Can a DUI be expunged in South Carolina?

Whether a DUI can be cleared at all

South Carolina's general conviction expungement section lets a person apply three years after a conviction for a crime carrying not more than thirty days' imprisonment or a fine of one thousand dollars, but the section states that it does not apply to an offence involving the operation of a motor vehicle. Driving under the influence is also excluded from pretrial intervention: a person must not be considered for intervention if charged with driving under the influence or driving with an unlawful alcohol concentration. Where a charge was discharged, the proceedings were dismissed, or the person was found not guilty, expungement is available under Article 9 of Title 17, Chapter 22.

“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”

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. A driving under the influence conviction is outside the expungement section in the first place, so it stays on the record the Department of Motor Vehicles keeps. S.C. Code Ann. § 56-5-2940 states that offences occurring within ten years, including and immediately preceding the date of the last offence, count as prior offences for the driving under the influence penalty scale. S.C. Code Ann. § 56-1-750 separately governs how traffic points age off, counting violations at full value for twelve months, half value from twelve to twenty-four months, and not at all after twenty-four months, which is a points calculation rather than a removal of the conviction.

“only those offenses which occurred within ten years, including and immediately preceding the date of the last offense, shall constitute prior offenses within the meaning of this section”

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

How long the wait is, and from when

No waiting period reaches a driving under the influence conviction, because S.C. Code Ann. § 22-5-910 does not apply to an offence involving the operation of a motor vehicle. For the convictions the section does reach, the wait is three years from the date of the conviction, with no other conviction during that three-year period. Where the charge was discharged, dismissed, or ended in a not-guilty finding, S.C. Code Ann. § 17-1-40 governs the destruction and sealing of the records with no waiting period stated.

“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”

Automatic or by petition

South Carolina clears records on application. S.C. Code Ann. § 22-5-910 requires the defendant, or someone acting on the defendant's behalf, to apply to the circuit court for an order. S.C. Code Ann. § 17-1-40 sets out what happens once a record is expunged under Article 9 of Title 17, Chapter 22 following a discharge, dismissal or not-guilty finding, including the destruction of the arrest and booking record and the retention of sealed copies by law enforcement, prosecution and detention agencies for three years and one hundred twenty days. No Clean Slate style automatic sealing law appears in these sections.

“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”

Where it is filed, and what it costs

S.C. Code Ann. § 22-5-910 has the defendant, or someone acting on the defendant's behalf, apply to the circuit court, and the court may issue the order if there has been no other conviction during the qualifying period. No person may have a record expunged under the section while criminal charges of any kind are pending, unless those charges have been pending more than five years, and no person may use the section more than once. After an expungement the State Law Enforcement Division keeps a nonpublic record of the offence and the expungement date so that the right is not used twice, and that record is exempt from release except to authorised law or court officials.

“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”

Whether a cleared DUI still counts as a prior

S.C. Code Ann. § 56-5-2940 counts only offences occurring within ten years, including and immediately preceding the date of the last offence, as prior offences for the driving under the influence penalty scale, with an exception stated in subsection (A)(4).

“Except as provided in subsection (A)(4), only those offenses which occurred within ten years, including and immediately preceding the date of the last offense, shall constitute prior offenses within the meaning of this section.”

The statute: S.C. Code Ann. § 22-5-910

“SECTION 22-5-910. Expungement of criminal records. (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”