Kentucky Expungement Law Overview

There is a lot of misinformation about expungement in Kentucky. This overview is to assist you in determining whether you qualify for expungement. It is written by attorney Benham Sims, who testified as a former District Judge, State Prosecutor of the Year, and one of Kentucky leading expungement advocates before the House Judiciary Committee for passage of Kentucky's expungement law.

Helpexpungeme.com Partner, Benham Sims (Left) testifying with Expungement,
Bill Sponsor-Rep. Darryl Owens (Center), and Greater Louisville, Inc. Vice President Sarah Davisher (Right) before House Judiciary Committee in support of passage of House Bill 40.

One in four adults in Kentucky has a criminal charge on their record. With the passage of Senate Bill 57, over 136,000 Kentuckians can petition to expunge their eligible Class D felony.

Over 96% of employers now run criminal background checks, if you have a criminal record-over 50% of the employers will not grant you an interview. The average person with a criminal record makes 40% less than a twin brother or sister without a criminal history!

Many Kentuckian mistakenly believe that dismissed charges are erased from their record automatically, or that employers do not look at charges that occurred over five years ago. This is simply false. Your state criminal record will contain every charge on your record including dismissed charges, traffic charges, and all convictions, no matter how many years ago they were committed. Charges do not, and never have, fallen off your criminal record after 5 years. Minor traffic offenses, excluding DUI's, automatically were purged from the Transportation Cabinet records, but never from your criminal record. The only process for removal of criminal charges and convictions is filing a Petition in the sentencing court to expunge your record. Even a Governor's Pardon does not automatically remove a charge from your record.

ELIGIBILITY

I. Dismissed Violations, Misdemeanors, and Felonies:

You are eligible to expunge dismissed Traffic Violations and Misdemeanors in Kentucky 60 days after the case has been dismissed by a Judge. The statutes dealing with expungement of dismissed felonies depend on a number of factors. It is important to contact an experienced criminal defense attorney when attempting to expunge dismissed felony charges. For example, you must determine whether the dismissed felony occurred in District Court or Circuit Court. Were the felonies dismissed with prejudice or without prejudice? Were the dismissed as merged into another plea? Were the felony charges presented to the Grand Jury or not? Are the charges in limbo awaiting action by the Prosecutor? These are the types of questions an experienced expungement lawyer will want to have answered before filing for expungement. In addition, we have 120 counties in Kentucky with hundreds of circuit and district clerks, prosecutors and judges each of whom often use different processes with expungement cases.

ELIGIBILITY
Kentucky first passed expungement reform in the late 1980s. In. 2016, Kentucky passed House Bill 40 which permitted the expungement of 61 eligible Class D felony offenses. In the Spring of 2019, the General Assembly passed Senate Bill 57 which now permits the expungement of hundreds of Class D felony offenses previously barred from expungement. Under either law, expungement is not automatic, prosecutors and victims can object, and often do object to a petition to void and expunge a felony. Senate Bill 57, while permitting the expungements of hundreds of Class D felonies, places the burden of proof by clear and convincing evidence on the person petitioning the court to expunge their record. It is important to prepare for this hearing with an experienced expungement attorney.

Our expungement law now permits for the first time the right to expunge multiple eligible misdemeanor offenses, even for offenders who committed more than one offense in a 5-year period. Hundreds of thousands of Kentuckians are now eligible to expunge their record. House Bill 40 and Senate Bill 57 now permits hundreds of thousands of Kentuckians the opportunity to petition the court to expunge the eligible criminal charge on their Kentucky criminal record, who were previously denied the right to expunge.

I. Dismissed Violations, Misdemeanors, and Felonies
You are eligible to expunge dismissed Traffic Violations and Misdemeanors in Kentucky 60 days after the case has been dismissed by a Judge. Dismissed felonies have a unique set of laws and protocols to follow. It is important to review petitions to void and expunge a felony charge with an experienced criminal defense lawyer.

