CAN I GET AN EXPUNGEMENT IF I HAVE A CASE PENDING?

Can I Get An Expungement If I Have A Case Pending?

Pope By and For Juby v. Ransdell, 833 P.2d 965 (Kan. 1992).

This case explored the issue of whether a person could get an expungement if he or she had a case pending. The simple answer is no. In exploring this issue, the court concluded that the court shall order a person’s conviction expunged if, among other things, it was found that no legal proceeding involving any such crime was pending or being instituted against the person. Id. at 975.

The case in question involved a medical malpractice action brought on behalf of a minor (plaintiff) whose injuries allegedly resulted from negligence in the care the doctor (defendant) provided the plaintiff’s mother while she was in labor with him. Id. at 969. The mother was experiencing contractions and was admitted to the hospital on November 8, 1976. Id. The following day, the defendant performed an exam on the mother and induced labor. Id. The defendant then left the hospital and returned to his office. Id. While the defendant was gone, the nurses noticed decelerations of the fetal heartbeat. Id. After notifying the defendant, he prepared the mother for a C-section and delivered the plaintiff a few hours later. Id. at 970. The plaintiff alleged the defendant was negligent in caring for his mother. Id. Also, the plaintiff asserted that the defendant’s negligence caused the plaintiff to suffer from a seizure disorder, be uncoordinated, and make little advancement in his psycho-motor development. Id. After trial, the jury returned a verdict finding no fault on the part of the defendant. Id. at 969. As a result, the plaintiff appealed claiming the trial court erred in improperly allowing the defendant to call into question the credibility of the mother (who was a witness) by using her expunged convictions of drug related crimes. Id.

In order to address the plaintiff’s argument, the court first examined the topic of expungement. Id. at 975. According to the court, expungement of criminal records was governed by a Kansas statute, which provided that “after the order of expungement was entered, the petitioner (defendant) should be treated as not having been convicted of the crime.” Id. Further, the court noted that it would order a defendant’s conviction expunged if it found (1) the defendant had not been convicted of a felony in the past two years and no legal proceeding involving any such crime was presently pending or being instituted against the defendant; (2) the circumstances and behavior of the defendant warranted the expungement; and (3) the expungement was consistent with the public welfare. Id.

The ultimate question this court had to answer was whether it was error for the trial court to allow the defendant to utilize the mother’s expunged convictions of drug related crimes in order to challenge her credibility as a witness. Id. at 976. The court determined the trial court did error in admitting the prior convictions. Id. at 979. However, since the jury found no fault on the part of the mother, the use of her prior drug convictions was harmless error because it had no effect in the jury’s determination. Id.