Did South Carolina’s 2009 expungement law cover dismissed traffic and wildlife charges?

Plain-English summary

Senator Reese asked whether South Carolina’s 2009 expungement law applied to traffic offenses or offenses involving operation of a motor vehicle. The Attorney General also analyzed wildlife offenses. The Attorney General drew a decisive line between charges ending without conviction and convictions. For cases brought in summary court and ending in acquittal, dismissal, or nolle prosequi, it said Sections 17-22-950(A) and 17-1-40 required expungement of criminal records arising from Title 56 traffic or Title 50 wildlife charges, within the statute’s stated conditions.

A different first-offense provision covered applications after conviction and expressly excluded motor-vehicle offenses and specified Title 50 violations. The opinion said those conviction exclusions did not erase the no-conviction expungement rule. It recognized that many traffic cases had no booking record or fingerprints and that some officials said lawmakers had not intended to cover them, but it followed the statutes’ broad text.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Were dismissed traffic charges covered by the 2009 summary-court rule? A: The Attorney General said yes for criminal Title 56 cases brought in summary court and ending in dismissal, acquittal, or nolle prosequi, subject to the quoted statute’s conditions.

Q: Did the rule also reach wildlife charges?
A: The opinion said the no-conviction expungement provisions covered Title 50 cases in summary court on the same stated dispositions.

Q: Did the defendant have to request this summary-court expungement? A: The office read Sections 17-22-950(A) and 17-1-40 as not requiring a defendant’s application for the no-conviction order.

Q: Was a traffic conviction expungable under the separate first-offense statute? A: The opinion said that provision expressly excluded an offense involving operation of a motor vehicle. It distinguished that conviction rule from dismissal or acquittal.

Background and statutory framework

Act No. 36 of 2009 added Section 17-22-950 for summary-court cases ending in acquittal, dismissal, or nolle prosequi and amended Section 17-1-40 on destruction of arrest and booking records. The opinion quoted both. It said these provisions did not require an accused person to request expungement and identified the statutory exceptions and process for summary courts.

The Attorney General reviewed prior opinions and examples treating traffic violations as criminal offenses, and noted that many Title 50 violations were misdemeanors heard in summary court. It contrasted those provisions with § 22-5-910’s post-conviction remedy, which specifically excluded motor-vehicle offenses and some wildlife violations. The office said the distinct text controlled despite practical questions about the records typically created in traffic or wildlife cases.

Citations and references

Statutes discussed: Sections 17-22-950(A), 17-1-40, and 22-5-910(A) of the South Carolina Code as amended by Act No. 36 of 2009. The first two govern the no-conviction issue answered here.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-12-2009/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/reese-g-g-os-8834-8-12-09-uniform-expungement-of-criminal-records-act-traffic-offenses.pdf

Original opinion text

H ENRY M CMASTER
A TTORNEY G ENERAL

August 12, 2009

The Honorable Glenn G. Reese
Senator, District No. 11
P. 0 . Box 142
Columbia, South Carolina 29202
Dear Senator Reese:

In a letter to this office you questioned whether newly enacted Act No. 36, the "Uniform Expungement of Criminal Records Act" applies to traffic offenses or offenses involving the operation of a motor vehicle. You made specific reference to and highlighted provisions on page 6 regarding the amendment to S.C. Code Ann. § 22-5-91 O(A) which provides that
[fjollowing a first offense conviction for a crime carrying a penalty of not more than thirty days imprisonment or a fine offive hundred dollars, or both, the defendant after three years from the date of the conviction may apply...for an order expunging the records of the arrest and conviction. (emphasis added). Specific exceptions are made in such statute to "an offense involving the operation of a motor vehicle" or " a violation of Title 50 or the regulations promulgated pursuant to Title 50 for which points are assessed, suspension provided for, or enhanced penalties for subsequent offenses are authorized .... " Therefore, consistent with such provisions, a first offense conviction of an offense involving a motor vehicle or Title 50 may not be expunged. However, such lack of authority for these type expungements is distinguishable from the expungements provided byS.C. Code Ann.§§ 17-22-950 and 17-1-40, also included in the language of Act No. 36 of 2009, which as set forth below are applicable only to offenses when the accused is found not guilty or the charges are dismissed or nolle prossed. As to whether such provisions require summary court judges to expunge criminal records that arise out of cases involving Title 56 dealing with motor vehicle violations and Title 50 dealing with Natural Resources or wildlife violations of the Code of Laws, a review of such reveals that summary court judges are required to expunge criminal records that arise out such cases brought in summary courts. Section 17-22-950 states that: (A) [w ]hen criminal charges are brought in a summary court and the accused person is found not guilty or if the charges are dismissed or nolle prossed, pursuant to

R EMBERT C. DENNlS B u!LDrNG •

POST O FFICE B ox 11 549

• COLUMlllA, SC 29211 -1549 • T ELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

