On Tuesday, Oct. 29, the House Judiciary Committee met for a fourth time to consider the Clean Slate legislative package. This time, they voted it out of committee and sent it to the floor of the House for a vote of the full chamber. But before doing so, they adopted substitute versions of the bills that contained a number of changes. They also added a seventh bill to the package.
These changes are complex, but in all, they improve the legislation. Here are some of the key takeaways:
- The original wording of the automatic expungement had allowed for up to two felonies OR four misdemeanors to be expunged, causing some confusion. That has been clarified to up to two felonies AND up to four misdemeanors, although there are some stipulations, which are described below.
- Originally, there had been a requirement that people pay off all restitution before they qualified for an automatic expungement. That requirement has now been eliminated.
- Over their lifetime, the number of offenses a person would be able to expunge would be increased to three felonies and an unlimited number of misdemeanors, up from the current limit of two felonies and four misdemeanors. Again, there are some stipulations, which are explained below.
Bill-by-bill, here are the changes:
House Bill 4980 (Automatic Expungement)
- Misdemeanors would now be automatically expunged after seven years, rather than ten. The waiting period for felonies would remain 10 years.
- Note: The clock on waiting periods begins either on the date of the imposition of the sentence, or the date of release from prison, whichever is later.
- Up to two felonies and up to four misdemeanors are eligible to be automatically expunged.
- Certain offenses cannot be automatically expunged. They are:
- Assaultive crimes.
- Serious misdemeanors.
- Crimes that carry a maximum sentence of 10 or more years in prison.
- Certain crimes of dishonesty (including embezzlement, forgery and counterfeiting).
- Human trafficking crimes.
HB 4981 (Expungement of traffic offenses)
- Previously, a considerable list of traffic offenses was excluded from expungement, including violations in work or school zones and failing to stop at the signal of a conservation officer.
- That list has been narrowed. Now, the only kinds of traffic offenses that would be excluded from expungement are:
- Conviction for driving while impaired by alcohol or another substance.
- An offense committed by someone holding a commercial drivers license while operating a commercial motor vehicle.
- Any traffic offense resulting in injury or death.
HB 4982 (Marijuana Expungement)
- As before, this bill allows people to petition for the expungement of any marijuana-related offense that would now be legal under the voter referendum on marijuana
- Newly added HB 5120 creates a challenge process for prosecutors in the local jurisdictions who believe that an offense in question would not be permitted under the new legalization of marijuana. The process would follow these steps:
- After a petition is filed for the expungement of a marijuana-related offense, notice is sent to the agency that prosecuted the offense(s).
- The prosecuting agency would have 60 days after notification to object to the rebuttal and explain why the offense(s) in question would still be illegal after the legalization of recreational marijuana on Dec. 6, 2018.
- If no rebuttal is filed within 60 days, a judge is ordered to issue an expungement within the following 21 days.
- If a rebuttal is filed, a hearing is to be held within 30 days. The burden of proof is on the prosecutor to show that the offense(s) would still be illegal after the 2018 legalization of marijuana.
- At the court hearing, an expungement applicant is not required to present evidence, as “the burden of proof … rests solely on the objecting prosecuting attorney.”
- The judge at the hearing must issue an order granting or denying an expungement within 14 days of the hearing.
HB 4983 (Wait times for expungements)
- Petitions for misdemeanors can begin after three years.
- Petitions for a first felony or serious misdemeanor can begin after five years.
- Petitions for a second and third felony can begin after seven years.
- Again, the clock on waiting periods begins either on the date of the imposition of the sentence, or the date of release from prison, whichever is later.
HB 4984 (Number of expungements)
- People would now be able to request up to three felony expungements, an increase from the existing two.
- People can petition for an unlimited number of non-assaultive misdemeanor expungements.
- The following conditions apply:
- Applicants can have no more than two assaultive crimes.
- Applicants can have no more than two of the same kinds of crime carrying a maximum sentence of 10 or more years (for example, two convictions of felony possession of methamphetamine, both carrying a potential 10-year sentence).
HB 4985 (One bad night)
- Certain offenses can be considered as consolidated into one for purpose of counting convictions toward the numerical limits, but certain conditions apply:
- All of the offenses must have occurred within one 24-hour period.
- None of the offenses were:
- Involved the use or possession of a dangerous weapon.
- Carried a potential maximum sentence of 10 years or more.
The term “assaultive crime” is used a couple of times in these bills. According to the House Fiscal Analysis document:
Assaultive crime as defined in section 9a of Chapter X of the Code of Criminal Procedure includes offenses such as assault, homicide, manslaughter, assaults against pregnant women, kidnapping, rape, armed robbery, terrorism, and violations involving bombs and explosives.
It’s important to know that all of these bills are “tie-barred.” That means that all of them must pass, or none of them will take effect.
The legislation is had its second of third readings in the House on Thursday, Oct. 31 and its third full House vote is expected next week. We’re pleased to see this important legislation making a quick trip through the Capitol and hope that momentum continues. We’ll be sure to keep you posted.