throughout Wisconsin.  We’ve worked on expungement issues.  Contact a defense lawyer at Meyer Van Severen today.  We answer phones 24/7 at (414) 270-0202.

 

Attorney Ben Van Severen