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Bill 3209

Indicates Matter Stricken
Indicates New Matter

Indicates Matter Stricken

Indicates New Matter

COMMITTEE REPORT

March 29, 2017

H. 3209

S. Printed 3/29/17--H.

Read the first time January 10, 2017.

To whom was referred a Bill (H. 3209) to amend Section 17-22-910, as amended, Code of Laws of South Carolina, 1976, relating to applications for the expungement of criminal records for certain offenses, etc., respectfully

That they have duly and carefully considered the same and recommend that the same do pass with amendment:

Amend the bill, as and if amended, by striking all after the enacting language and inserting:

/    SECTION    1.    Section 17-22-910 of the 1976 Code, as last amended by Act 22 of 2015, is further amended to read:

"Section 17-22-910.    (A)    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;

(3)    Section 22-5-910, first offense conviction in magistrates court;

(4)    Section 22-5-920, youthful offender act;

(5)    Section 22-5-930, first offense drug convictions;

(6)    Section 56-5-750(f), first offense failure to stop when signaled by a law enforcement vehicle;

(6)(7)    Section 17-22-150(a), pretrial intervention;

(7)(8)    Section 17-1-40, criminal records destruction, except as provided in Section 17-22-950;

(8)(9)    Section 63-19-2050, juvenile expungements;

(9)(10)    Section 17-22-530(A), alcohol education program;

(10)(11)    Section 17-22-330(A), traffic education program; and

(11)(12)    any other statutory authorization.

(B)    A person's eligibility for expungement of an offense contained in this section, or authorized by any other provision of law, must be based on the offense that the person pled guilty to or was convicted of committing and not on an offense for which the person may have been charged. In addition, if an offense for which a person was convicted is subsequently repealed and the elements of the offense are consistent with an existing similar offense which is currently eligible for expungement, a person's eligibility for expungement of an offense must be based on the existing similar offense.

(C)    The provisions of this section apply retroactively to allow expungement as provided by law for each offense delineated in subsection (A) by persons convicted prior to the enactment of this section or the addition of a specific item contained in subsection (A)."

SECTION    2.    Section 22-5-910 of the 1976 Code, as last amended by Act 132 of 2016, is further amended to read:

"Section 22-5-910.    (A)    Following a first offense conviction for a crime carrying a penalty of not more than thirty days imprisonment or a fine of one thousand dollars, or both, the defendant after three years from the date of the conviction, including a conviction in magistrates or general sessions court, may apply, or cause someone acting on his behalf to apply, to the circuit court for an order expunging the records of the arrest and conviction and any associated bench warrant. However, this section does not apply to an offense involving the operation of a motor vehicle.

(B)    Following a first offense conviction for domestic violence in the third degree pursuant to Section 16-25-20(D), or Section 16-25-20(B)(1) as it existed before June 4, 2015, the defendant after five years from the date of the conviction, including a conviction in magistrates or general sessions court, may apply, or cause someone acting on his behalf to apply, to the circuit court for an order expunging the records of the arrest and conviction and any associated bench warrant.

(C)    If the defendant has had no other conviction during the three-year period as provided in subsection (A), or during the five-year period as provided in subsection (B), the circuit court may issue an order expunging the records including any associated bench warrant. No person may have his records expunged under this section more than once. A person may have his record expunged even though the conviction occurred prior to June 1, 1992.

(D)    After the expungement, the South Carolina Law Enforcement Division is required to keep a nonpublic record of the offense and the date of the expungement to ensure that no person takes advantage of the rights of this section more than once. This nonpublic record is not subject to release pursuant to Section 34-11-95, the Freedom of Information Act, or any other provision of law except to those authorized law or court officials who need to know this information in order to prevent the rights afforded by this section from being taken advantage of more than once.

(E)    As used in this section, 'conviction' includes a guilty plea, a plea of nolo contendere, or the forfeiting of bail, including out-of-state convictions. For the purpose of this section, any number of offenses for crimes carrying a penalty of not more than thirty days imprisonment or a fine of one thousand dollars, or both, that are closely connected and arose out of the same incident may be considered as one offense and treated as one conviction for expungement purposes.

(F)    No person may have the person's record expunged under this section if the person has pending criminal charges of any kind. No person may have the person's records expunged under this section more than once. A person may have the person's record expunged even though the conviction occurred before the effective date of this section."

