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Guide to Expunction (Expungement)

One of the most common questions individuals convicted of crimes ask if whether their convictions can be expunged.  This question usually occurs after the individual suffers collateral consequences for the conviction.  Unfortunately, expunction is not always easy to do and most often individuals are not eligible to have their offenses expunged.

On July 1, 2009 Wis. Stat. sec. 973.015 was amended.  Previously only individuals under the age of 21 could have misdemeanors expunged.  Felony offenses were excluded.  Individuals over 21 years old were excluded.  The current law allows Class H and Class I felonies to be expunged (in addition to misdemeanors), as long as the individual has not been previously convicted of a felony, or if the felony sought to be expunged is a violent felony.  Certain class G felonies are allowed to be expunged, but only if the criminal conviction is for an “attempt.”  The statute allows for expunction of offenses punishable by less than 6 years prison.  A Class G felony attempt has a maximum punishment of 5 years imprisonment.

In 2009 when the law was amended attorneys and courts had a difficult time determining whether the new law would 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.  The same applies to individuals between 21 and 25 who were convicted prior to 2009 – those offenses cannot be expunged either.

Another requirement for expunction is that it is granted at 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, the issue is easily dealt with by individuals without the assistance of an attorney.  A CR-266 form, can be printed, filled out, and notarized, then filed 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.

There are other methods to achieve expunction.  Those methods are complex and often require the assistance of an attorney.  Further, they’re rarely successful.  For example, governor’s pardons have been suspended indefinitely under Scott Walker, and there’s no indication that the policy will change anytime soon.