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Indicates Matter Stricken
Indicates New Matter
Indicates Matter Stricken
Indicates New Matter
COMMITTEE AMENDMENT ADOPTED
May 31, 2007
S. 110
S. Printed 5/31/07--S. [SEC 6/4/07 3:39 PM]
Read the first time January 9, 2007.
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY DESIGNATING THE EXISTING SECTIONS OF CHAPTER 22, TITLE 17 AS ARTICLE 1 AND BY ADDING ARTICLE 3 SO AS TO ENACT THE "UNIFORM EXPUNGEMENT OF CRIMINAL RECORDS ACT", TO PROVIDE A PROCEDURE WHICH MUST BE FOLLOWED REGARDING APPLICATIONS FOR EXPUNGEMENT OF ALL CRIMINAL RECORDS, AND TO AUTHORIZE EACH SOLICITOR'S OFFICE IN THE STATE TO ADMINISTER THE PROCEDURE.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. This act may be cited as the "Uniform Expungement of Criminal Records Act".
SECTION 2. Sections 17-22-10 through 17-22-170 of the 1976 Code are designated as Article 1 of Chapter 22, Title 17.
SECTION 3. Chapter 22, Title 17 of the 1976 Code is amended by adding:
Section 17-22-310. Applications for expungement of all criminal records must be administered by the solicitor's office in each circuit in the State as authorized pursuant to:
(1) Section 34-11-90(e), first offense misdemeanor fraudulent check;
(2) Section 44-53-450(b), conditional discharge for simple possession of marijuana or hashish;
(3) Section 22-5-910, first offense conviction in magistrates court;
(4) Section 22-5-920, youthful offender act;
(5) Section 56-5-750(f), first offense failure to stop when signaled by a law enforcement vehicle;
(6) Section 17-22-150(a), pretrial intervention;
(7) Section 17-1-40, criminal records destruction;
(8) Section 20-7-8525, juvenile expungements; and
(9) any other statutory authorization.
Section 17-22-320. The clerk of court shall direct all inquiries concerning the expungement process to the corresponding solicitor's office to make application for expungement.
Section 17-22-330. A person applying to expunge a criminal record shall obtain the appropriate blank expungement order form from the solicitor's office in the judicial circuit where the charge initiated. The use of this form is mandatory and to the exclusion of all other expungement forms.
Section 17-22-340. In exchange for the expungement service, the applicant is responsible for payment to the solicitor's office of an administrative fee in the amount of two-hundred-fifty-dollars per individual order, which must be retained by that office and used to defray the costs associated with the expungement process. Any person who applies for an expungement pursuant to Section 17-1-40 within one year of the date of disposition is exempt from paying the administrative fee. The two-hundred-fifty-dollar fee is nonrefundable, regardless of whether the offense is later determined to be statutorily ineligible for expungement or the solicitor or his designee does not consent to the expungement.
Section 17-22-350. (A) The solicitor's office shall implement policies and procedures consistent with this article and guidelines distributed by the Chief Justice through the Office of South Carolina Court Administration to ensure that the expungement process is properly conducted. This includes, but is not limited to:
(1) assisting the applicant in completing the expungement order form;
(2) collecting from the applicant and distributing to the appropriate agencies separate certified checks or money orders for charges prescribed by this article;
(3) coordinating with the South Carolina Law Enforcement Division (SLED) and, in the case of juvenile expungements, the Department of Juvenile Justice, to confirm that the criminal charge is statutorily appropriate for expungement;
(4) obtaining and verifying the presence of all necessary signatures;
(5) filing the completed expungement order with the clerk of court; and
(6) providing copies of the completed expungement order to all governmental agencies which must receive the order including, but not limited to, the:
(a) arresting law enforcement agency;
(b) detention facility or jail;
(c) solicitor's office;
(d) magistrates or municipal court where the arrest warrant originated;
(e) magistrates or municipal court that was involved in any way in the criminal process of the charge sought to be expunged;
(f) Department of Juvenile Justice; and
(g) SLED.
(B) The solicitor or his designee also must provide a copy of the completed expungement order to the applicant or his retained counsel.
