Expunging a criminal conviction in Missouri: Lessons learned
Vol. 76, No. 4 / July - Aug. 2020
Patrick Deaton is a solo practitioner in St. Louis who has represented people seeking expungements in the counties of St. Charles, St. Louis, and the City of St. Louis.
It has been two years since § 610.140, RSMo 2016, became effective on Jan. 1, 2018, making it easier to expunge a conviction in Missouri for a felony, misdemeanor, infraction, or municipal ordinance violation.2 It is now possible for lawyers to render valuable service to clients by petitioning the court to expunge records of a criminal conviction. The key to success is to screen potential cases carefully.
Many people who are interested in expungement of a criminal case do not qualify under the statute. Others who do qualify might not realize that an expungement order will not meet their needs. It is better for the lawyer’s practice for the client to learn this in a telephone or office consultation than it is to learn it after spending hundreds of dollars in court costs and legal fees to file a petition. This article suggests a checklist of questions to screen an expungement client.
What Do You Want Expunged?
Knowing the exact crime is important. Subsection 610.140.2 has a long list of offenses, many listed by the Missouri Revised Statute section, that are not eligible for expungement. Some examples are “any class A felony offense,” “any felony offense of assault; misdemeanor or felony offense of domestic assault; or felony offense of kidnapping,” and “section 570.025” (robbery in the second degree).3 If the client has been found guilty of an offense on the list (or an equivalent municipal ordinance violation), that offense is not eligible for expungement.4 In light of statutes providing for expungement of arrests and convictions, the circuit court probably has no equitable power to order expungement of ineligible offenses – no matter how compelling the circumstances.5
It is also important to determine the specific charge that resulted in a finding of guilt. Burglary in the first degree(§ 569.160) is not eligible for expungement,6 but burglary in the second degree (§ 569.170) is. Eligibility is based on the charge at disposition, not the initial charge that later may have been amended or substituted. The disposition information may be available from Missouri’s Case.net, from the circuit clerk, or from a public records request to the Missouri State Highway Patrol, which can be accomplished on the MSHP’s website.
Stealing offenses were not eligible for expungement under the initial version of § 610.140,7 but are now eligible as a result of an amended § 610.140, which became effective Aug. 28, 2019.8 There was legislation pending in the 2020 session of the Missouri legislature that would further expand the list of offenses eligible for expungement.9 (The pending bills can be viewed by clicking on the yellow flag with § 610.140 in Vernon’s Annotated Missouri Statutes on Westlaw.)
Given this legislative history, it is prudent to consider advising clients with ineligible offenses to check § 610.140 each year after Aug. 28, 2019, for amendments. Counsel should also check for amendments. In the 2020 session, proposed legislation (S.B. 952) would have shortened the waiting periods and reduced the $250 surcharge to $100 as well as removed some offenses from the list of ineligible offenses.
Subsection 610.140.12 sets lifetime limits on expungements. The client is entitled to expunge only one felony conviction and two misdemeanors or municipal ordinance violations.10 There is no lifetime limit on the number of infractions.11 There is an exception to the limit if the offenses were charged in the same indictment or information or “were committed as part of the same course of criminal conduct.”12 All of those related offenses, violations, and infractions may be included in a petition without regard to lifetime limits.13 The petition will count as an expungement for only the highest level violation or offense contained in the petition for the purpose of determining future eligibility for expungement.14 A client with offenses that exceed the lifetime limits should be made aware of the limits before the client decides to petition.
There are four statutes other than § 610.140 that authorize a court to expunge a conviction of a specific crime. (1) Alcohol-related traffic and boating offenses are eligible for expungement for one-time offenders after a period of 10 years under § 610.130 but not under § 610.140.15 (2) Records of cases for violations of § 311.125 (alcohol-related offenses by a person under 21) can be expunged under § 311.326.16 (3) A person “who at the time of the offense was under the age of eighteen, and has pleaded guilty or has been convicted for the offense of prostitution under section 567.020” may apply to the court for expungement under § 610.131 of all records of arrest, plea, trial, or conviction.17 (4) A criminal conviction for nonpayment of child support may be expunged under § 568.040.6(3)(a).18
The Missouri Department of Revenue used to automatically “delete” many convictions for moving violations on a person’s driving record after three years.19 The DOR rescinded this regulation effective Nov. 30, 2018.20 A client who wants to expunge a moving violation on a driving record must now use § 610.140.
Some clients want to expunge an arrest. The Missouri statute for expungement of an arrest is § 610.122.21 It is difficult to meet the statutory requirements in that section, especially § 610.122.1(1)’s requirement “that the arrest was based on false information.”22 This article focuses on expunging records of criminal cases under § 610.140 in which there has been a conviction.
