If I'm convicted of a minor offense and then pick up a second conviction during the waiting period, can I still get the first one expunged in South Carolina?
Plain-English summary
Section 22-5-910 lets a person expunge certain low-level convictions if they wait three years (for most minor offenses) or five years (for domestic violence in the third degree) and stay out of trouble during that window. Representative Wickensimer asked the AG five interlocking questions: what happens if you pick up a second conviction during the waiting period, does it matter whether the two offenses are first offenses or unrelated, and is a pardon still available even if expungement is not.
The AG, through Assistant Attorney General Sabrina Todd, said the statute is unforgiving on its main point: any non-traffic conviction during the three- or five-year waiting period is an absolute bar to expunging the original conviction, and additional time after that does not cure the disqualification. The statute simply has no mechanism to restore expungement eligibility once it is lost. Two unrelated first offenses do not change the answer. The only narrow safety valve is that the second, disqualifying conviction may itself qualify for expungement (under § 22-5-910 or one of the other expungement statutes), and a person who is barred from expungement may still apply for a pardon, which is governed separately by § 24-21-13(B) and § 24-21-950.
What this means for you
If you have a recent first-offense conviction in South Carolina
The waiting period is real, and a second conviction during it will close the § 22-5-910 door for the first one for good. A few practical points:
- "Conviction" includes guilty pleas, no-contest pleas, and forfeited bail. Even an out-of-state conviction during the waiting period disqualifies you.
- A minor traffic offense (anything not DUI/DUAC-related) is the only category that does not count as a disqualifying conviction.
- Pending charges (other than charges that have been pending for over five years) also block expungement until they are resolved.
- You only get one § 22-5-910 expungement in your lifetime. If you already used it, you cannot use it again.
If you missed the waiting period
You are not out of options, but the statute is. Look at three things:
- Whether the second conviction itself qualifies for expungement under § 22-5-910 or another statute. If yes, expunging the second conviction does not retroactively let you expunge the first one, but it cleans up the more recent record.
- Other expungement statutes (PTI, conditional discharges, drug court, juvenile, Youthful Offender Act). These are independent of § 22-5-910 and have their own rules.
- A pardon from the Board of Probation, Parole and Pardon Services. A pardon does not erase the conviction, but it restores civil rights and is a meaningful credential for employment and licensing applications.
If you are a defense lawyer counseling a client during the waiting period
Make sure the client understands that any conviction (including a guilty plea to a misdemeanor, including out-of-state) inside the waiting window is permanent for § 22-5-910 purposes. If a client picks up a charge during the window, a not-guilty disposition matters more than usual because it preserves the future expungement.
If you work in court administration or solicitor's office
The statute's plain reading controls. A clerk should not grant § 22-5-910 expungement to anyone with a non-traffic conviction during the waiting period, and the AG opinion confirms that subsequent good behavior cannot restart the clock.
Common questions
Q: Does a no-contest plea count as a conviction for the waiting period?
A: Yes. § 22-5-910(E) defines "conviction" to include a guilty plea, a plea of nolo contendere, or a forfeited bail bond.
Q: What about a speeding ticket during the waiting period?
A: That does not disqualify you. § 17-22-940(E) carves out minor traffic offenses unrelated to alcohol or drugs.
Q: My second conviction was a first offense for a totally different crime. Can I expunge the first one?
A: No. The statute does not treat unrelated first offenses any differently. The waiting period requires a clean record, full stop.
Q: Can the same § 22-5-910 order expunge both convictions?
A: Only if both convictions arose out of the same incident and were sentenced together. § 22-5-910(E) treats those as one conviction.
Q: How long does an out-of-state conviction matter?
A: Out-of-state convictions count the same as South Carolina convictions when determining whether you stayed conviction-free during the waiting period.
Q: What is the difference between an expungement and a pardon?
A: Expungement removes the public record of the conviction. A pardon is an act of grace from the state that restores civil rights but leaves the underlying record intact. The two are governed by different statutes and one is not a substitute for the other.
Q: I have to pay restitution. Does that matter for a pardon?
