Expungement of Kansas Convictions
K.S.A. 21-3110 provides that a defendant in a criminal action may have their conviction or arrest wiped off their record so that only the defendant or government agencies have access to it.
In order to effectuate the expungement of an arrest record, K.S.A. 22-2410 requires a lawsuit must be filed in the same court as the conviction and must allege all the requirements of the expungement statute, which are as follows:
(1) The petitioner's full name;
(2) the full name of the petitioner at the time of arrest, if different than the petitioner's current name;
(3) the petitioner's sex, race and date of birth;
(4) the crime for which the petitioner was arrested;
(5) the date of the petitioner's arrest; and
(6) the identity of the arresting law enforcement agency.
An expungement lawsuit must be accompanied by a $100 docket fee unless the petitioner was involved in identity theft. The arresting agency and the prosecuting attorney will be notified of the petition and be given an opportunity to be heard at a hearing on the petition. Any person who may have relevant information about the petitioner may testify at the hearing. The court may inquire into the background of the petitioner.
If the presiding judge orders expungement of an arrest record and / or subsequent court proceedings, if any, the Order shall restate information in the petition and shall state the required findings that support the grounds for expungement which can be:
(1) The arrest occurred because of mistaken identity;
(2) a court has found that there was no probable cause for the arrest;
(3) the petitioner was found not guilty in court proceedings; or
(4) the expungement would be in the best interests of justice and (A) charges have been dismissed; or (B) no charges have been or are likely to be filed.
The court clerk will send a certified copy of the judge's order to the Kansas Bureau of Investigation which shall notify the Federal Bureau of Investigation, the Secretary of Corrections and any other criminal justice agency which may have a record of the arrest. If an Expungement Order is entered, the petitioner/defendant shall be treated as not having been arrested.
In order to qualify for expungement, you must not have been involved in any criminal activity within the preceeding two years and you must set forth all the details of the underlying conviction. At least three years must have passed since the successful completion of any underlying sentence including probation and parole. These are the determing factors for convictions ranked level four and below on the drug grid and level six and below on the non-drug grid. Crimes ranked more serious than this require a five year waiting period.
The following convictions require five (5) years time passage before expungement:
(1) Vehicular homicide, as defined by K.S.A. 21-3405, and amendments thereto;
(2) driving while the privilege to operate a motor vehicle on the public highways of this state has been canceled, suspended or revoked, as prohibited by K.S.A. 8-262, and amendments thereto;
(3) perjury resulting from a violation of K.S.A. 8-261a, and amendments thereto;
(4) a violation of the provisions of the fifth clause of K.S.A. 8-142, and amendments thereto, relating to fraudulent applications;
(5) any crime punishable as a felony wherein a motor vehicle was used in the perpetration of such crime;
(6) failing to stop at the scene of an accident and perform the duties required by K.S.A. 8-1602, 8-1603 or 8-1604, and amendments thereto;
(7) a violation of the provisions of K.S.A. 40-3104, and amendments thereto, relating to motor vehicle liability insurance coverage; or
(8) a violation of K.S.A. 21-3405b, and amendments thereto.
(c) There shall be no expungement of convictions or diversions for a violation of a city ordinance which would also constitute a violation of K.S.A. 8-1567 or 8-2,144, and amendments thereto.
K.S.A. 21-4619 provides that neither arrests nor convictions for the following crimes can be expunged: Rape, indecent liberties with a child, aggravated indecent liberties with a child, criminal sodomy involving children, aggravated criminal sodomy, indecent solicitation of a child, aggravated indecent solicitation of a child, sexual exploitation of a child, aggravated incest, endangering a child, abuse of a child, any form of murder or manslaughter, sexual battery when the victim is less than 18 years of age, aggravated sexual battery or any crime comparable to any of these offenses.