SECTION    3.    Section 22-5-920 of the 1976 Code, as last amended by Act 132 of 2016, is further amended to read:

"Section 22-5-920.    (A) As used in this section, ' conviction' includes a guilty plea, a plea of nolo contendere, or the forfeiting of bail, including out-of-state convictions. For the purpose of this section, any number of offenses for which the individual received a youthful offender sentence that are closely connected and arose out of the same incident may be considered as one offense and treated as one conviction for expungement purposes.

(B)(1) Following a first offense conviction as a youthful offender for which a defendant is sentenced pursuant to the provisions of Chapter 19, Title 24, Youthful Offender Act, the defendant, who has not been convicted of any offense while serving the youthful offender sentence, including probation and parole, or for a period of after five years from the date of completion of the defendant's sentence, including probation and parole, may apply, or cause someone acting on the defendant's behalf to apply, to the circuit court for an order expunging the records of the arrest and conviction.

(2)    However, this section does not apply to:

(a)    an offense involving the operation of a motor vehicle;

(b)    an offense classified as a violent crime in Section 16-1-60; or

(c)    an offense contained in Chapter 25, Title 16, except as otherwise provided in Section 16-25-30; or

(d)    an offense for which the individual is required to register in accordance with the South Carolina Sex Offender Registry Act.

(3)    If the defendant has had no other conviction during the service of the youthful offender sentence, including probation and parole, or during the five-year period following completion of the defendant's sentence, including probation and parole, for a first offense conviction as a youthful offender for which the defendant was sentenced pursuant to the provisions of Chapter 19, Title 24, Youthful Offender Act, the circuit court may issue an order expunging the records. No person may have the person's records expunged under this section more than once. A person may have the person's record expunged even though the conviction occurred before the effective date of this section. A person eligible for a sentence pursuant to the provisions of Chapter 19, Title 24, Youthful Offender Act, and who is not sentenced pursuant to those provisions, is not eligible to have the person's record expunged pursuant to the provisions of this section.

(C)    After the expungement, the South Carolina Law Enforcement Division is required to keep a nonpublic record of the offense and the date of its expungement to ensure that no person takes advantage of the rights permitted by this section more than once. This nonpublic record is not subject to release under Section 34-11-95, the Freedom of Information Act, or another provision of law, except to those authorized law enforcement or court officials who need this information in order to prevent the rights afforded by this section from being taken advantage of more than once."

SECTION    4.    Article 11, Chapter 5, Title 22 of the 1976 Code is amended by adding:

"Section 22-5-930.    (A)    Following a first offense conviction of any offense under Title 44, Chapter 53, Article 3 involving the possession of a controlled substance, including those charges for which the person would now be eligible for a conditional discharge pursuant to Section 44-53-450, the defendant after three years from the date of the conviction, including a conviction in magistrates or general sessions court, may apply, or cause someone acting on his behalf to apply, to the circuit court for an order expunging the records of the arrest and conviction and any associated bench warrant.

(B)    If the defendant had no other convictions during the three-year period as provided in subsection (A), the circuit court may issue an order expunging the records including any associated bench warrant.

(C)    No person may have the person's record expunged under this section if the person has pending criminal charges of any kind. No person may have the person's records expunged under this section more than once. No person may have the person's records expunged if the person had a conditional discharge with the prior five years from the date of arrest for underlying conviction if for marijuana, and the prior ten years from the date of arrest for the underlying conviction if for any other controlled substance. A person may have the person's record expunged even though the conviction occurred before the effective date of this section.

(D)    After the expungement, the South Carolina Law Enforcement Division is required to keep a nonpublic record of the offense and the date of expungement to ensure that no person takes advantage of the rights of this section more than once. This nonpublic record is not subject to release pursuant to Section 34-11-95, the Freedom of Information Act, or any other provision of law except to those authorized law or court officials who need to know this information in order to prevent the rights afforded by this section from being taken advantage of more than once.

(E)    As used in this section, 'conviction' includes a guilty plea, a nolo contendere, or the forfeiting of bail, including out-of-state convictions. For the purpose of this section, any number of offenses that are closely connected and arose out of the same incident may be considered as one offense and treated as one conviction for expungement purposes."