The Honorable Glenn G. Reese
Page2
August 12, 2009

Section 17-1-40, the presidingjudge of the summary court, at no cost to the accused person, immediately shall issue an order to expunge the criminal records of the accused person unless the dismissal of the charges occurs at a preliminary hearing or unless the accused person has charges pending in summary court and a court of general sessions and such charges arise out of the same course of events. This expungement must occur no sooner than the appeal expiration date and no later than thirty days after the appeal expiration date. Upon issuance of the order, the judge of the summary court or a member of the summary court staff must coordinate with SLED to confirm that the criminal charge is statutorily appropriate for expungement; obtain and verify the presence of all necessary signatures; file the completed expungement order with the clerk of court; provide copies of the completed expungement order to all governmental agencies which must receive the order including, but not limited to, the arresting law enforcement agency, the detention facility or jail, the solicitor's office, the magistrates or municipal court where the arrest warrant originated, the magistrates or municipal court that was involved in any way in the criminal process of the charge sought to be expunged, and SLED. The judge of the summary court or a member of the summary court staff also must provide a copy of the completed expungement order to the applicant or his retained counsel. The prosecuting agency or appropriate law enforcement agency may file an objection to a summary court expungement. Ifan objection is filed by the prosecuting agency or law enforcement agency, that expungement then must be heard by the judge of a general sessions court. The prosecuting agency's or the appropriate law enforcement agency's reason for objecting must be that the: (1)

accused person has other charges pending;

(2) prosecuting agency or the appropriate law enforcement agency believes that the evidence in the case needs to be preserved; or (3) accused person's charges were dismissed as a part of a plea agreement. (B) If the prosecuting agency or the appropriate law enforcement agency objects to an expungement order being issued pursuant to subsection (A)(2), the prosecuting agency or appropriate law enforcement agency must notify the accused person of the objection. This notice must be given in writing at the address listed on the accused person's bond form, or through his attorney, no later than thirty days after the person is found not guilty or his charges are dismissed or nolle prossed. S.C. Code Ann. § 17-1-40, cited in such provision, was amended to read

The Honorable Glenn G. Reese
Page 3
August 12, 2009

(A) [a] person who after being charged with a criminal offense and the charge is discharged, proceedings against the person are dismissed, or the person is found not guilty of the charge, the arrest and booking record, files, mug shots, and fingerprints of the person must be destroyed and no evidence of the record pertaining to the charge may be retained by any municipal, county, or state law enforcement agency. Provided, however, that local and state detention and correctional facilities may retain booking records, identifying documentation and materials, and other institutional reports and files under seal, on all persons who have been processed, detained, or incarcerated, for a period not to exceed three years from the date of the expungement order to manage their statistical and professional information needs and, where necessary, to defend such facilities during litigation proceedings except when an action, complaint, or inquiry has been initiated. Information retained by a local or state detention or correctional facility as permitted under this section after an expungement order has been issued is not a public document and is exempt from disclosure. Such information only may be disclosed by judicial order, pursuant to a subpoena filed in a civil action, or as needed during litigation proceedings. A person who otherwise intentionally retains the arrest and booking record, files, mug shots, fingerprints, or any evidence of the record pertaining to a charge discharged or dismissed pursuant to this section is guilty of contempt of court. As provided in Section 17-22-950(A), "[ w]hen criminal charges are brought in a summary court and the accused person is found not guilty or if the charges are dismissed or nolle prossed, pursuant to Section 17-1-40, the presiding judge of the summary court, at no cost to the accused person, immediately shall issue an order to expunge the criminal records of the accused person.... " (emphasis added). Section 17-1-40(A) states in part that "[a] person who after being charged with a criminal offense and the charge is discharged, proceedings against the person are dismissed, or the person is found not guilty of the charge, the arrest and booking record, files, mug shots, and fingerprints of the person must be destroyed and no evidence of the record pertaining to the charge may be retained by any municipal, county, or state law enforcement agency." (emphasis added). Therefore, in both instances, reference is made to "criminal charges" instituted in a summary court or charges of a "criminal offense." These provisions are absolute and do not require that the defendant request the expungement. An Order of the Chief Justice dated July 20, 2009 issued subsequent to Act No. 36 deals with summary court expungement orders. These orders refer to charges disposed of by either a magistrate's court or municipal court and reference a "warrant/ticket/courtesy summons." A memorandum issued by the State Court Administration office states that "'[c]riminal cases' has been interpreted to include Title 56 (traffic) and Title 50 (DNR) which are disposed of pursuant to Section 17-1-40."