(C) In cases when charges are sought to be expunged pursuant to Section 17-22-150(a), 22-5-910, or 44-53-450(b), the circuit pretrial intervention director or summary court judge shall attest by signature on the application to the eligibility of the charge for expungement before either the solicitor or his designee and then the circuit court judge, or the family court judge in the case of a juvenile, signs the application for expungement.
(D) SLED shall verify and document that the criminal charges in all cases, except in cases when charges are sought to be expunged pursuant to Section 17-1-40, are appropriate for expungement before the solicitor or his designee, and then a circuit court judge, or a family court judge in the case of a juvenile, signs the application for expungement. If the expungement is sought pursuant to Section 34-11-90(e), Section 22-5-910, Section 22-5-920, or Section 56-5-750(f), the conviction for any traffic related offense which is punishable only by a fine or loss of points will not be considered as a bar to expungement.
(1) SLED shall receive a twenty-five-dollar certified check or money order from the solicitor or his designee on behalf of the applicant made payable to SLED for each verification request, except no verification fee may be charged when an expungement is sought pursuant to Section 17-1-40, 17-22-150(a), or 44-53-450(b). SLED then shall forward the necessary documentation back to the solicitor's office involved in the process.
(2) In the case of juvenile expungements, verification and documentation that the charge is statutorily appropriate for expungement must first be accomplished by the Department of Juvenile Justice and then SLED.
(3) Neither SLED, the Department of Juvenile Justice, nor any other official shall allow the applicant to take possession of the application for expungement during the expungement process.
(E) The applicant also is responsible to the clerk of court for the filing fee per individual order as required by Section 8-21-310(21), which must be forwarded to the clerk of court by the solicitor or his designee and deposited in the county general fund. If the charge is determined to be statutorily ineligible for expungement, this prepaid clerk of court filing fee must be refunded to the applicant by the solicitor or his designee.
(F) Each expungement order may contain only one charge sought to be expunged, except in those circumstances when expungement is sought for multiple charges occurring out of a single incident and subject to expungement pursuant to Section 17-1-40 or 17-22-150(a). Only in those circumstances may more than one charge be included on a single application for expungement and, when applicable, only one two-hundred-fifty-dollar fee, one twenty-five-dollar SLED verification fee, and one thirty-five-dollar clerk of court filing fee may be charged.
(G) A filing fee may not be charged by the clerk's office to an applicant seeking the expungement of a criminal record pursuant to Section 17-1-40, when the charge was discharged, dismissed, nol prossed, or the applicant was acquitted.
(H) Nothing in this article precludes an applicant from retaining counsel to apply to the solicitor's office on his behalf or precludes retained counsel from initiating an action in circuit court seeking a judicial determination of eligibility when the solicitor, in his discretion, does not consent to the expungement. In either event, retained counsel is responsible to the solicitor or his designee, when applicable, for the two-hundred-fifty-dollar fee, the twenty-five-dollar SLED verification fee, and the thirty-five-dollar clerk of court filing fee which must be paid by retained counsel's client.
(I) The solicitor or his designee has the discretion to waive the one-hundred-fifty-dollar fee only in those cases when it is determined that a person has been falsely accused of a crime as a result of identity theft.
(J) Each solicitor's office shall maintain a record of all fees collected related to the expungement of criminal records, which must be made available to the Supreme Court upon request. Otherwise, these records are confidential."
SECTION 4. Section 17-1-40 of the 1976 Code is amended to read:
"Section 17-1-40. Any person who after being charged with a criminal offense and such charge is discharged or proceedings against such person dismissed or is found to be innocent of such charge, the arrest and booking record, files, mug shots, and fingerprints of such person shall be destroyed and no evidence of such record pertaining to such charge shall be retained by any municipal, county, or State state law enforcement agency. Any person who intentionally retains the arrest and booking record, files, mugshots, fingerprints, or any evidence of such record pertaining to a charge discharged or dismissed pursuant to this section shall be in contempt of court."
SECTION 5. The Code Commissioner is authorized to change references in Article 1, Chapter 22, Title 17, as provided in SECTION 2, from "chapter" to "article" as appropriate.
SECTION 6. This act takes effect upon approval by the Governor.
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