SECTION    5.    Section 63-19-2050(C)(2) of the 1976 Code is amended to read:

"(2)    If the person has been taken into custody for, charged with, or adjudicated delinquent for having committed a nonviolent crime, as defined in Section 16-1-70, the court may grant the expungement order. For the purpose of this section, any number of offenses for which the individual received a youthful offender sentence that are closely connected and arose out of the same incident may be considered as one offense and treated as one conviction for expungement purposes."

SECTION    6.    Section 17-22-940(E) and (F) of the 1976 Code, as last amended by Act 276 of 2014, is further amended to read:

"(E)    In cases when charges are sought to be expunged pursuant to Section 17-22-150(a), 17-22-530(a), 17-22-330(A), 22-5-910, or 44-53-450(b), the circuit pretrial intervention director, alcohol education program director, traffic education program 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.

(F)    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, Section 17-22-150(a), Section 17-22-530(A), Section 17-22-330(A), or Section 44-53-450(b), 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, Section 63-19-2050, or Section 56-5-750(f), the conviction for any minor traffic-related offense which is punishable only by a fine or loss of points that is not related in any way to driving under the influence of alcohol 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 that no verification fee may be charged when an expungement is sought pursuant to Section 17-1-40, Section 17-22-530(A), Section 17-22-330(A), Section 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."

SECTION    7.    Article 11, Chapter 21, Title 24 of the 1976 Code is amended by adding:

"Section 24-21-1010.    (A)(1)    A person who is applying for an order of pardon for an offense pursuant to this article may request that the South Carolina Board of Paroles and Pardons recommends the expungement of records related to the offense.

(2)    A person who has received an order of pardon for an offense pursuant to this article prior to the effective date of this section may apply to the South Carolina Board of Paroles and Pardons to request that the board recommend the expungement of records related to the offense.

(B)    This section does not apply to a person who is applying for an order of pardon or has received an order of pardon for a felony offense defined as a violent crime. For the purposes of this section violent crime is defined as any crime listed in Section 16-1-60 but shall not include any drug offenses listed in Chapter 53, Title 44.

(C)    The applicant shall pay a recommendation of expungement application fee of one hundred dollars, which must be retained by the South Carolina Department of Probation, Parole and Pardon Services and used to defray the costs associated with the expungement process. The fee is nonrefundable, regardless of whether the offense is later determined to be ineligible for expungement. If the applicant is applying for an order of pardon and a recommendation of expungement at the same time, the applicant shall pay both the order of pardon application fee and the recommendation of expungement application fee.

(D)    The South Carolina Department of Probation, Parole and Pardon Services shall implement policies and procedures consistent with this section to ensure that the recommendation of expungement process is properly conducted. Such policies and procedures must include, but are not limited to:

(1)    assisting the applicant in completing the recommendation of expungement application;

(2)    collecting from the applicant and distributing to the appropriate agencies separate certified checks or money orders for charges prescribed by this section;

(3)    notifying the appropriate victim of the application pursuant to Section 16-3-1560, and the appropriate prosecuting or law enforcement agency;

(4)    coordinating with the South Carolina Law Enforcement Division to confirm that the offense is statutorily appropriate for expungement;

(5)    obtaining and verifying the presence of all necessary signatures; and

(6)    providing copies of the completed recommendation of expungement to the applicant.

(E)    The South Carolina Law Enforcement Division shall verify and document that the offense sought to be expunged is appropriate for expungement. The South Carolina Law Enforcement Division shall receive a twenty-five dollar certified check or money order from the South Carolina Department of Probation, Parole and Pardon Services on behalf of the applicant made payable to the South Carolina Law Enforcement Division. The South Carolina Law Enforcement Division shall forward the necessary documentation back to the South Carolina Department of Probation, Parole and Pardon Services. Neither the South Carolina Department of Probation, Parole and Pardon Services nor the South Carolina Law Enforcement Division shall allow the applicant to take possession of the application during the recommendation of expungement application process.

(F)(1)    The appropriate prosecuting or law enforcement agency may file an objection to the recommendation of expungement with the South Carolina Board of Paroles and Pardons within sixty days of receiving notice of the application. The prosecuting or law enforcement agency's reason for objecting must be that the:

(a)    applicant has other charges pending;

(b)    prosecuting or law enforcement agency believes that the evidence in the case needs to be preserved; or

(c)    applicant's charges were dismissed as a part of a plea agreement.

(2)    The prosecuting or law enforcement agency must notify the applicant of the objection in writing at the address listed on the application.