The Honorable Glenn G. Reese
Page4
August 12, 2009

A prior opinion of this office dated July 22, 1980 dealt with the question of whether or not traffic offenses are "criminal offenses" for purposes of Section 17-1-40. The opinion stated that
... violations of virtually all of the laws of Title 56 of the South Carolina Code are classified as misdemeanors .. .It therefore seems clear that traffic violations are criminal offenses within the meaning of§ 17-1-40. See also: Ops. dated February 17, 1993 (reference to " ... speeding or any other traffic or criminal offense."); September 27, 1989 (" ... generally traffic offenses should be considered criminal offenses since virtually all traffic provisions in Title 56 are classified as misdemeanors .... "); April 16, 1968 (" ... violation of a municipal traffic ordinance would, in my opinion, be in the nature of a criminal offense"); May 9, 1967 (" ... all traffic violations are criminal offenses."); April 20, 1966 ("whether ... (a statute) ... creates a criminal offense depends upon whether there is a penalty that is prescribed for its violation. A penal statute is one which imposes punishment.. .. "). Similarly, the State Court of Appeals in State v. Padgett, 354 S.C. 268, 273, 580 S.E.2d 159, 162 (2003) made reference to a motorist " ... committing a criminal act, which includes the violation of a traffic law .... " As referenced, provisions of Chapter 5 of Title 56 which establish statutory traffic offenses typically categorize such offenses as misdemeanors. See, e.g., S.C. Code Ann.§ 56-5-1520(G) "[a] person violating the speed limits established by this section is guilty of a misdemeanor and, upon conviction for a first offense, must be fined or imprisoned as follows: ... (with a maximum penalty
) ... by a fine of not less than seventy-five dollars nor more than two hundred dollars or imprisoned for not more than thirty days."; S.C. Code Ann.§ 56-5-6190 ("[i]t is a misdemeanor for any person to violate any of the provisions of this chapter unless such violation is by this chapter or other law of this State declared to be a felony. Every person convicted of a misdemeanor for a violation of any of the provisions of this chapter for which another penalty is not provided shall be punished by a fine of not more than one hundred dollars or by imprisonment for not more than thirty days." As to violations of Title 50 dealing with fish, game and watercraft violations, typically first offense violations of such provisions are classified as misdemeanor offenses within the jurisdiction of a magistrate's court. See, e.g., S.C. Code Ann.§§ 50-5-330; 50-11-340; 50-11-1450; 50-13-1195; 5018-290; 50-19-590; 50-19-2650; 50-21-150; 50-23-280; 50-25-1130. These violations would be within the trial jurisdiction of a magistrate or municipal court inasmuch as S.C. Code Ann. § 22-3550 provides that magistrates have jurisdiction of all offenses subject to penalties of a fine not exceeding five hundred dollars or imprisonment not exceeding thirty days, or both. Pursuant to S.C. Code Ann.§ 14-25-45, a municipal court has " ... all such powers, duties and jurisdiction in criminal cases made under state law and conferred upon magistrates."

The Honorable Glenn G. Reese
Page 5
August 12, 2009

Admittedly, some of the provisions of Sections 17-22-950(A) and 17-1-40 are inconsistent with typical traffic or wildlife violations. For instance, such type cases typically do not involve a booking record, mug shots, and fingerprints of the person arrested. Section 17-22-950(A) makes reference to the fact that
[u]pon issuance of the order, the judge of the summary court or a member of the summary court staff must coordinate with SLED to confirm that the criminal charge is statutorily appropriate for expungement; obtain and verify the presence of all necessary signatures; file the completed expungement order with the clerk of court; provide copies of the completed expungement order to all governmental agencies which must receive the order including, but not limited to, the arresting law enforcement agency, the detention facility or jail, the solicitor's office, the magistrates or municipal court where the arrest warrant originated, the magistrates or municipal court that was involved in any way in the criminal process of the charge sought to be expunged, and SLED. Involvement with SLED, the clerkofcourt, a detention facility or jail and the solicitor's office is also not typical for traffic and wildlife cases. Moreover, we have been advised by the Executive Director of the State Prosecution Commission, the State Municipal Association and the State Association of Counties that it was never intended that traffic cases be included in the offenses for which expungement is authorized. While this may be the understanding, nevertheless, Sections 17-22-950(A) and 17-1-40 are quite specific in referencing that "[ w ]hen criminal charges are brought in a summary court and the accused person is found not guilty or if the charges are dismissed or nolle prossed, pursuant to Section 17-1-40.... " and when "[a] person who after being charged with a criminal offense and the charge is discharged, proceedings against the person are dismissed, or the person is found not guilty of the charge, .... " records are to be expunged and destroyed. (emphasis added). When interpreting the meaning of a statute, certain basic principles must be observed. The cardinal rule of statutory interpretation is to ascertain and give effect to legislative intent. State v. Martin, 293 S.C. 46, 358 S.E.2d 697 (1987). Typically, legislative intent is determined by applying the words used by the General Assembly in their usual and ordinary significance. Martin v. Nationwide Mutual Insurance Company, 256 S.C. 577, 183 S.E.2d 451 (1971). Resort to subtle or forced construction for the purpose oflimiting or expanding the operation of a statute should not be undertaken. Walton v. Walton, 282 S. C. 165, 318 S.E.2d 14 ( 1984). Courts must apply the clear and unambiguous terms of a statute according to their literal meaning and statutes should be given a reasonable and practical construction which is consistent with the policy and purpose expressed therein. State v. Blackmon, 304 S.C. 270, 403

