Did an earlier conviction or a later traffic offense block expungement under South Carolina’s 2004 rules?

Plain-English summary

In January 2004, South Carolina’s Attorney General answered four questions about expungement under the statutes then in force. An earlier general sessions conviction did not by itself prevent expungement of a later first magistrate-court conviction, provided no other conviction occurred in the three years after that magistrate conviction. The office also concluded that a prior motor-vehicle conviction could count as the first offense and prevent a later offense from qualifying as a first offense.

For the required conviction-free periods, the AG counted traffic convictions such as speeding, even though motor-vehicle offenses themselves were excluded from the expungement routes discussed. For the youthful-offender route, the applicant had to have been actually sentenced as a youthful offender, rather than merely eligible for that sentence. The opinion also recognized the circuit court’s discretion and said SLED had to follow a facially valid expungement order until it was set aside.

Currency note

This opinion was issued in 2004. 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.

Historical summary

Applicants and criminal defense attorneys

The office distinguished an earlier general sessions conviction from an earlier magistrate conviction. The former did not defeat the later magistrate offense’s first-offense status under its reading, while a motor-vehicle conviction could consume that status even though it could not itself be expunged under the provision. A new traffic conviction also interrupted the conviction-free period.

Courts and law-enforcement records staff

The statutes said the circuit court may issue an expungement order. The opinion said SLED must honor an order valid on its face unless it is vacated or set aside on appeal.

Common questions

Did a prior general sessions conviction automatically block a later magistrate conviction’s expungement?
No. The AG said the later magistrate conviction could be expunged if it was a first magistrate offense and no further conviction occurred during the following three years.

Could a prior DUI or other motor-vehicle conviction count as the first offense?
Yes. The AG concluded that the exclusion of motor-vehicle offenses from expungement did not prevent them from counting as convictions when deciding whether a later offense was a first offense.

Did a speeding conviction count during the waiting period?
Yes. The opinion counted such convictions during the three-year and fifteen-year periods that required no additional conviction.

Was eligibility for youthful-offender sentencing enough for that expungement route?
No. The AG said the person needed to have actually been sentenced as a youthful offender.

Background and statutory framework

SLED’s chief asked how the first-offense and conviction-free-period terms applied to magistrate-court and youthful-offender expungements. The AG read the provisions as counting all convictions unless the statute expressly said otherwise, while recognizing the circuit court’s authority over an expungement order.

Citations and references

The opinion discussed S.C. Code Ann. Section 22-5-910 and Section 22-5-920 as they stood in 2004.

Official title

Regarding expungement orders.

Requester

Robert M. Stewart, Chief, South Carolina Law Enforcement Division

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-21-2004-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/04jan21stewart.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsTER

January 21, 2004

ATI'ORNEY GENERAL

Robert M. Stewart, Chief
South Carolina Law Enforcement Division
P. 0. Box 21398
Columbia, South Carolina 29221- 1398

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Dear Chief Stewart:
In a letter to this office you raised several questions regarding expungement orders. Your first two questions involve S.C. Code Ann. Section 22-5-910 (Supp. 2002) which states:

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Following a first offense conviction in a magistrate's court or a municipal court, the defendant after three years from the date of the conviction 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. Howev~, this section does not apply to an offense involving the operation of a motor vehicle, to a violation of Title 50 or the regulations promulgated under it for which points are assessed, suspension provided for, or enhanced penalties for subsequent offenses authorized, or to an offense contained in Chapter 25 of Title 16, except first offense criminal domestic violence as contained in Section 16-25-20. If the defendant has had no other conviction during the three year period following the first conviction in a magistrate's court or a municipal court, the circuit court may issue an order expunging the records. No person shall 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. The statute further defines "conviction" as including" ... a guilty plea, a plea of no lo contendere, or the forfeiting of bail."

In your first question you asked whether an individual is entitled to have a magistrate's court conviction expunged if it follows a first conviction in general sessions court. The cardinal rule of statutory construction is that a court is to ascertain and effectuate the actual intent of the legislature. Bums v. State Farm Mut. Auto. Ins. Co., 297 S.C. 520, 372 S.E.2d 569 (1989). In construing a statute, its words must be given their plain and ordinary meaning without resort to a subtle or forced construction to limit or expand the statute's operation. Bryant v. City of Charleston. 295 S.C. 408, 368 S.E.2d 899 (1988). If a statute's language is plain and unambiguous and conveys a clear and

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Chief Stewart
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January 21, 2004

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definite meaning, there is no occasion for employing rules of statutory interpretation and a court has no right either to look for or impose another meaning. Chestnut v. South Carolina Farm Bureau Mut. Ins. Co., 298 S.C. 151, 378 S.E.2d 613 (Ct.App.1989).

