New Kentucky Law: Some Felonies Can now be Expunged

8229308_origYou heard right — the law in Kentucky has undergone a major change and starting on July 15, 2016, some 61 felonies will be eligible for expungement if certain criteria are met.

Many Kentuckians have been hoping for this change for years, and it has taken a long time for our legislature to pass this bill through both houses, but it finally happened — and many people can get their lives back!

This means they will now be able to find employment, regain their right to vote, and finally feel like citizens again putting their ugly past behind them.

In addition, the misdemeanor expungement law is getting a face-lift, which we will briefly discuss.

So read on to learn more.

THE PROCESS

The felony expungement process is much more complex than a misdemeanor expungement process in several different ways.

First, it’s more expensive. Misdemeanor expungements cost $100 to the Administrative Office of the Courts, whereas felony expungements are $500 ($50 of which is not refundable, even if you fail in your petition and your case does not get expunged.)

Second, it’s lengthier. Both the County and the Commonwealth attorneys have up to 120 days (about 4 months) to respond to the petition. Although, if they fail to respond within that time frame, the Court may grant your expungement motion without their response.

Third, the Court may require the victims of your crime to be present in court, if they so choose, to speak their mind about (and possibly influence) the Court’s decision. If you thought the process alone was difficult, imagine having the victims protest your expungement directly to the judge. We’ll see how this affects various expungements when petition start getting filed.

Fourth, it requires an expungement hearing in front a judge. Yeah, the process is not automatic, and you may need to speak in Court directly to the judge (might want to leave that to the professionals..)

Finally, only about 61 felonies will be eligible for expungement under the new law.

THE ELIGIBLE OFFENSES

On July 15th, 2016 the following Felony offenses will become eligible for expungement:

  1. KRS 17.175: Dissemination or misuse of the state DNA database.
  2. KRS 186.990: Theft of vehicle registration stickers; various other tax provisions related to dealers’ tags
  3. KRS 194A.505: Commonly referred to as “False Statement to Receive Benefits”. Welfare/Food stamps fraud.
  4. KRS 194B.505: Was repealed in 2005. Believe it may be also related to benefits fraud, but will have to check older law books.
  5. KRS 217.181: Theft of a Legend Drug. Stealing a prescribed substance that isn’t subject to the controlled substance act.
  6. KRS 217.207: Theft of or trafficking in prescription blanks, second offense.
  7. KRS 217.208: Forgery of a prescription.
  8. KRS 218A.140: Prohibited acts relating to controlled substances — Penalties.
  9. KRS 218A.141: Possession of a Controlled Substance, First Degree. Cocaine, Meth, LSD.
  10. KRS 218A.1416: Possession of a Controlled Substance, Second Degree: This is currently a misdemeanor, but for many years, a second offense could be enhanced to a felony. Ultimately, anyone should consider voiding a conviction for PCS instead (we will talk about this procedure in a future post).
  11. KRS 218A.1417: Possession of a Controlled Substance, Third Degree: same situation as above.
  12. KRS 218A.1418: An older version of the “Theft of a Controlled Substance” statute.
  13. KRS 218A.1423: Marijuana cultivation
  14. KRS 218A.1439: Trafficking in or transferring a dietary supplement, second offense: mainly used to prosecute people selling ephedrine related substances.
  15. KRS 218A.282: Forgery of a prescription: self explanatory.
  16. KRS 218A.284: Criminal possession of a forged prescription.
  17. KRS 218A.286: Theft, criminal possession, trafficking, or unlawful possession of a prescription or blank.
  18. KRS 218A.320: Criminal possession of a medical record; penalties. It is what it says. Using a medical record not your own to try to get controlled substances.
  19. KRS 218A.322: Theft of a medical record; penalties. Same as above.
  20. KRS 218A.324: Criminal falsification of a medical record; penalties. Same.
  21. KRS 244.165: Unlawful sale and shipment by out-of-state seller directly to a Kentucky consumer; permissible shipments of wine into Kentucky by out-of-state small farm wineries; penalty. A law that almost certainly no one was ever prosecuted under. Was declared unconstitutional in 2008.
  22. KRS 286.11-057: Making a False Statement in a number of Financial disclosures.
  23. KRS 304.47-025: Felony offense involving dishonesty or breach of trust; fraudulent insurance act; penalties. Various insurance fraud crimes by insurers.
  24. KRS 324.990: Engaging in real estate brokerage without license; penalties. Expungement for all of those people who have twice been convicted of selling real estate without a license.
  25. KRS 365.241: Counterfeiting intellectual property; penalties; disposition of property. Somewhat more common. Selling fake sunglasses, purses, etc. worth over $1000.
  26. KRS 434.155: Filing illegal lien. More financial crimes.
  27. KRS 434.675: Use of scanning device or reencoder to obtain payment card information prohibited. Skimming credit cards to duplicate them.
  28. KRS 434.850: Unlawful access to a computer in the second degree. Computer hacking that causes over $300 in damages. I’ve seen it used when employees hacked cash registers.
  29. KRS 434.872: Disclosure of information from financial information repository; penalties. This covers social engineering scams at banks where scammers try to get the banks to disclose information on account holders.
  30. KRS 511.040: Burglary in the third degree.
  31. KRS 512.020: Criminal mischief in the first degree
  32. KRS 514.030: Theft by Unlawful Taking (Class D Felony). This was, until recently, the charge for taking over $300 in goods. The current limit is now $500. The bill would also presumably cover Theft of a Firearm, which is in the same chapter.
  33. KRS 514.040: Theft by Deception. Similar to above, the cash amount limit has changed over the years, but the offense basically requires deceiving someone to steal something or take money.
  34. KRS 514.050: Theft of property lost, mislaid, or delivered by mistake. Similar to above.
  35. KRS 514.060: Theft of services. Same as above but for services.
  36. KRS 514.065: Possession, use, or transfer of device for theft of telecommunications services. Making a device to steal cellular or other telecommunication services. Only a felony on a second offense. Unlikely anyone has ever been convicted of this.
  37. KRS 514.070: Theft by failure to make required disposition of property.
  38. KRS 514.080: Theft by extortion.
  39. KRS 514.090: Theft of labor already rendered.
  40. KRS 514.100: Unauthorized use of automobile or other propelled vehicle. (Second offense is a felony).
  41. KRS 514.110: Receiving stolen property.
  42. KRS 514.120: Obscuring identity of machine or other property.
  43. KRS 514.140: Theft of mail matter.
  44. KRS 514.150: Possession of stolen mail matter.
  45. KRS 514.160: Theft of identity. Not just what you think it is. Frequently comes up when people have bills in other peoples names, etc.
  46. KRS 516.030: Forgery in the second degree. Forged checks primarily.
  47. KRS 516.060: Criminal possession of forged instrument in the second degree. Possession of forged checks.
  48. KRS 516.090: Possession of forgery device. Possessing a check forging or other forging machine.
  49. KRS 516.108: Criminal simulation in the first degree.
  50. KRS 517.120: Operating a sham or front company. Self explanatory.
  51. KRS 518.040: Sports bribery.
  52. KRS 522.040: Misuse of confidential information. A crime public officials can be charged with.
  53. KRS 524.100: Tampering with physical evidence.
  54. KRS 525.113: Institutional vandalism.
  55. KRS 526.020: Eavesdropping.
  56. KRS 526.030: Installing eavesdropping device.
  57. KRS 528.020: Promoting gambling in the first degree. Bookmaking.
  58. KRS 528.040: Conspiracy to promote gambling.
  59. KRS 528.050: Possession of gambling records in the first degree.
  60. KRS 530.010: Bigamy. Marrying two people at once.
  61. KRS 530.050: Flagrant Nonsupport. Behind on child support more than $1000.

