HOW LONG DO I WAIT TO EXPUNGE A DIVERSION?

STATE V. YRIGOLLA, 175 P.3D 276 (KAN. CT. APP. 2008).

This case explored the issue of how long a defendant must wait to expunge a diversion. In exploring this issue, the court concluded that there was generally a 3-year waiting period after completing diversion (alternative to jail time where wrongdoer has to obey law for a set amount of time) before a person could ask for expungement. Id. at 280. However, if the person was convicted of any drug felony ranked in severity levels 1 through 3, that person must wait 5 years before asking for expungement. Id.

In this case, the defendant appealed the trial court’s order denying his motion to expunge his diversion agreement. Id. at 277. The defendant claimed the trial court erred in ruling there was a 5-year waiting period for filing a petition for expungement. Id. In making their decision, the trial court relied on a Kansas statute (“Statute 1”). Id. However, the defendant felt like the trial court should have relied on a different Kansas statute (“Statute 2”) which stated that there was no waiting period. Id. The trial court stated that they used Statute 1 because the defendant was arrested and charged with a severity level 3 drug crime and subsequently placed on diversion. Id. Additionally, the trial court noted that they did not use Statute 2 because it only applied to expungement of arrest records where (1) a person was arrested due to mistaken identity, (2) the timespan where a person could bring a lawsuit had run, or (3) the State simply declined to prosecute the person for the crime for which arrest was made. Id. at 277-78. Since the defendant appealed the trial court’s decision, the Kansas Court of Appeals heard the case. Id. at 278.

In examining the defendant’s argument that the trial court should have used Statute 2, the court first looked to the exact language of both statutes. Id. Statute 1 stated, “No person may petition for expungement until 5 or more years have elapsed since the person satisfied . . . the terms of a diversion agreement . . . if such person was convicted of . . . any felony ranked in severity levels 1 through 3 of the drug grid.” Id. Additionally, Statute 2 stated, “At the hearing on a petition for expungement, the court shall order the arrest record and subsequent court proceedings, if any, expunged upon finding: (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 (defendant) was found not guilty in court proceedings; or (4) the expungement would be in the best interests of justice . . . .” Id.

In exploring Statute 2, the court noted that the legislature did not intend Statute 2 to be applied to individuals who were rightly arrested and not convicted of a crime solely because they entered into a diversion agreement with the State. Id. at 279. Furthermore, the court stated Statute 2 was intended to provide relief to relatively innocent arrestees—people who were arrested but, due to a variety of reasons, were not convicted of a crime. Id.

In sum, the court concluded that Statute 1 matched up perfectly with the defendant’s situation. Id. at 278. Therefore, the court held the trial court correctly denied the defendant’s petition for expungement because 5 years had not passed since the defendant satisfied the terms of his diversion agreement. Id. at 280.