A: Yes. § 17-25-322(E) prohibits a pardon until restitution and any associated collection fees are paid in full.
Background and statutory framework
Section 22-5-910 was originally enacted in 1992 (Act 395) as a one-time clean slate for first-offense summary court convictions. It has been amended over time and now covers two categories of conviction: most offenses carrying up to 30 days in jail or a $1,000 fine, plus first-offense unlawful possession of a firearm or weapon (subsection A, three-year wait), and domestic violence in the third degree (subsection B, five-year wait). Motor vehicle offenses are excluded from subsection A altogether.
Subsection (C) imposes the conviction-free requirement during the waiting period. Subsection (D) says SLED keeps a non-public record of every § 22-5-910 expungement so a person cannot benefit from the statute twice. Subsection (F) bars expungement when criminal charges are pending (with a five-year-stale exception that is tolled while the defendant is on a bench warrant for failure to appear).
The pardon system is separate. Under S.C. Const. art. IV, § 14, the Governor has clemency power, but the General Assembly has delegated pardon eligibility decisions to the Board of Probation, Parole and Pardon Services. § 24-21-950 sets eligibility guidelines, none of which condition pardon eligibility on expungement eligibility. A person disqualified from § 22-5-910 expungement therefore retains the option to apply for a pardon, subject to restitution and other generally applicable rules.
Citations and references
Statutes:
- S.C. Code § 22-5-910 (Expungement of certain convictions)
- S.C. Code § 17-22-940 (Minor traffic offenses do not bar expungement)
- S.C. Code § 24-21-950 (Pardon eligibility guidelines)
- S.C. Const. art. IV, § 14 (Governor's clemency power)
Cases:
- Hodges v. Rainey, 341 S.C. 79, 533 S.E.2d 578 (2000) (statutory interpretation)
- State v. Hudson, 336 S.C. 237, 519 S.E.2d 577 (Ct. App. 1999) (plain language controls)
- State v. Kimbrough, 212 S.C. 348, 46 S.E.2d 273 (1948) (a pardon is an act of grace)
Source
- Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-clarifying-south-carolina-code-section-22-5-910/
- Original PDF: https://www.scag.gov/media/a20psjwd/wickensimerp-os-11062-final-opinion-9-11-2025-pdf.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
ALAN WILSON
ATTORNEY GENERAL
September 11, 2025
The Honorable Paul B. Wickensimer, Member
South Carolina House of Representatives
1105 Pendleton Street
312-D Blatt Building
Columbia, SC 29201
Dear Representative Wickensimer:
Attorney General Alan Wilson referred your letter to the Opinions section for a response.
After receiving communications from a constituent, you seek an opinion on the following
questions regarding South Carolina Code Section 22-5-910.
First: Should someone be convicted of an offense falling under SC Code Section
22-5-910(A), but then within three years’ time is convicted of another crime, after
three years from the date of this second conviction can that person still qualify for
consideration of the issuance of an expungement order by a court with jurisdiction
to do so?
Second: If the two convictions are first offenses involving two separate crimes,
does your opinion vary about the person’s eligibility for an expungement order
being issued for both convictions?
Third: Should someone be convicted of an offense falling under SC Code Section
22-5-910(B), but then within five years’ time is convicted of another crime, after
five years from this second conviction can that person qualify for expungement?
Fourth: If your opinion is that this person is not qualified to seek expungement
within three- or five -years’ time, do you see any time period elapsing that would
allow this person to seek expungement orders?
Fifth: If expungement is not available to this person, could they nevertheless seek
a pardon from our Governor for both convictions?
As discussed more fully below, we believe to receive an expungement pursuant to Section 22-5-
910, an individual must remain free of any subsequent conviction during the period the statute
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The Honorable Paul B. Wickensimer
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requires them to wait before applying for the expungement. However, a person who is not eligible
for an expungement under Section 22-5-910 because of a disqualifying subsequent conviction may
still be eligible to apply for a pardon.
Law/Analysis
Section 22-5-910 concerns the expungement of convictions falling within two categories.
