Request By:
Mr. R. Wayne McGee
Attorney at Law
123 South Main Street
Cynthiana, Kentucky 41031
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Suzanne Guss, Assistant Attorney General
You have requested an opinion of the Attorney General as to the proper procedure to follow to expunge a criminal record under KRS 218A.990(9)(h). It must be noted that only convictions for possession of marijuana may be set aside and voided under this statute:
[I]n the case of any person who has been convicted of possession of marijuana, the court may set aside and void the conviction upon satisfactory completion of treatment, probation or other sentence, and issue to the person a certificate to that effect. A conviction voided under this subsection shall not be deemed a conviction for purpose of disqualifications or disabilities imposed by law upon conviction of a crime. KRS 218A.990(9)(h).
The statute does not set forth a specific procedure to be followed. We would suggest a pleading along the order of a "Motion and Order Voiding Conviction" filed by counsel on behalf of the party seeking such action.
You have also asked whether the clerk of the circuit court should expunge the index of the record. The answer is "no." The purpose of permitting a conviction to be voided is to eliminate the "disqualifications or disabilities imposed by law upon conviction of a crime." KRS 218A.990(9)(h). The record of the conviction itself and the order voiding it remain - only the effect of the conviction is eliminated. Not even records wherein the subject has been found innocent of the offense or has had the charges dismissed or withdrawn may be completely expunged or eliminated. Such records cannot be expunged and are subject only to segregation from records of convicted persons. KRS 17.1242. Neither KRS 218A.990(9)(h) nor any other Kentucky statute provides for the complete physical elimination or expungement of a record of arrest or conviction for an adult. Only KRS 208.275 permits the sealing of records of juvenile offenders to the extent that the proceedings are deemed never to have occurred and all index of references are deleted.
We trust this information has satisfactorily answered your inquiry. If you have any additional questions, please contact us.