Despite § 610.122, § 610.140.6 allows expungement of “records related to an arrest for an eligible offense, violation, or infraction.”23 The person is eligible to petition after three years from the date of arrest, “provided that, during such time, the petitioner has not been […] found guilty of any misdemeanor or felony offense.”24 Arrest expungement under§ 610.140.6 should be easier to obtain than under § 610.122, assuming the client was arrested for an eligible offense. On the other hand, an arrest expungement under § 610.122 results in a destroyed record according to § 610.124, but expungement under § 610.140.6 does not. Note, however, that the disqualifying language of “any misdemeanor” means just that: any post-arrest misdemeanor even if the misdemeanor is a minor traffic violation. There is no exception for convictions under chapters 304 and 307 as there is in § 610.140.5(2) for petitions to expunge a conviction.
Mistaken or Stolen Identity
The client may seek a lawyer’s help with expunging records of an offense or infraction in which the client was named as a result of mistaken identity or of another person using the client’s identifying information. The remedy for that mistaken or stolen identity is in § 610.145.25 The client may file a petition or motion asking for expungement of “all official records [of] any entries relating to the person’s apprehension, charge, or trial.”26 The court “shall order the expungement” if, after a hearing on the motion or petition, it determines “that the person’s identity was used without permission and the charges were dismissed or the person was found not guilty.”27
Where Did You Go To Court?
Expungement petitions must be filed in the circuit court of the county in which the case was prosecuted28 or the arrest occurred.29 This rule applies to municipal ordinance violations as well.30 If the client has had cases in different counties, counsel will have to file petitions in each county, subject to the client’s lifetime limit on expungements in §§ 610.140.1 and 610.140.12.
Section 610.140 does not allow expungement of convictions obtained in federal court. There is no federal stature providing for expungement of a federal conviction. There is an expungement procedure for someone under 21 at the time of a drug offense who was placed on pre-judgment probation.31
Did You Receive a Suspended Imposition of Sentence?
If the client received a suspended imposition of sentence, there may be no advantage in obtaining an order of expungement. The record of the SIS is already closed to the public if the offender successfully completed the probationary period, except for people who received a SIS prior to Sept. 28, 1981.32 An expungement order does not close the record any further or make the record disappear. The client must disclose an expunged offense in certain situations, which are discussed in §§ 610.140.9 and 610.140.10. Clients who received an SIS before Sept. 28, 1981, can make a motion under § 610.106 for closure of the case records or petition for expungement under § 610.140.
There are two situations in which a § 610.140 expungement could make a difference for a client with an SIS. (1) If the client has lawful possession of a firearm despite a felony SIS closed record in Missouri, an expungement order may make the client eligible for a concealed carry permit under § 571.101, RSMo 2016, assuming no other disqualifications.33 (2) A § 610.140 expungement in an SIS case might result in expungement of the underlying arrest.
Why Do You Want an Expungement?
It is important to learn the client’s story early in any case. It is especially important for a client seeking an expungement. The court’s order of expungement may not accomplish the client’s purpose. The client also may not realize what expungement means in practice. An order of expungement will not create a clean slate, so to speak, for certain employers described in §§ 610.140.9 and 610.140.10, for a background check to possess a firearm,34 or for an application for Global Entry, a U.S. Customs and Border Protection program.
What an Order of Expungement Does
Although § 610.140 refers to expungement, chapter 610 does not define that term.
The stated purpose of an expungement order is in§ 610.140.8: “the effect of such order shall be to restore such person to the status he or she occupied prior to such arrests, pleas, trials, or convictions as if such events had never taken place.” If the circuit court grants an order of expungement in a criminal case, the records of the case, including records of arrest, plea, trial, or conviction, will be closed “in the manner established by section 610.120.”35 According to § 610.120, closed records “shall be inaccessible to the general public and to all persons other than the defendant except as provided in this section and chapter 43.”
What an Order of Expungement Does Not Do
An order of expungement does not result in destruction of the records to be closed.36 Section 610.120 states:
All records which are closed records shall be removed from the records of the courts, administrative agencies, and law enforcement agencies which are available to the public and shall be kept in separate records which are to be held confidential and, where possible, pages of the public record shall be retyped or rewritten omitting those portions of the record which deal[s] with the defendant’s case. If retyping or rewriting is not feasible because of the permanent nature of the record books, such record […] shall be blacked out and recopied in a confidential book.