Currently, the statute provides:
(A) Following a conviction for a crime carrying a penalty of not more than thirty
days imprisonment or a fine of one thousand dollars, or both, or a first offense
for unlawful possession of a firearm or weapon carrying a penalty of not more
than one year 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 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, including out-of-state convictions,
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.
(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. For the purpose of this section, any number
The Honorable Paul B. Wickensimer
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of offenses listed pursuant to subsection (A), for which the individual received
sentences at a single sentencing proceeding 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 unless the charges have been
pending for more than five years; however, this five-year time period is tolled
for any time the defendant has been under a bench warrant for failure to appear.
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.
S.C. Code Ann. § 22-5-910 (Supp. 2024).
When construing a statute, the primary goal is to understand and give effect to the intent
of the legislature. Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000). Where possible,
legislative intent “should be ascertained primarily from the plain language of the statute.” State v.
Hudson, 336 S.C. 237, 246, 519 S.E.2d 577, 581 (Ct. App. 1999). We believe the plain language
of Section 22-5-910 permits us to answer your questions about its application without resorting to
other rules of statutory construction.
In response to your first question, a person who has been convicted of an offense falling
under Section 22-5-910(A) is not eligible for an expungement of that offense if convicted of
another offense within three years following the initial conviction. We believe this is true even if
the person waits for three years following the second conviction without another new conviction.
Under the plain language of the statute, the convicted person is eligible to apply for an
expungement following the period designated for the type of offense in question. In the case of
an offense falling under subsection (A), the individual can apply “after three years from the date
of the conviction.” S.C. Code Ann. § 22-5-910(A). Ifthe person has had no other conviction in
any state during that three-year period, the circuit court may issue an order expunging the records
of arrest, conviction and any bench warrant associated with the conviction. S.C. Code Ann. § 22-
5-910(C). A conviction for a minor traffic-related offense that is not related in any way to driving
under the influence of alcohol or drugs does not count as a disqualifying conviction. S.C. Code
Ann. § 17-22-940(E) (Supp. 2024). To receive an expungement for an offense falling under
subsection (A), the individual must also not have any pending charges. S.C. Code Ann. § 22-5-
910(F). Charges that have been pending for more than five years do not bar the expungement, but
the five-year period is tolled during the time the person was under a bench warrant for failure to
appear. Id. Finally, an individual can only receive one expungement order pursuant to Section
22-5-910. Id. In summary, to qualify for an expungement for an offense falling under Section 22-
5-910(A), the individual must remain free of any conviction other than minor traffic-related
offenses for three years following the conviction. However, it is important to note the conviction
that disqualified a person from receiving an expungement under Section 22-5- -910(A) might itself
The Honorable Paul B. Wickensimer
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be capable of expungement if the individual meets the criteria of one of the many expungement
statutes,
Regarding your second question, our opinion does not change if the two convictions are
first offenses for separate crimes. When it was first enacted, Section 22-5-910 only permitted first
offense convictions in summary court to be expunged. Act No. 395, 1992 S.C. Acts 2191. Under
the current statute, however, expungements are not limited to first offenses except for unlawful
possession of a firearm or weapon. S.C. Code Ann. § 22-5-910(A). Although the statute permits
multiple convictions falling under subsection (A) to be expunged by a single order, the convictions
must have arisen from the same incident and sentences issued during a single sentencing
proceeding. S.C. Code Ann. § 22-5-910(E). If that is not the case, the first conviction is not
eligible for an expungement under Section 22-5-910. However, if the second conviction falls
within Section 22-5-910(A) or (B), the person may be eligible for an expungement of the second
offense following successful completion of the requisite waiting period with no subsequent
conviction as provided in subsection (C) and no pending charges as explained in subsection (F).