II.Eligibility for expungement of Misdemeanors Convictions (Non-DUI's) in Kentucky:
If it has been five years since the end of your sentence or probations (whichever is longer) and you have not pled guilty to a criminal offense in the last 5 years, and you have no new pending criminal charges. The Petition for Misdemeanor conviction shall be filed no sooner than five (5) years after the completion of the person's sentence or five years after the successful completion of the person's probation, whichever occurs later. A filing fee of $100.00 is charged by the clerk to file an expungement for a misdemeanor conviction.

At the hearing the Judge must find:
a. The offense was not a sex offense or an offense committed against a child.
b. the person had not in the five years prior to the filing of the petition for expungement been convicted of a felony or a misdemeanor.
c. No proceeding concerning a felony or misdemeanor is pending or being instituted against the person; and
d. the offense is not one subject to enhancement for a second or subsequent offense or the time for such enhancement has expired

Please note with the passage of Senate Bill 56, a person cannot petition to expunge their DUI conviction until 10 years after the end of their sentence or probation.

III. DUI's
If you pled guilty to DUI you must now wait 10 years after your sentence or probation (whichever is longer) to expunge your DUI misdemeanor conviction. DUI felony convictions are not eligible for expungement. A filing fee of $100.00 is charged by the clerk to file an expungement of a DUI misdemeanor conviction. In 2016, the Kentucky General Assembly passed, and the Governor signed into law Senate Bill 56. This Bill substantially enhanced penalties for subsequent DUI offenses. The 2016 amendment increased the look-back period in Kentucky from 5 years to 10 years. The amendment also now requires those convicted of DUI misdemeanor offenses must wait 10 years to expunge a DUI offense. Kentucky defense attorney's challenged the law as unconstitutional, but the Supreme Court ruled in Kentucky Supreme Court in Commonwealth v. Jackson and Commonwealth v. Denson, (2016-SC-000530 and 2016 SC 000531): "a plea entered without knowledge of unanticipated and unforeseeable consequences that may not become manifest for many years does not have the constitutional significance of a plea entered without knowledge of its immediate foreseeable consequence, or an ignorance of fundamental rights to remain silent, to a jury trial and to confront witnesses." In other words, the 10-year look-back is now law.

IV. Felony Expungement-Two Tracks to Petition to Expunge Your Record





 


Track 1
In 2016 Kentucky passed House Bill 40, which permitted, for the first time, the expungement of 61 Class D felonies such as felony theft, burglary, possession of controlled substance. The law permits the expungement of only one (1) eligible Felony conviction or a series of Class D Felony eligible felony charges arising from a single incident. In order to grant your expungement, the Court must find:

     1.    The charge is one of the 61 eligible Class D felonies; and
     2.    The person had not previously had a felony conviction vacated and the record expunged pursuant to this law; and
     3.    No proceeding concerning a felony or misdemeanor is pending or being instituted against the person; and
     4.    The petition to expunge was filed no sooner than five (5) years after the completion of the person's sentence, or five years after the successful completion of the person's probation or parole, whichever occurs later; and
     5.    The person has not been convicted of a felony or a misdemeanor in the five years prior to the filing for expungement


If you have a felony record, go to my website, helpexpungeme.com to determine whether you qualify to expunge your felony record. Here is the list of 61 eligible felony offenses: https://helpexpungeme.com/61-class-d-felonies/

Track 2
In the spring of 2019, the Kentucky General Assembly passed Senate Bill 57 which now permits the expungement of hundreds of other Class D felony offenses that were previously barred from expungement. The new law goes into effect on July 15, 2019. Senate Bill 57 still prohibits the expungement of DUI felony charges, any offenses committed against a child, and sex offenses. In addition, the law prohibits the expungement of a breach of public trust offense. But instead of just 61 Class D offenses eligible for expungement under House Bill 40, Senate Bill 57 opens the door for expungement of hundreds of other previously not eligible Class D felony offenses.