Certain agencies will have access to the records. Someone who has received an order of expungement must still acknowledge the expunged offense in certain situations listed in § 610.140.9. For example, the person would have to disclose the expunged offense in an application for “a license, certificate, or permit issued by this state to practice such individual’s profession.”37
The order of expungement is not binding on agencies of the federal government. An expunged conviction may remain a part of a client’s criminal history for purposes related to immigration or international travel or for a background check by the Federal Bureau of Investigation to purchase a firearm.
Only records of an expunged arrest are destroyed.38 Section 610.124 begins, “All records ordered to be expunged pursuant to section 610.123 shall be destroyed, except as provided in this section.” As noted above, this destruction is the advantage of an arrest expungement under § 610.122 over one under § 610.140.6.
Do You Have a CDL?
If the client has a commercial driver’s license, § 610.140.2(10) may disqualify the client from obtaining expungement of a traffic offense:
Any violation of any state law or county or municipal ordinance regulating the operation of motor vehicles when committed by an individual who has been issued a commercial driver’s license or is required to possess a commercial driver’s license issued by this state or any other state.
According to this language, the client should not be disqualified if the commission of the traffic offense occurred before the client obtained the CDL or before the client was required to possess a CDL.
Do You Want to Own a Gun if the Expungement is Successful?
Counsel should ask this question because clients are unlikely to volunteer that reason. To avoid a dissatisfied client, counsel should warn the client that an expunged felony conviction will still cause the client to fail a background check to own a firearm.
The FBI, which operates the National Instant Criminal Background Check System, currently takes the position that an order of expungement in Missouri is not a true expungement in reliance on State of Wyoming ex rel. Crank v. United States, 539 F.3d 1236 (10th Cir. 2008).39 According to that reasoning, a person with an expunged felony conviction will not pass the NICS check even if that expunged conviction is the person’s only conviction. Someone will have to challenge the background check denial by filing a complaint for a declaratory judgment under 18 U.S.C. § 925A. If the plaintiff establishes that the denial was in error, the court may award attorney fees.40
The FBI’s reasoning may, however, be vulnerable to challenge. A federal statute provides that it is up to a state to determine the effect of its expungement order.41 Subsection 610.140.8, quoted above, is evidence of the effect in Missouri. Furthermore, the Supreme Court of Missouri has stated in dictum that someone with an expunged felony conviction could not be charged with violating § 571.070.1, RSMo 2016, which makes it a crime for a felon to possess a firearm.42 But the FBI will also rely on Van der hule, 759 F.3d 1043 (9th Cir. 2014) (restricting felon from concealing weapon he was otherwise permitted to carry was restriction on right to possess firearms triggering “unless” clause in 18 U.S.C. § 921(a)(20)).
When Did You Complete Your Sentence or Probationary Period?
Section 610.140 has waiting periods: seven years for a felony and three years for a misdemeanor, infraction, or ordinance violation.43 The waiting periods run backward from the filing date of the petition.44 The client must not have had another conviction (other than traffic offenses under chapters 304 and 307, RSMo) in the seven- or three-year period before the filing date of the petition.45 And it must have been at least seven years for a felony and three years for a misdemeanor, infraction, or ordinance violation, since the client fully satisfied his sentence (including parole term) or period of probation.46
Be thorough in obtaining any information about a client’s record. While misdemeanor convictions under chapters 304 and 307 do not count, misdemeanor convictions under other chapters do. So, someone with a misdemeanor conviction outside chapters 304 and 307 during the waiting period would be ineligible for expungement until additional time passes.
Have You Satisfied All Obligations Related to the Disposition of Your Case, Including the Payment of Fines or Restitution?
Satisfying all disposition-related obligations is a statutory requirement.47 The court’s docket sheet or a statement of account from the circuit clerk may satisfy this requirement.
Do You Have Pending Charges?
This is another statutory requirement because a pending charge disqualifies the petitioner.48 The client may not know. Do not be surprised if a client has an outstanding warrant. This is another reason for counsel to conduct as thorough a record check as reasonably possible. MoBar Net allows subscribers to access criminal and driver records as well as check for warrants in the St. Louis and Kansas City areas over the internet. Other internet sources of information are municourt.net; Missouri Case.net; and Show-Me Courts, a new system developed by the Office of State Courts Administrator.
What Have You Been Doing Since Satisfying the Disposition of the Offense to be Expunged?
The court will want to know this. The court has discretion whether to grant an expungement even if the petitioner meets the objective requirements for expungement. The petitioner has to show the court that “petitioner’s habits and conduct demonstrate that the petitioner is not a threat to the public safety of the state”49 and “the expungement is consistent with the public welfare and the interests of justice warrant the expungement.”50 Information that the client has obtained additional education, maintained employment, and started a family are helpful and can be included in the petition.
