Can a DUI be expunged in Kansas?

Whether a DUI can be cleared at all

K.S.A. 21-6614(d)(1) sets a specific rule for driving under the influence: no person may petition for expungement until five or more years have elapsed since the person satisfied the sentence, completed the terms of a diversion agreement, or was discharged from probation, a community correctional services program, parole, postrelease supervision, conditional release or a suspended sentence, if convicted of a first violation of K.S.A. 8-1567, including any diversion for such violation. A second or subsequent violation carries a ten-year wait under paragraph (2).

“No person may petition for expungement until five or more years have elapsed since the person satisfied the sentence imposed or the terms of a diversion agreement or was discharged from probation ... if such person was convicted of a first violation of K.S.A. 8-1567”

The driving record is a separate record

This is the part most summaries leave out. A court can seal or expunge the criminal case and the licensing agency can still keep the DUI on the driver record, where it reaches insurers and counts as a prior offence if there is a second one.

Not cleared. The Department of Revenue's Division of Vehicles records the expungement itself as an entry on the Kansas driving record. Its guide to reading a Motor Vehicle Report lists code CA2 for a DUI conviction or diversion expungement, alongside code DI1 for a court conviction of driving under the influence and DI8 for entering a diversion agreement after a DUI arrest. K.S.A. 21-6614 directs the clerk to send the order to the Kansas Bureau of Investigation and other criminal justice agencies; it does not direct the Division of Vehicles to remove the entry.

“CA2 DUI conviction or diversion expungement”

What else sits on that record: suspensions and points in Kansas.

How long the wait is, and from when

Five years for a first violation of K.S.A. 8-1567, ten years for a second or subsequent violation, measured from satisfying the sentence, completing a diversion agreement, or discharge from probation, community corrections, parole, postrelease supervision, conditional release or a suspended sentence. K.S.A. 21-6614(d)(3) applies these periods to all violations committed on or after July 1, 2006, and disapplies the ten-year rule to violations committed on or after July 1, 2014 but before July 1, 2015. The general three-year rule in subsection (a)(1) is expressly subject to subsection (d).

“No person may petition for expungement until 10 or more years have elapsed since the person satisfied the sentence imposed or was discharged from probation ... if such person was convicted of a second or subsequent violation of K.S.A. 8-1567”

Automatic or by petition

Kansas clears a record only on petition. K.S.A. 21-6614(g)(1) requires the court to set a hearing and notify the prosecutor and the arresting law enforcement agency. Under subsection (h) the court orders expungement only if it finds the petitioner has not been convicted of a felony in the past two years with none pending, that the circumstances and behaviour of the petitioner warrant it, and that expungement is consistent with the public welfare. Subsection (j) requires a person to be told of the ability to expunge when convicted or when entering a diversion agreement.

“At the hearing on the petition, the court shall order the petitioner's arrest record, conviction or diversion expunged if the court finds that: ... (2) the circumstances and behavior of the petitioner warrant the expungement; (3) the expungement is consistent with the public welfare;”

Where it is filed, and what it costs

K.S.A. 21-6614(g)(2) sets a docket fee of $176 for a petition for expungement, except as otherwise provided by law. The petition must state the defendant's full name, the name used at the time of arrest, conviction or diversion if different, sex, race and date of birth, the crime, the date of the arrest, conviction or diversion, and the identity of the convicting court, arresting authority or diverting authority. Any person with relevant information may testify at the hearing. For a specialty court program completion under subsection (a)(3), the court may waive all or part of the docket fee.

“Except as otherwise provided by law, a petition for expungement shall be accompanied by a docket fee in the amount of $176.”

Whether a cleared DUI still counts as a prior

An expunged Kansas conviction still counts. K.S.A. 21-6614(i)(1) states that upon conviction for any subsequent crime the expunged conviction may be considered as a prior conviction in determining the sentence, and (i)(4) allows disclosure in a later prosecution for an offence that requires a prior conviction of the expunged type. K.S.A. 8-1567(i)(1) counts convictions and diversions occurring on or after July 1, 2001 when deciding whether a violation is a first, second, third, fourth or subsequent offence, and adds that nothing prevents a court from considering convictions or diversions occurring during the person's lifetime in setting the sentence within those limits. K.S.A. 21-6614(i)(2)(F) also requires disclosure on an application for a commercial driver's licence.

“Upon conviction for any subsequent crime, the conviction that was expunged may be considered as a prior conviction in determining the sentence to be imposed”

The statute: K.S.A. 21-6614

“Expungement of certain convictions, arrest records and diversion agreements; procedure; restoration of person's right to keep and bear arms.”