Many people regret the times in their lives when they were “young and stupid” or “at the wrong place at the wrong time.” Not all who are convicted of a crime end up spending the rest of their lives revolving in and out of jail. For many, a conviction–and perhaps just the arrest–is a wake-up call setting them back on the right path.
If you were convicted of a crime, you probably felt a sense of panic and even embarrassment. If you’ve kept yourself out of trouble, expungement can be a way to help put those feelings behind you and to move on with your life. You truly have a chance to wipe the slate clean.
Now you need to know answers to important questions in order to navigate this highly technical legal process. Here are answers to some of the most common questions people ask when they want to get their criminal records expunged.
How the expungement process works
Under South Carolina law, an expungement is the destruction of criminal records relating to an arrest or a conviction. So what does expungement of criminal records mean in plain terms? Basically, you (and your record) are restored to the point in time prior to the arrest. Your criminal record looks like it never happened.
If you qualify for an expungement, which varies some based on various factors, you or your attorney will turn in your application to the Solicitor’s Office. The expungement application eventually makes its way to the South Carolina Law Enforcement Division, or SLED, and to the Circuit Court of South Carolina for a court order expunging the records of the arrest and conviction.
Who qualifies for expungement?
South Carolina law is very specific about which arrests and convictions that can be expunged. Here are the key stipulations your situation must meet:
- The crime you’re convicted of carried a punishment less than a $1,000 fine or 30 days in jail.
- Three years must have passed since the date of your conviction, except for a domestic violence offenses and Youthful Offender Act (YOA) cases.
- The crime you were convicted of was not a felony.
- The proceedings could have been held in magistrate, municipal or general sessions court. (Note: all General Sessions offenses are not eligible for expungement.)
Which crimes qualify for an expungement?
South Carolina has nine types of expungement, each having its own set of requirements:
- Not convicted. Your charge was dismissed, not prosecuted, nolle prossed–or you were found not guilty. There is no fee for this type of expungement.
- Completed pretrial intervention program. You successfully completed a pretrial intervention program. This allowed your case to be dismissed before it went to trial.
- Successfully completed Traffic Education Program (TEP program).
- Successfully completed Alcohol Education Program (AEP Program).
- Fraudulent check. You were convicted of a first offense fraudulent check misdemeanor. To qualify for expungement, one year must pass from the date of your conviction, and you must have no subsequent or prior convictions.
- You received a conditional discharge from the court, and you fulfilled all the terms of your discharge.
- General misdemeanor. You were convicted of a first offense misdemeanor with a maximum possible sentence of up to a $1,000 fine and/or 30 days in jail. This would include first offense simple possession of marijuana. Three years have passed since the date of your conviction, and you have no subsequent convictions. If the conviction is for criminal domestic violence, five years must pass from the date of your conviction with no subsequent convictions.
- YOA. Five years must pass from the date you completed your sentence, and you must have no subsequent convictions or violations while you were on Youthful Offender Act (YOA) parole.
- Failure to stop for a blue light. You were convicted of a first offense for failure to stop a motor vehicle when signaled by law-enforcement vehicle. Three years have passed since the date of your conviction, and you have no subsequent convictions. Exception: if the FTSBL was dismissed pursuant to a plea agreement (even in Transfer Court), it is not expungeable.
An attorney can advise you of any other statutory provisions that apply to your particular situation.
Why would an expungement be denied?
Just because you submit the necessary paperwork and pay the requisite fees for an expungement, that doesn’t mean your record will be expunged. There are instances when the Solicitor’s Office denies an expungement. Below are instances where this may occur:
- You were convicted of a felony.
- You were convicted of a General Sessions offense and served a period of probation.
- You were convicted of driving under the influence (DUI).
- You were convicted of a driving offense and did not complete the Traffic Education Program (TEP).
- You were convicted of an offense that involved a motor vehicle (car, truck, etc.) and you did not complete the Traffic Education Program (TEP).
- You have already had your record expunged once before.
- You have other criminal charges currently pending.
- The State or prosecuting agency believes the evidence in the case needs to be preserved.
- Your charges were dismissed as part of a plea agreement.
- You’ve been convicted of an offense during the three year period after the offense you are trying to get expunged. For example, you were convicted of assault and battery 3rd degree in 2013. You would have been eligible for an expungement in 2016, but you were arrested and convicted in 2015 for shoplifting. Because you were convicted (found guilty or plead guilty) for shoplifting in 2015, you cannot get the assault and battery expunged.
