Can a DUI be expunged in Wisconsin?

Whether a DUI can be cleared at all

Wisconsin expungement is narrow and is decided at sentencing, not later. Under Wis. Stat. Section 973.015(1m)(a)1, the court may order at the time of sentencing that the record be expunged on successful completion of the sentence only where the person was under the age of 25 at the time of the offense and the maximum period of imprisonment for the offense is six years or less. A first offense of operating while intoxicated in Wisconsin is punished by forfeiture under Wis. Stat. Section 346.65(2)(am)1 rather than imprisonment, and the Court of Appeals held in Kenosha County v. Frett that Section 973.015 does not apply to civil forfeiture violations because expunction is available only for laws that carry some period of imprisonment. A criminal OWI, such as a second offense punishable by up to six months, can fall within the statute if the person was under 25 when the offense was committed and the sentencing court makes the order then.

“when a person is under the age of 25 at the time of the commission of an offense for which the person has been found guilty in a court for violation of a law for which the maximum period of imprisonment is 6 years or less, the court may order at the time of sentencing that the record be expunged”

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. Wisconsin writes the answer into the expungement statute itself. Wis. Stat. Section 973.015(1m)(a)1 states that the subsection does not apply to information maintained by the Department of Transportation regarding a conviction that is required to be included in a record kept under Section 343.23(2)(a). Section 343.23(2)(b) in turn provides that the record of suspensions, revocations and convictions that would be counted under Section 343.307(2), the provision that counts prior operating while intoxicated offences, shall be maintained permanently. The Department of Transportation states that most convictions on a driving record are eligible to be removed five years after the conviction date but that alcohol related convictions stay on the record indefinitely. The court's own petition form adds that only the court record of the conviction is expunged and that records of the police, the Crime Information Bureau, other law enforcement agencies and the district attorney are not affected.

“This subsection does not apply to information maintained by the department of transportation regarding a conviction that is required to be included in a record kept under s. 343.23 (2) (a).”

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

How long the wait is, and from when

Wisconsin sets no waiting period in years. Under Wis. Stat. Section 973.015(1m)(a)1 the decision is made at the time of sentencing, and under Section 973.015(1m)(b) the expungement takes effect on successful completion of the sentence. A person has successfully completed the sentence if there has been no conviction for a subsequent offense and, where the person was on probation, probation was not revoked and the conditions of probation were satisfied. The detaining or probationary authority then issues a certificate of discharge, which is forwarded to the court of record and which has the effect of expunging the record.

“A person has successfully completed the sentence if the person has not been convicted of a subsequent offense and, if on probation, the probation has not been revoked and the probationer has satisfied the conditions of probation.”

Automatic or by petition

Wisconsin has no Clean Slate law, but its expungement is not a later petition either: the court decides at sentencing under Wis. Stat. Section 973.015(1m)(a)1, and once the sentence is successfully completed the certificate of discharge has the effect of expunging the record. For a person who was neither placed on probation nor sentenced to jail or prison, the court system publishes a petition, form CR-266, used to ask the court to carry out an expungement the sentencing court had already ordered.

“Upon successful completion of the sentence the detaining or probationary authority shall issue a certificate of discharge which shall be forwarded to the court of record and which shall have the effect of expunging the record.”

Where it is filed, and what it costs

The expungement order itself is made by the sentencing court at the time of sentencing. Where the person was not placed on probation and not sentenced to jail or prison, the court system's form CR-266 is used to declare that the sentencing court ordered expungement, that the sentence including all court-ordered financial obligations has been completed, and that no other criminal offense was committed between the date of conviction and completion. The form states that only the court record of the conviction is expunged, that records of the police, the Crime Information Bureau, other law enforcement agencies and the district attorney are not affected, and that the conviction is not vacated or set aside. Where the person was on probation or was detained, Section 973.015(1m)(b) has the probationary or detaining authority issue the certificate of discharge to the court instead. No filing fee is stated on the statute or the form.

“only the court record of the conviction will be expunged; other court records and records of the police, the Crime Information Bureau, other law enforcement agencies, and the district attorney will not be affected, AND the conviction is not vacated or set aside.”

Whether a cleared DUI still counts as a prior

Wis. Stat. Section 346.65(2)(am) counts prior operating while intoxicated offences by reference to the suspensions, revocations and convictions counted under Section 343.307(1), using a 10-year window to raise a second offence to a criminal penalty and a lifetime count from the third offence onward. Because Section 973.015(1m)(a)1 leaves Department of Transportation records untouched and Section 343.23(2)(b) keeps those records permanently, an expunged court record does not remove the count.

“The record of suspensions, revocations, and convictions that would be counted under s. 343.307 (2) shall be maintained permanently.”

The statute: Wis. Stat. § 973.015

“973.015 Special disposition. ... the court may order at the time of sentencing that the record be expunged upon successful completion of the sentence if the court determines the person will benefit and society will not be harmed by this disposition.”