Kansas DUI Expungement Issues

Kansas DUI Expungement Issues

Posted By Jerry Wallentine || 22-Jun-2015

Kansas DUI expungement law can be confusing for numerous reasons. Different courts, judges, lawyers, and prosecutors have differing opinions regarding the matter. As an expereicned criminal defense lawyer dealing with DUI expungements, I have litigated the issue many times and seen numerous outcomes. Furthermore, the law regarding expunging a drunk driving conviction changes often. For example, it used to be (5) five years to get an expungement. Then, in 2006, the Kansas legislature stated you can't get an expungement for a DUI at all. Then, after several years, they changed it to (10) ten years. Most recently, in 2014, K.S.A. 21-6614 was again changed to allowing the expungement after (7) seven years. It will change again.

Due to the statute changes, a problem arose for people who were convicted of a DUI prior to the 2006 law change. The courts and prosecutors were not allowing the expungements for defendants because the law stated it was illegal. However, as a Constitutional Criminal Defense Attorney, I felt this was unfair and an ex post facto violation of the Constitution. After litigation and argument, we were indeed sometimes able to obtain expungements for DUI cases, despite the prosecutors' objections and the barring statute.

Finally, it is now settled law, that the 2006 statute barring a DUI expungement was not retroactive and should only be applied to future DUI's. The Kansas Supreme Court stated it should be the law which was applicable at the time the person received the DUI. In other words, if an expungement was allowed back when you received the DUI, you should now still be entitled to the expungement, despite the new law. This created a whole new problem. Alas, what about the people convicted of a DUI during the term when DUI convictions were made non-expungeable? Unfortunately, some prosecutors are now using the most recent case law to prevent the expungement. In fact, the Johnson County District Attorney's Office in Olathe, Kansas has a recent office memo stating they won't expunge a DUI that occurred during the period which the legislature said you couldn't expunge. This appears unfair as the legislature has now stated that DUI convictions can be expunged. I look forward to litigating this issue. In my opinion, defendants should receive the benefit of the new statute (allowing an expungement) and should be able to have the DUI conviction expunged.

So, what does this mean for your DUI expungement? It means that a thoughtful analysis needs to be made by an experienced DUI expungement defense attorney regarding your specific situation. Even then, it may be difficult to predict what will actually occur in your specific case.

Categories: DUI, Expungement