The Honorable Glenn G. Reese
Page6
August 12, 2009

S.E.2d 660 (1991); Jones v. South Carolina State Highway Department, 247 S.C. 132, 146 S.E.2d 166 (1966). As noted, the expungements provided for by Sections 17-22-950 and 17-1-40 are, of course, applicable only to offenses when the accused is found not guilty or the charges are dismissed or nolle prossed. Such expungements are distinguishable from the expungement provided by S.C. Code Ann.
§ 22-5-91 O(A), also included in Act No. 36, which provides that
[t]ollowing a first offense conviction for a crime carrying a penalty of not more than thirty days imprisonment or a fine of five hundred dollars, or both, the defendant after three years from the date of the conviction may apply ... for an order expunging the records of the arrest and conviction. (emphasis added). Specific exceptions are made as to "an offense involving the operation of a motor vehicle" or "a violation of Title 50 or the regulations promulgated pursuant to Title 50 for which points are assessed, suspension provided for, or enhanced penalties for subsequent offenses are authorized .... " Therefore, when the General Assembly has exempted traffic and wildlife convictions from consideration for expungement, it has expressly done so. The Order of the Chief Justice dated December 20, 2005, which preceded the adoption of the most recent Order issued following the passage of Act No. 36 of2009, provided for expungements pursuant to the following statutory provisions: S.C. Code Ann. § 34-11-90(e) (first offense misdemeanor fraudulent check), S.C. Code Ann. § 44-53-450(b) (conditional discharge for simple possession of marijuana or hashish), S.C. Code Ann. § 22-5-910 (first offense conviction in magistrates court), S.C. Code Ann.§ 22-5-920 (youthful offender act), S.C. Code Ann.§ 56-5-750(£) (first offense failure to stop when signaled by law enforcement vehicle), S.C. Code Ann. § 17-22150(a) (pretrial intervention), S.C. Code Ann. § 17-1-40, S.C. Code Ann. § 20-7-8525 (juvenile expungements). The form Order for Destruction of Arrest Records which preceded the most recent form Order which allows for the issuance of such Order by a summary court judge was to be signed by a circuit court judge. As noted previously, Section 17-22-950(A) authorizes that"[ w ]hen criminal charges are brought in a summary court and the accused person is found not guilty or if the charges are dismissed or nolle prossed, pursuant to Section 17-1-40, the presiding judge of the summary court, at no cost to the accused person, immediately shall issue an order to expunge the criminal records of the accused person .... " Therefore, there is a specific expansion of the circumstances, i.e., "criminal charges ... brought in a summary court'', for which expungement is authorized. Consistent with the above, in the opinion of this office, newly-enacted Section 17-22-950(A) and amended Section 17-1-40 require summary court judges to expunge criminal records that arise

The Honorable Glenn G. Reese
Page 7
August 12, 2009

out of cases involving Title 56 dealing with motor vehicle violations and Title 50 dealing with Natural Resources or wildlife violations of the Code of Laws. Again, such conclusion is distinguishable from expungements sought pursuant to Section 22-5-91 O(A) which, again, provides that "[f]ollowing a first offense conviction for a crime carrying a penalty of not more than thirty days imprisonment or a fine of five hundred dollars, or both, the defendant after three years from the date of the conviction may apply... for an order expunging the records of the arrest and conviction." (emphasis added). As stated above, specific exceptions are made in such statute to "an offense involving the operation of a motor vehicle" or "a violation of Title 50 or the regulations promulgated pursuant to Title 50 for which points are assessed, suspension provided for, or enhanced penalties for subsequent offenses are authorized .... " Therefore, consistent with such provisions, a first offense conviction of an offense involving a motor vehicle or Title 50 may not be expunged. With kind regards, I am, Very truly yours, Henry McMaster Attorney General

cfJ.I( 1ZlABy:

Charles H. Richardson
Senior Assistant Attorney General

REVIEWED AND APPROVED BY:

~-~
Robert D. Cook
Deputy Attorney General
cc:

Robert L. McCurdy, Assistant Director, South Carolina Court Administration Buford S. Mabry, Jr., Chief Counsel, South Carolina Department of Natural Resources Mr. William Bilton, Executive Director, South Carolina Commission on Prosecution Coordination Mr. Warren T. Harley. Municipal Association of South Carolina Danny C. Crowe, Esquire