Can a DUI be expunged in Nebraska?

Whether a DUI can be cleared at all

Nebraska does not erase a DUI conviction, but the sentencing court may nullify it. Under Neb. Rev. Stat. § 29-2264(2) a person sentenced to probation, to a fine only, or to community service may petition the sentencing court to set the conviction aside once the probation, fine or community service is complete. A conviction that carried a jail term falls under § 29-2264(3), and subdivision (3)(b)(iii) requires the petition to be denied for any misdemeanor or felony motor vehicle offense under the Nebraska Rules of the Road, which is where DUI at § 60-6,196 sits. Sealing under § 29-3523 is limited to dismissals, acquittals, completed diversions, deferred judgments, pardons and certain other cases, so it does not cover a DUI conviction.

“(2) Whenever any person is convicted of an offense and is placed on probation by the court, is sentenced to a fine only, or is sentenced to community service, he or she may, after satisfactory fulfillment of the conditions of probation for the entire period or after discharge from probation prior”

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. Neb. Rev. Stat. § 29-2264(6) lists what a set-aside does not do, and it expressly does not affect the assessment or accumulation of points under § 60-4,182, or eligibility for or obligations relating to a commercial driver's license. The Department of Motor Vehicles driver record retention schedule assigns a 55-year retention period to driving under the influence convictions under § 60-6,196, first through fifth offense, including the 0.15 and higher codes.

“The setting aside of a conviction in accordance with the Nebraska Probation Administration Act shall not: ... (m) Affect the assessment or accumulation of points under section 60-4,182; or (n) Affect eligibility for, or obligations relating to, a commercial driver's license.”

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

How long the wait is, and from when

Neb. Rev. Stat. § 29-2264(2) sets no fixed number of years. The petition may be filed after satisfactory fulfillment of the conditions of probation for the entire period, or after early discharge from probation, and after payment of any fine and completion of any community service. Where a petition falls under subsection (3) and is denied, § 29-2264(3)(b)(iv) bars a new petition within two years of the denial. For a dismissed or diverted case, § 29-3523(3) removes the record from public view without a filing: one year from the date of arrest or citation when no charges are filed, two years when charges are not filed after a completed diversion, and immediately on acquittal or entry of an order dismissing the case.

“(a) When no charges are filed as a result of the determination of the prosecuting attorney, the criminal history record information shall not be part of the public record after one year from the date of arrest, citation in lieu of arrest, or referral for prosecution without citation; (b) When”

Automatic or by petition

A conviction is cleared only by filing. Neb. Rev. Stat. § 29-2264 requires a petition to the sentencing court and a hearing, and the Nebraska Judicial Branch states the decision is entirely the judge's. Nebraska has no automatic sealing law that reaches convictions. Records of arrests that did not lead to a conviction come off the public record on their own under § 29-3523(3) after the periods that section sets.

“Being eligible to petition for a set-aside does not guarantee the petition will be approved by the judge. It is completely up to the judge presiding over the hearing whether to grant a petition that has met the minimum eligibility requirements.”

Where it is filed, and what it costs

The Nebraska Judicial Branch directs a petitioner to complete form CC 6:11, Petition to Set Aside Criminal Conviction, together with form CC 6:11.2, Order Setting Aside a Criminal Conviction, and file in the court where the case was heard, in person, by mail or by fax. A county court clerk typically schedules the hearing and mails notice to the petitioner and the prosecutor; in district court the petitioner contacts the judge's bailiff for a date and files a Notice of Hearing, form DC 1:15. A separate petition is required for each conviction. The petitioner must attend the hearing and testify.

“First Step: Read the Instructions for and complete the Petition to Set Aside Criminal Conviction ( CC 6:11 ). Read the instructions for and complete the Order Setting Aside a Criminal Conviction ( CC 6:11.2 ) ... File your Motion in the court where the case was heard.”

Whether a cleared DUI still counts as a prior

A set-aside does not stop the conviction from counting later. Neb. Rev. Stat. § 29-2264(6) provides that setting aside a conviction does not preclude use of the conviction for the purpose of determining sentence on any subsequent conviction, and does not preclude proof of the conviction where an offender is charged with a subsequent offense and the penalty is increased if the prior conviction is proved.

“(d) Preclude use of the conviction for the purpose of determining sentence on any subsequent conviction of a criminal offense; (e) Preclude the proof of the conviction as evidence of the commission of the offense in the event an offender is charged with a subsequent offense and the penalty provided”

The statute: Neb. Rev. Stat. § 29-2264

“29-2264. Probation; completion; conviction may be set aside; conditions; retroactive effect.”