How much do expungements cost?
The total amount of money it will most likely cost you for an expungement in filing fees and administrative fees is $310.
The bulk of the cost ($250) is paid to the Solicitor’s Office. This administrative fee is the non-refundable and is paid directly to the Solicitor’s Office. This means you will not receive a refund for this fee even if the expungement doesn’t go through (e.g. your crime is ineligible or the Solicitor does not consent to the expungement). The Solicitor can choose to waive this $250 fee when it can be determined you were falsely accused of a crime because of identity theft.
After the $250 to the Solicitor’s Office, $25 (by certified check or money order) goes to SLED, and $35 (per individual order) goes to the Clerk of Court for the filing fee.
Do I have to pay for an expungement?
The cost of expungements depends on the outcome of your case.
You will have to pay for an expungement if:
- You plead guilty.
- You plead “no contest” (nolo contendere).
- You forfeited bail.
- The Solicitor determines you were wrongfully convicted of a crime due to someone stealing your identity.
You will not have to pay for an expungement if:
- You were found not guilty
- The case was dismissed by the prosecutor or law enforcement
Are expungements worth it?
Yes. If you’re eligible to have something expunged from your record, you should consider taking advantage of this opportunity. You never know when you can benefit from having a clean record. Once the expungement process begins, it can take up to six months to obtain the expungement order.
Other commonly asked questions
So far, the biggest questions related to expungement have been covered, but many more are bound to be on your mind, so here are answers to even more questions.
Do I need an attorney?
Getting an expungement order can be tricky if you don’t know your way through the process. Most people learn the process as they go along. But an attorney who has handled numerous expungements can help you save time and effort.
Does expungement remove arrest records?
Yes, if you qualify for an expungement and the expungement order is granted, the arrest record for that particular crime will be expunged.
The arrest and booking record, files, mug shots, DNA profile (if your DNA was taken) and fingerprints are all destroyed. Also no evidence of the record can be retained by any municipal, county or state law enforcement agency. The arrest record should also be removed from any Internet-based public record no later than 30 days from the disposition date.
How often are expungements granted?
If you’re eligible for an expungement, the expungement is generally granted.
Can an expungement be denied?
Yes. An expungement can be denied if the Solicitor does not consent to expunging the charge. An expungement can also be denied if the charge isn’t eligible for expungement because of SC law.
Do expungements show on background checks?
No. The whole point of an expungement is to restore you to the place you were prior to your arrest. This includes the arrest records that could be found on a background check.
Does expungement include FBI records?
Not necessarily. Expungement typically erases records only available to the public.
Does expungement clear a driving record?
No. Any offenses involving motor vehicles are not eligible for expungement.
An expungement clears your criminal record but not your driving record. Your driving record is not the same thing as your criminal record.
Will an expungement erase my arrest record?
Will an expungement erase my fingerprints?
Will an expungement mean conviction?
No. An expungement is the destruction of your criminal record. A conviction means you plead guilty, plead no contest (“no contendere”), were found guilty (in a jury trial or bench trial). If you have a conviction, it will be on your criminal record unless you get it expunged.
How long does expungement take?
From the time you apply for the expungement at the Solicitor’s Office until you receive the expungement order, it can take up to six months.
Is expungement the same as sealed?
No. An expungement is a destruction of criminal records. Sealed means the file still exists with the court.
Where do I get expungement forms?
Your attorney can provide expungement forms for you, or you can get them at the Solicitor’s Office where your charge was pending.
Does expungement restore gun rights?
If the crime you were convicted of causes you to lose your gun rights and you get that crime expunged, then yes.
Where do I file expungement?
Applications for expungement of all eligible criminal records must be administered by the Solicitor’s Office in the circuit where the offense occurred. You do not file expungements with the Clerk of Court. There are certain forms that must be used to get your expungement. You can get these at the Solicitor’s Office in the county where you were charged.
Are you eligible for expungement?
Follow these steps to find out:
Click here and follow the instructions on the page.
Fax the results to 843.821.0031 or click here, attach your results, and email Susan.
Getting help with your expungement
It’s important to consider speaking with a criminal defense attorney, one who can guide you through the pros and cons of your case and advise you on defenses you may have. If you’re facing criminal charges use this form, or call 843-607-9800 to speak with attorney Susan Williams.