As I’ve said many times in this blog, a conviction for DUI/OVI can never be expunged. While the socioeconomic impact will lessen over the years, the actual conviction will always show on your traffic leads. But, what happens if your case is dismissed? Since you were not convicted, is the arrest record subject to expungement. As in all matters involving American jurisprudence, the answer isn’t merely black or white.
The determination of expungement is determined by the interpretations of O.R.C. §2953.52. The expungement statute relating to records of cases that are dismissed sets forth the necessary elements to qualify for expungement.. The court must determine:
1. If the application was filed on a timely basis,
2. Whether the applicant has any criminal charged pending against them, and
3. If the applicant’s interests outweigh the legitimate needs, if any, of the government to maintain those records.
The decision of whether or not to seal criminal records pursuant to O. R.C. 2953.52 rests in the sound discretion of a court, State v. Haney, 70 Ohio App.3d 135, 138, 590 N.E.2d 445. While the court is required to articulate the reasons for NOT granting the application, the court need not be specific in its journal entry, State v. Bates, 2012 Ohio 1397.
Therefore, under O.R.C. 2953.52, the court may deny any motion for expungement and its failure will not be overturned unless the applicant can show an abuse of discretion, a very high standard to meet. An abuse of discretion is more than an error of law or a mistake of judgment, the term connotes that the court’s attitude is arbitrary, unreasonable or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 5 Ohio B. 481, 450 N.E.2d 1140. Thus, very few cases are overturned under these circumstances.
Hence, if the court feels the government’s need to retain the records of the DUI charge outweighs the applicant’s interests, the application for expungement will be denied. And this is in the court’s exclusive discretion.
Secondly, what if the charge for which you are seeking expungement of a dismissed charge arises from an act that leads to a conviction for another unsealable charge? A recent Ohio Supreme Court case addressed that issue.
In the case of State v. Pariag, 2013-Ohio-4010, the defendant was arrested for minor drug charges and, at the same time a traffic violation. The drug charges were dismissed when she pled to the traffic violation which was a non-expungable conviction. The defendant attempted to have the dismissed drug charges expunged, but the court denied her application.
When the case reached the supreme court, it opined: “A trial court is precluded from sealing the record of a dismissed charge pursuant to R.C. 2953.61 if the dismissed charge arises “as the result of or in connection with the same act that supports a conviction which is exempt from sealing under R.C. 2953.36, regardless of whether the charges are filed under separate case numbers.” In remanding the case to the trial court, the supreme court concluded, “The trial court, on remand, must determine if those charges arise “as the result of or in connection with the same act…”
So, for example, lets say you go to a bar with your wife and while driving home, your spouse begins to yell at you because your driving is erratic, and you get in a heated argument with your spouse. The argument escalates to the point that you threaten your spouse with bodily harm. At the same time you are driving a police offices notices that you are not staying in your lane. The police officer stops you, smells alcohol on your breath and, at the same time, your spouse exits the vehicle and tells the officer of your threat. Subsequently, you are charged with DUI and domestic violence. Eventually the DUI charges are dropped, but you plead to the domestic violence charges.
Since the domestic violence charges are not subject to expungement, any application for expungement of the dismissed DUI charge will be denied if the court determines that:
1. The interests of the state outweigh your interests in having the DUI charges expunged, or
2. The court determines the DUI charge and domestic violence charge arose out of the same act.