Can You Afford the Cost to Obtain an Expungement?
The filing fee is an important consideration. Section 488.650 applies a surcharge of $250 to the filing fee for an expungement petition in circuit court.51 So the total filing fee may be $350-$400, depending on the county. Section 488.650 allows the court to waive the fee for an indigent petitioner. There may also be additional costs to serve the summons and copy of the petition on all of the respondents listed on the petition. Rule 155, as amended and effective July 1, 2020, will allow service by certified mail with return receipt requested.52
In light of the expensive fee, it is imperative to screen the case before filing. Lawyers hope for satisfied clients as a source of future referrals. Clients whose petitions are denied may blame the lawyer if the client concludes the lawyer should have warned the client about potential problems before petitioning for an expungement. In addition, the lawyer’s reputation with the court will suffer if the law enforcement agencies oppose the petition for well-founded reasons on ineligibility that petitioner’s lawyer could have discovered with a more thorough case screening.
1 Patrick Deaton is a solo practitioner in St. Louis who has represented people seeking expungements in the counties of St. Charles, St. Louis, and the City of St. Louis.
2 Section 610.140, RSMo (2016).
3 Section 610.140.2, RSMo Cum. Supp. 2019. All further references to § 610.140 are to this amended version that became effective on Aug. 28, 2019, unless noted otherwise.
4 Section 610.140.2(9), RSMo.
5 See In re Dyer, 163 S.W.3d 915, 921 (Mo. banc 2005).
6 Section 610.140.2(6), RSMo.
7 Section 610.140.6, RSMo (2016).
8 Section 610.140, RSMo.
9 See S.B. 519 (adding forgery, defrauding secured creditors, and mortgage fraud) and H.B. 1592 (adding committing a fraudulent insurance act, defrauding secured creditors, and money laundering).
10 Section 610.140.12, RSMo.
12 Section 610.140.1, RSMo.
15 Section 610.130, RSMo (2016).
16 Section 311.326, RSMo (2016).
17 Section 610.131.1, RSMo Cum. Supp. 2019.
18 Section 568.040.6(3)(a), RSMo Cum. Supp. 2019.
19 See 12 CSR 10-24.050 (“Deletion of Traffic Convictions and Suspension or Revocation Data from Missouri Driver Records”).
20 12 C.S.R. 10-24.050 (Jan. 30, 2020).
21 Section 610.122, RSMo (2016).
22 The leading case on expunging arrests is In re Dyer, 163 S.W.3d 915 (Mo. banc 2005).
23 Section 610.140.6, RSMo.
25 Section 610.145, RSMo Cum. Supp. 2019.
26 Section 610.145.1(1), RSMo Cum. Supp. 2019.
28 Section 610.140.1, RSMo.
29 Section 610.140.6, RSMo.
30 See Bright v. Mollenkamp, 482 S.W.3d 467 (Mo. App. E.D. 2016).
31 18 U.S.C. § 3607 (2018).
32 Sections 610.105 and 610.106, RSMo (2016).
33 R.F. v. Owen, 596 S.W.3d 221 (Mo. App. W.D. 2020) (concluding that applicant’s guilty plea to a felony offense, which had been expunged, did not automatically disqualify him from receiving a permit to carry a concealed weapon).
34 This has been the author’s experience in his practice.
35 Section 610.140.7, RSMo.
36 Section 610.120.1, RSMo Cum. Supp. 2019.
37 Section 610.140.9(1), RSMo.
38 Section 610.124, RSMo (2016).
39 The FBI cited this decision when denying the appeal of a Missouri resident who failed a NICS check to purchase a firearm due to an expunged felony conviction.
40 18 U.S.C. § 925A (2018).
41 18 U.S.C. § 921(a)(20) (2018).
42 State v. Merritt, 467 S.W.3d 808, 811, 815-16 (Mo. banc 2015).
43 Section 610.140.5(1), RSMo.
45 Section 610.140.5(2), RSMo.
46 L.F.W. v. Missouri State Highway Patrol Criminal Records Repository, 585 S.W.3d 846, 854 (Mo. App. S.D. 2019).
47 Section 610.140.5(3), RSMo.
48 Section 610.140.5(4), RSMo.
49 Section 610.140.5(5), RSMo.
50 Section 610.140.5(6), RSMo.
51 Section 488.650, RSMo (2016).
52 Rule 155 (Dec. 24, 2019) (effective July 1, 2020).