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Asker
Posted almost 2 years ago.

(4) (c) states: The person had not been convicted of any other misdemeanor or violation offense in the five (5) years prior to the conviction sought to be expunged.

I dont understand this. So because these misdeameanors occured less than five years apart I'm unable to get them expunged?

Frank Mascagni III
Frank Mascagni III, Criminal Defense Attorney - Louisville, KY
Posted almost 2 years ago.

There are 2 expungement statutes in KY. There is no section "(4)(c)" in the statute I reproduced for you: KRS 431.076. The other statute is KRS 431.078, which does have a section (4)(c):
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Kentucky Revised Statutes

Title 40. CRIMES AND PUNISHMENTS

Chapter 431. GENERAL PROVISIONS CONCERNING CRIMES AND PUNISHMENTS

Current through 2012 First Extraordinary Session

§ 431.078. Expungement of misdemeanor and violation records of convictions and dismissed or amended charges

(1) Any person who has been convicted of a misdemeanor or a violation, or a series of misdemeanors or violations arising from a single incident, may petition the court in which he was convicted for expungement of his misdemeanor or violation record, including a record of any charges for misdemeanors or violations that were dismissed or amended in the criminal action. The person shall be informed of the right at the time of adjudication.

(2) Except as provided in KRS 218A.275(8) and 218A.276(8), the petition shall be filed no sooner than five (5) years after the completion of the person's sentence or five (5) years after the successful completion of the person's probation, whichever occurs later.

(3) Upon the filing of a petition, the court shall set a date for a hearing and shall notify the county attorney; the victim of the crime, if there was an identified victim; and any other person whom the person filing the petition has reason to believe may have relevant information related to the expungement of the record. Inability to locate the victim shall not delay the proceedings in the case or preclude the holding of a hearing or the issuance of an order of expungement.

(4) The court shall order sealed all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records, if at the hearing the court finds that:

(a) The offense was not a sex offense or an offense committed against a child;

(b) The person had no previous felony conviction;

(c) The person had not been convicted of any other misdemeanor or violation offense in the five (5) years prior to the conviction sought to be expunged;

(d) The person had not since the time of the conviction sought to be expunged been convicted of a felony, a misdemeanor, or a violation;

(e) No proceeding concerning a felony, misdemeanor, or violation is pending or being instituted against him; and

(f) The offense was an offense against the Commonwealth of Kentucky.

(5) Upon the entry of an order to seal the records, and payment to the circuit clerk of one hundred dollars ($100), the proceedings in the case shall be deemed never to have occurred; all index references shall be deleted; the persons and the court may properly reply that no record exists with respect to the persons upon any inquiry in the matter; and the person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application. The first fifty dollars ($50) of each fee collected pursuant to this subsection shall be deposited into the general fund, and the remainder shall be deposited into a trust and agency account for deputy clerks.

(6) Copies of the order shall be sent to each agency or official named therein.

(7) Inspection of the records included in the order may thereafter be permitted by the court only upon petition by the person who is the subject of the records and only to those persons named in the petition.

(8) This section shall be deemed to be retroactive, and any person who has been convicted of a misdemeanor prior to July 14, 1992, may petition the court in which he was convicted, or if he was convicted prior to the inception of the District Court to the District Court in the county where he now resides, for expungement of the record of one (1) misdemeanor offense or violation or a series of misdemeanor offenses or violations arising from a single incident, provided

Frank Mascagni III
Frank Mascagni III, Criminal Defense Attorney - Louisville, KY
Posted almost 2 years ago.

There are several bills filed before the Kentucky General Assembly right now seeking to make expungements easier to acquire. Haven't been passed yet in this 2013 session. Whether the 5 years prohibition will cause an objection by the Assistant County Attorney reviewing the motion in each different county where you file is unknown to me. Seek legal advice in each county where you want to file.

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Asker
Posted almost 2 years ago.

why are there two different statutes?
So does (4) (c) on the other statute not apply to me?

Frank Mascagni III
Frank Mascagni III, Criminal Defense Attorney - Louisville, KY
Posted almost 2 years ago.

For 2 different sets of facts:

§ 431.076. Expungement of criminal records for those found not guilty of crimes or for whom charges have been dismissed with prejudice

431.078. Expungement of misdemeanor and violation records of convictions and dismissed or amended charges

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Asker
Posted almost 2 years ago.

Oh, well mine were definitely found guilty. So basically, i'm screwed if the county attorney objects?

Frank Mascagni III
Frank Mascagni III, Criminal Defense Attorney - Louisville, KY
Posted almost 2 years ago.

Consult with a competent criminal defense attorney in each county you were charged in.

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Asker
Posted almost 2 years ago.

just one more question and ill let you go. I appreciate the help by the way. I just really need some kind of hope so i can sleep tonight. I'll set up a scenario:
I'm in the court room with my attorney present and were talking to the judge about expunging these charges . Then, the assistant county attorney objects because of 431.078 (4)(c). Is it possible for my attorney to convince the judge to expunge it anyway or MUST the judge abide by the statute once the objection is made?

Frank Mascagni III
Frank Mascagni III, Criminal Defense Attorney - Louisville, KY
Posted almost 2 years ago.

Some Assistant County attorneys outside Jefferson County don't care. If there is a good reason not to object, they won't. Some Assistant County Attorneys will object, and until recently the judge would grant the motion anyway. It depends on what county you are in, the prosecutor, your defense attorney and the judge.