MISDEMEANOR EXPUNGEMENTS

The one big change coming to misdemeanor expungements is that there will no longer be a five-year look-back window for prior offenses — this means that the statute is now going to be only forward looking, i.e. multiple prior misdemeanors will be able to be expunged as a group if you have been staying out of trouble for the last five years.

FINAL WORDS

Expungements can be very complicated and need to be handled very carefully — do not try to do them yourself, because you may not get a second chance if you fail the first time.CONTACT ME to help you with this difficult process. I can also be reached at 502-931-6788. That’s my personal cellphone number.

I’m always here for you, friend;

The DUI Guy

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Victoria Kampschaefer
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Victoria Kampschaefer

Can a federal convicted felon that has conspiracy of cultivation marijuana have that expunged

Larry Forman
Admin

More than likely not.

Unless state law was applied.

Vicki
Guest
Vicki

My daughter had a Trafficking in Marijuana (5lbs or more) 1st offense conviction in 2001. She is now 36 years old. It is considered a Class C because it was 6 lbs. I know she doesn’t fall under the new law, but is there any hope for expungement if we retain a lawyer? She was told that her only hope was if she gets in front of the judge that convicted her. I’m not sure that person is even a judge at this point. Do you have any suggestions?

Larry Forman
Guest

VIcki,

The Felony Expungement Statute is an inclusive statute, so all offenses listed are the ONLY ones that are eligible for expungement.

First, only Class D Felonies are eligible for expungement, so hers is automatically out.

Second, even if it was amended to a Class D under KRS 218A.1421, Trafficking in MJ is not a violation that is eligible for expungement.

Steffan
Guest
Steffan

So is trafficking 1000 yards of a school expungeable?

Larry Forman
Admin

Steffan,

Just like the answer to Vicki’s questions, above — if it’s not on the list, it is not expungeable.

I’m sorry.

The law may change later.

Timara T.
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Timara T.

Did they change the time frame requirements? Because I believe it had to be 7 years from the date of conviction and 5 Years From the date of completed sentence correct?

Larry Forman
Admin

Incorrect.

It has always been 5 years from the date of conviction, or the completion of the sentence (10 years for DUIs now, with the law change), whichever comes later.

Sometimes there is something that’s known as conditionally discharged time (shelf time) and it is usually 2 years in District Court — attorneys can make the argument that the shelf time is not to be considered as “probation” for purposes of the statute because it is too informal, etc.

Michael Butler
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Michael Butler

Can wanton endangerment class D be expop unged?

Larry Forman
Admin

Not at this time.

Brandon
Guest
Brandon

No guestion just a sad fact the commonwealth of Kentucky’s state representatives need to get there act together and think about these expungement laws and who why how and when or if a individual should meet accepted standards, my example I have a non violent class d I accepted full responsibility my crime has no victims I’m no thief I’ve only hurt myself and obviously disappointed my mother and father, I never missed a court day signed a 4 year prison term after going through Hardin counties corrupt rocket docket system, I paid my bail before final sentencing to make… Read more »

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