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Construing the provisions of Section 22-5-910, it appears that an individual would be entitled to have a magistrate's court conviction expunged if it follows a general sessions court conviction. As specified by Section 22-5-910, following a first offense conviction in magistrate's court, the defendant may seek an expungement order. The statute further provides that "if the defendant has had no other conviction during the three year period following the first conviction in a magistrate's court or a municipal court", an expungement maybe issued. Referencing these provisions, ifthe general sessions conviction preceded the first offense magistrate's court conviction, the first offense magistrate's court conviction could be expunged ifthere were no further convictions during the three year period following the first offense magistrate's court conviction. You next asked whether Title 56 offenses such as driving under the influence or driving under suspension are to be included as first offense convictions, since such are excluded from expungement pursuant to Section 22-5-910, so as to preclude expungements for subsequent magistrate court convictions. You indicated in our telephone conversation that you were asking whether if there was a Title 56 motor vehicle offense first, followed by another offense not within that category, such as simple assault, would the Title 56 offense count as a first offense magistrate's court conviction.

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Section 22-5-910 is arguably ambiguous as to the situation addressed by you. As specified by Section 22-5-910, a "conviction" encompasses all convictions, including guilty pleas, pleas of no lo contendere or the forfeiture of bail. In my opinion, a Title 56 conviction, if it preceded another conviction, such as for simple assault, could be considered a first offense conviction so as to preclude the expungement ofthe simple assault conviction since the simple assault conviction would no longer be a first offense conviction. There is no intent expressed in the legislation that the General Assembly did not intend for all convictions to be considered for purposes of whether an offense is a first offense conviction. In my opinion, the language ''this section does not apply to an offense involving the operation of a motor vehicle, to a violation of Title 50 or the regulations promulgated under it for which points are assessed, suspension provided for, or enhanced penalties for subsequent offenses authorized, or to an offense contained in Chapter 25 of Title 16, except first offense criminal domestic violence as contained in Section 16-25-20. ..." is to be construed solely to prohibit those convictions from ever being expunged. The language does not prohibit those convictions from otherwise being considered, such as in the situation addressed by you. To exempt a motor vehicle conviction from being considered as a first offense so as to allow expungement of a subsequent offense would also lead to a criminal domestic violence conviction, except first offense criminal domestic violence, from being considered as a first offense. Of course, the General Assembly could amend the statute if this construction is not what was intended. Moreover, the issuance of an expungement order is a matter within the discretion of the circuit court in that the

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provision states the " ... the circuit court may issue an order expunging the records." As explained in a letter from this office dated July 29, 1996 "where an Order ofExpungement which is valid on its face is received by SLED from a Circuit Court directing that SLED expunge particular records, such Order must be followed until it is vacated or set aside on appeal." In your third question you asked whether a Title 56 offense, such as speeding, should be included as a conviction during the three year period required for no additional convictions pursuant to Section 22-5-910 or the fifteen year period required for Section 22-5-920. The latter provision

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(B) Following a first offense conviction as a youthful offender, the defendant after fifteen years from the date of the conviction 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. However, this section does not apply to an offense involving the operation of a motor vehicle, to a violation of Title 50 or the regulations promulgated under it for which points are assessed, suspension provided for, or enhanced penalties for subsequent offenses authorized, to an offense classified as a violent crime in Section 16-1-60, or to an offense contained in Chapter 25 of Title 16, except as otherwise provided in Section 16-25-30. If the defendant has had no other conviction during the fifteen-year period following the first offense conviction as a youthful offender, the circuit court may issue an order expunging the records. 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 before the effective date of this section. Consistent with the preceding construction of question two, convictions for offenses such as speeding would be included as a conviction to be considered during the three year period or fifteen year period required for no additional convictions by the referenced statutes. Again, the term "conviction" includes all convictions, regardless of the offense. Of course, if such construction is not what was intended by the legislature, the General Assembly could amend the statute to specifically authorize expungements in such situation. Also, as indicated in the response to question two, a circuit court may issue an order expunging the records and such order must be given deference. You next asked whether as to Section 22-5-920 which authorizes expungement of specified offenses, does the statute require a subject to be actually sentenced under the provisions of the Y()Uthful Offender Act or only to meet the requirements for sentencing under the Youthful Offender Act. As set forth, Section 22-5-920 states that "(f)ollowing a first offense conviction as a youthful offender", the defendant may apply for expungement. Based upon my plain reading of the statute, it appears that for expungement purposes, an individual must actually be sentenced as a youthful offender in order to apply for expungement.

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Chief Stewart
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January 21, 2004

If there are any questions, please advise.

Sincerely,

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Charles H. Richardson
Senior Assistant Attorney General
cc:

Lieutenant Joseph Means

REVIEWED AND APPROVED BY:

Robert D. Cook
Assistant Deputy Attorney General