Expungement: How do I get it? A criminal defense lawyer explains.
How do I expunge my conviction? At Van Severen Law Office we speak with individuals on a weekly basis with that exact question. Defendants usually start thinking about expungement after suffering some collateral consequence based on said conviction. Unfortunately, wiping away your criminal charge is incredibly difficult. Most individuals convicted of criminal offenses do not qualify for expungement. For that reason, our criminal defense attorneys do not work on expunction issues after a conviction.
The criminal defense attorneys at Van Severen Law Office defend all individuals seeking criminal defense. If you’re looking to obtain expungement for an old charge, we do not provide representation. But if you’re looking to ensure your charges are reduced, or you’re offered expunction on an open case, we may be able to assist. We defend individuals facing all kinds of charges. This ranges from mitigated offenses like disorderly conduct, to serious charges like aggravated battery. If you’re seeking representation for your criminal case, give us a call at (414) 270-0202. We answer phones 24/7.
Expungement for individuals 25 years old and younger:
Old law:
The legislature amended section 973.015 of the Wisconsin Statutes on July 1, 2009. Prior to that date, expungement only applied to misdemeanor convictions and defendants under 21 years old. The law excluded felonies. Finally, the law also prohibited expunction for defendants over 21 years old.
New law:
Class H and I felonies are eligible for expunction, but there are a few requirements. Firstly, the defendant cannot have a record including previous felony convictions. Secondly, violent felonies don’t qualify. Thirdly, Class G felonies can be expunged, but that’s only if the conviction is for an “attempt.” The reason for this is simple: expungement is available when the offense punishment is less than 6 years prison. Normally a Class G felony carries with it a potential penalty of 10 years in prison. Attempt charges reduce exposure by 50%. Therefore, an attempted Class G felony carries a maximum penalty of 5 years, well within the 6 year maximum.
Courts and attorneys certainly had a difficult time in 2009. Does the new law apply to old offenses? The Court of Appeals decided that question in State v. Meinhart. The new law does not apply retroactively – felonies prior to 2009 cannot be expunged under the new law. Finally, the same thing applies to the age requirement. Defendants under 25 years old at the time of the conviction did not regain eligibility for expunction upon the law’s change.
Additional requirements:
Expunction must be granted at the time of sentencing. In a case decided in May, 2014, State v. Matasek, the Wisconsin Supreme Court was asked to determine whether the decision to expunge must be made at the time of sentencing by the trial court, or whether the decision for expunction can wait until the conclusion of a sentence. The Court decided that if expunction is going to be granted, it must be done at sentencing. It focused on the fact that the plain language of the statute says “at the time of sentencing that the record be expunged upon successful completion of the sentence.” The Court also made clear that expunction cannot be done later, that if the trial court wants to order expunction, it does not have the discretion to go back at a later date to decide the issue.
Expunction is not automatic upon completion of the sentence – it must be requested and granted by the trial court. Simply completing your probation does not automatically get your charge expunged. Fortunately, you don’t need an attorney to address this relatively simple issue. Print, fill out, and notarize a CR-266 form, and file it with the trial court. The Court of Appeals confirmed in State v. Hemp that unless the defendant petitions the court for an order of expunction, it won’t be granted automatically.
Hire a top criminal defense attorney for your best chance at expungement.
Is expunction your goal? Or is simply cleaning up your record what you’re looking for? There are certainly other routes to delete charges, convictions, and dismissals off CCAP. And with a recent change in the law, CCAP removes dismissed cases after a short amount of time. Finally, re-opening a criminal case and dismissing it may achieve the result you’re seeking. But for simply waiting for the charge to drop off CCAP, these are difficult strategies. We always suggest hiring a criminal defense attorney for assistance.
Thankfully the removal of Scott Walker from office is a great step towards these goals. Walker indefinitely suspended governor’s pardons while in office. This strategy resulted in de facto automatic denials of pardons. This unfair practice didn’t allow for any appeal to the government for the removal. Our criminal defense attorneys certainly believe that pardon applications should receive a fair evaluation.
Finally, the best step to a clean record? Ensure that you don’t need to expunge anything. The best way to do that is to hire a top criminal defense attorney for representation. At Van Severen Law Office we focus 100% of our resources on defending individuals just like you. We want your record to remain clean. And the best way to do that is to avoid the conviction entirely. To speak with one of our criminal defense attorneys, call Van Severen Law Office at (414) 270-0202 today.
(Our criminal defense attorneys updated this blog post on December 5, 2019.)