The 2019 law (Senate Bill 57) requires:

The person had not:
     A.    After the effective date of this Act, had a felony conviction vacated and the record expunged;
     B.    The person had not in the five (5) years prior to the filing of the application to have the judgment vacated been convicted of a felony or a misdemeanor; and
     C.    No proceeding concerning a felony or misdemeanor is pending or being instituted against the person.
     D.    The person has been rehabilitated and poses no significant threat of recidivism.


If the prosecutor or victim objects, the court shall schedule a hearing within one hundred twenty (120) days of the Commonwealth's response. The prosecutor shall specify in the objection the reasons for believing a denial of the application is justified. At the hearing at which the applicant or his or her attorney must be present, the applicant must prove by clear and convincing evidence that:
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You can review the bill yourself by clicking on: https://apps.legislature.ky.gov/recorddocuments/bill/19RS/sb57/bill.pdf
     1.    Vacating the judgment and expunging the record is consistent with the welfare and safety of the public;
     2.    The action is supported by his or her behavior since the conviction or convictions, as evidenced that he or she has been active in rehabilitative activities in prison and is living a law-abiding life since release;
    3.    The vacation and expungement is warranted by the interests of justice;
    4.    Any other matter deemed appropriate or necessary by the court to make a determination regarding the petition for expungement is met.


At the hearing, you may testify as to the specific adverse consequences you may be subject to if the application is denied. The court may hear the testimony of witnesses and any other matter the court deems proper and relevant to its determination regarding the application.

The Commonwealth may present proof of any extraordinary circumstances that exist to deny the application. A victim of any offense listed in the application shall have an opportunity to be heard at any hearing held under this section.

If the court determines that circumstances warrant vacation and expungement and that the harm otherwise resulting to the applicant clearly outweighs the public interest in the criminal history record information being publicly available, then the original conviction or convictions shall be vacated, and the records shall be expunged.

The order of expungement shall not preclude a prosecutor's office from retaining a nonpublic record for law enforcement purposes only.

I believe we can personalize you to the court and persuade the judge to expunge your order. Because I need to personalize you to the court, I ask that you call my receptionist Charlene Manley at (502) 589-6190 to schedule an appointment to meet with you. If you live out of town, my receptionist will schedule a phone interview. I do not charge for the initial expungement client interview

You can review the bill yourself by clicking on: https://apps.legislature.ky.gov/recorddocuments/bill/19RS/sb57/bill.pdf

V. Process

 

The process of expungement is quite simple with my office. I meet with clients in person or by phone and learn their story, as well as, review their cases. I am required by statute to order both

your official Kentucky Administrative Office of the Court Criminal History and a Kentucky State Police Certificate of Eligibility. The state charges me $40.00 for these documents. I cannot review your criminal history on Courtnet without your: full name, date of birth, and social security number.

Please go to my website https://helpexpungeme.com/ on your smart phone or computer and complete the contact us form. I will look up your criminal history, review it with you, and order the two state forms listed above.

After I receive your records, I will review them with you and prepare the appropriate notices, petitions, motions and orders for the courts. The state has up to 30 days to send me your records. Once I receive the records, I only have 30 days in which to file the petitions and pay the court fees. I will be able to review your records with you and file the appropriate Motions and Orders with the court. If you pled guilty to a misdemeanor, the court charges $100.00 to file for a misdemeanor expungement petition and order. If the charge is for a felony expungement, the court charges $250.00 for filing a felony expungement petition and order. The legislature after July 15, 2019 will permit the $250.00 fee to be paid in installments. The first installment of $50.00 must be paid at the filing of the felony expungement petition. The remaining $200.00 can be paid over an 18-month period. The expungement order will not be entered until the balance is paid.

Generally speaking, my fees range from $250.00-$500.00 per misdemeanor expungement. My fees for felony expungement range from $1000.00 to $2500.00 for a felony expungement. The fees depend on the number, complexity, eligibility and time involved. Please call my receptionist Charlene Manley at (502) 589-6190 to schedule an appointment to meet with you. I do not charge for the initial expungement client interview!



V. Pardons
If the Governor has granted a full Pardon, you may file with the court in which he-or she was convicted an application to have the judgment vacated.