(G)    The appropriate victim may file an objection to the recommendation of expungement with the Board of Paroles and Pardon within one year of receiving notice of the application.

(H)    If an objection is filed by the prosecuting agency, law enforcement agency, or the victim, the objection must be heard by the South Carolina Board of Paroles and Pardons, acting in a three-member panel or meeting as a full board, and taken into consideration when the board is making a determination as to whether to recommend expungement of the applicant's records.

(I)    If no objection is filed by the prosecuting agency, law enforcement agency, or the victim, an administrative hearing officer, appointed by the Director of the South Carolina Department of Probation, Parole and Pardon Services, may review the application and submit to the board written findings of fact and recommendations which must be taken into consideration when the board is making a determination as to whether to recommend expungement of the applicant's records.

(J)    If the South Carolina Board of Paroles and Pardons, acting in a three-member panel or meeting as a full board, recommends expungement of the applicant's records, three years have passed since the completion of all terms and conditions of the person's sentence, including payment of restitution, and the person has had no other convictions other than minor traffic offenses during the three-year period, the person may apply to the appropriate solicitors office for expungement pursuant to Article 9, Chapter 22, Title 17.

(K)(1)    No person may have the person's records expunged pursuant to this section more than once. A person may have the person's record expunged even though the conviction occurred before the effective date of this section but only applies to prospective applications for expungement. A person seeking a pardon of a number of offenses for crimes that were committed at times so closely connected in point of time to the eligible offense may be considered as one offense and shall be treated as a first offense conviction.

(2)    After the expungement, the South Carolina Department of Probation, Parole and Pardon Services and the South Carolina Law Enforcement Division shall keep a nonpublic record of the offense and the order of expungement to ensure that no person takes advantage of the rights of this section more than once. The nonpublic record is not subject to release pursuant to Section 34-11-95, the Freedom of Information Act, or any other provision of law except to those authorized law or court officials who need to know the information in order to prevent the rights afforded by this section from being taken advantage of more than once."

SECTION    8.    Article 9, Chapter 22, Title 17 of the 1976 Code is amended by adding:

"Section 17-22-960.    Any employer that employs a worker who has had an expungement shall not, at any time, be subject to any administrative or legal claim or cause of action related to the worker's expunged offense. Employers shall not use expunged information adversely against an employee. No information related to an expungement shall be used or introduced as evidence in any administrative or legal proceeding involving negligent hiring, negligent retention, or similar claims."

SECTION    9.    This act takes effect six months after approval by the Governor.    /

Renumber sections to conform.

Amend title to conform.

F. GREGORY DELLENEY, JR. for Committee.

TO AMEND SECTION 17-22-910, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO APPLICATIONS FOR THE EXPUNGEMENT OF CRIMINAL RECORDS FOR CERTAIN OFFENSES, SO AS TO PROVIDE FOR ELIGIBILITY FOR EXPUNGEMENT OF OFFENSES SUBSEQUENTLY REPEALED WHEN THE ELEMENTS OF THE OFFENSE ARE CONSISTENT WITH AN EXISTING SIMILAR OFFENSE WHICH IS SUBJECT TO EXPUNGEMENT, AND CLARIFY THAT EXPUNGEMENT PROVISIONS APPLY RETROACTIVELY TO THE OFFENSES DELINEATED.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Section 17-22-910 of the 1976 Code, as last amended by Act 22 of 2015, is further amended to read:

"Section 17-22-910.    (A)    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;

(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, except as provided in Section 17-22-950;

(8)    Section 63-19-2050, juvenile expungements;

(9)    Section 17-22-530(A), alcohol education program;

(10)    Section 17-22-330(A), traffic education program; and

(11)    any other statutory authorization.

(B)    A person's eligibility for expungement of an offense contained in this section, or authorized by any other provision of law, must be based on the offense that the person pled guilty to or was convicted of committing and not on an offense for which the person may have been charged. In addition, if an offense for which a person was convicted is subsequently repealed and the elements of the offense are consistent with an existing similar offense which is currently eligible for expungement, a person's eligibility for expungement of an offense must be based on the existing similar offense.

(C)    The provisions of this section apply retroactively to allow expungement as provided by law for each offense delineated in subsection (A) by persons convicted prior to the enactment of this section or the addition of a specific item contained in subsection (A)."

SECTION    2.    This act takes effect upon approval by the Governor.

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