Our answer to your third question is in line with our answer to your first. Under subsection
(B), a person convicted of criminal domestic violence in the third degree may apply for an
expungement after five years from the date of conviction. S.C. Code Ann. § 22-5-910(B). Any
conviction during that five-year period disqualifies the person from receiving the expungement of
the initial conviction. S.C. Code Ann. § 22-5-910(C). As with convictions falling under
subsection (A), however, any conviction during that period for a minor traffic-related offense
completely unrelated to driving under the influence of alcohol or drugs is not a bar to the
expungement, S.C. Code Ann. § 17-22-940(E). The requirement that the individual also be free
from pending criminal charges works the same for an offense falling under subsection (B) as it
does with an offense falling under subsection (A). S8.C. Code Ann. § 22-5-910(F). Although a
conviction during the five-year waiting period prevents an individual from receiving an
expungement for a criminal domestic violence in the third degree, if the disqualifying conviction
itself qualifies for an expungement under Section 22-5-910 or some other statute, the individual
may be able to successfully seek expungement of the disqualifying conviction.
Responding to your fourth question, if a person is not eligible to receive an expungement
because of a disqualifying subsequent conviction, the additional passage of time will not allow the
person to receive an expungement of the first conviction under Section 22-5-910 as it is currently
written. To receive an expungement under the current statute, the person must apply for an
expungement after the requisite waiting period and have been free from additional convictions
during the waiting period. S.C. Code Ann. § 22-5-910(C). The statute provides no mechanism to
restore expungement eligibility once lost by a conviction during the required waiting period.
In answer to your final question, being ineligible for an expungement pursuant to Section
22-5-910 because of a subsequent conviction does not render the person ineligible for a pardon for
either conviction or both convictions. The Board of Probation, Parole and Pardon Services has the
exclusive duty to consider cases for pardons in South Carolina. S.C. Code Ann. § 24-21-13(B)
The Honorable Paul B. Wickensimer
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(Rev. 2025) (board to consider cases for parole, pardon, and other forms of clemency provided for
by law); see S.C. Const, art. IV, § 14 (providing the Governor has the power to grant reprieves and
commutations of death sentences and all other forms of clemency are regulated by law). Our
General Assembly established .pardon eligibility guidelines in Section 24-21-950 of the South
Carolina Code.. S.C. Code Ann. § 24-21-950 (Rev. 2025). The statute contains no language
indicating pardon eligibility is impacted by expungement eligibility. One of the guidelines
applicable to many convictions falling under Section 22-5-910 is that a person who has been
discharged from their sentence without the benefit of supervision must be considered for a pardon
on request after the date of discharge.. S.C. Code Ann. § 24-21-13(B). To determine the whether
the disqualifying conviction itself is eligible for a pardon, the individual must review the pardon
eligibility guidelines. In addition to the general guidelines, a defendant who has been ordered to
pay restitution to a victim may not be granted a pardon until the restitution and any collection fees
required by the order of restitution have been paid. S.C. Code Ann. § 17-25-322(E) (Rev. 2014).
Although there is no indication that being ineligible for expungement prevents a person from
applying for a pardon, it is important to remember that a pardon is an act of grace and can be
refused. State v. Kimbrough, 212 S.C. 348, 358, 46 S.E.2d 273, 277 (1948),
Conclusion
To be eligible for an expungement pursuant to Section 22-5-910, the convicted person must
remain conviction-free during the period between the original conviction and the time they are
first eligible to apply for an expungement. Failing to remain free from all convictions save for
minor traffic offenses during the waiting period is an absolute bar to receiving an expungement of
the original conviction. Whether the person is eligible for an expungement of the second,
disqualifying conviction will depend on the nature of the offense and whether it qualifies for
expungement under Section 22-5-910 or some other expungement statute. The inability of a
person.to receive an expungement pursuant to Section 22-5-910 because of the person’s failure to
remain conviction free during the waiting period required by statute does not render the initial
conviction or the subsequent conviction ineligible for a pardon and pardon eligibility must be
judged based on Section 24-21-13.
Sincerely,
Geom & wel
Sabrina C. Todd
Assistant Attorney General
The Honorable Paul B. Wickensimer
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September 11, 2025
REVIEWED AND APPROVED BY:
K ert D. Cook
Solicitor General Emeritus