Questions Raised About Missouri DWI Expungement Process

Guilfoil Law Group June 3, 2006

A former Missouri resident has requested a 26-year-old DWI charge be cleared from her record, in the hopes of likewise expunging an existing FBI record on the incident.

The woman arranged for the filing of the application last week in the Circuit Court of St. Louis County.

Her request uses a revised Missouri law that allows individuals who pled guilty to their first alcohol-related driving offense - and who have maintained a clean record since - to apply for expungement 10 years after the offense.

The law, Section 577.054 of the Missouri Revised Statutes, was made effective Aug. 28, 2005, and while expungement of a DWI has been an option for first-time offenders for several years, in some cases record of the offense remains on a driver's license and can hamper employment efforts, attorneys say.

The woman is seeking to clear her record because at the time of the incident, June 1980, data about the events was transmitted to the FBI, where a record was created, said John Shewmaker, a Columbia, Mo.-area attorney who filed the request on behalf of the woman.

That FBI record has prevented the woman from obtaining a state license to practice chiropractic medicine where she currently lives, Shewmaker said.

Shewmaker said he did not contact the FBI to confirm the existence of a record there, but responses from state licensure boards have indicated the continued existence of the woman's record in the FBI's Criminal Justice Information System.

The woman's application for expungement includes a copy of her FBI identification record, which lists her 1980 arrest.

Peter Krusing, media relations coordinator and legal adviser for the St. Louis field division of the FBI, said requests for expungement are handled by the CJIS, or fingerprint division, located in Clarksbug, W.Va.

If there is such a hearing and the court rules that the record should be expunged, they have to go through the originating police agency, who then would request those fingerprints to be pulled from the FBI facility, Krusing said. When that is done, the record would be expunged.

The originating police agency is the law enforcement agency that handled the original offense, Krusing explained. In the woman's case, the agency would be the Des Peres Police Department, according to the filing.

Krusing said it was unlikely the FBI fingerprint division would pull the woman's file, and that the case depended on whether or not a hearing would be granted, and which judge would consider her application.Shewmaker said the application process for expungement is difficult in that the state statute does not provide for a defendant in the petition for expungement. When preparing the filing for the woman, he named her as an applicant and petitioner.

He said the woman was never convicted of a DWI, but only charged with a misdemeanor, for which she served a six-month probation sentence.

The idea is, 'Can we get rid of this little stain?' Shewmaker said. Can we get that gone so she can practice chiropractic medicine?

The real question, Shewmaker said, is not whether a county judge will hear the woman's petition, but whether the FBI would honor a judge's order to clear her FBI record.

Steven Fischer, media relations coordinator for CJIS, did not respond to interview requests.

An individual may challenge or correct an FBI record by contacting the originating police agency, according to the CJIS Web site.

These agencies will be able to furnish the guidelines for correction of the Record, the site said. The FBI is not authorized to modify the Record without written notification from the appropriate criminal justice agency.

Missouri Expungement Laws

Lillian Spencer, regional director of Mothers Against Drunk Driving in Kansas and Missouri, said she is familiar with the Missouri statute allowing first-time offenders to seek to expunge their records.

As a general rule, MADD opposes any program that allows an individual to be cleared of a DWI, Spencer said. We would prefer that DWI convictions remain on the records permanently.

The organization holds that stance, she said, because if a person's criminal record is successfully expunged and she is later charged with a drunk-driving conviction, she would be treated as a first-time offender.We want to avoid that situation, she said.

MADD in Missouri was recently restructured to include Kansas, Spencer said, and as the organization re-groups, its public policy arm will be mobilizing support and advocating for DWI laws in the state of Missouri.The organization is keeping an eye on the recent Missouri statute related to expungement, she said.

This may be something we will be looking at in the future or to talk with legislators about, Spencer said.

Matthew Guilfoil, a defense attorney in Kansas City, Mo., said he is wary of such changes in Missouri law. Expungement petitions are not a large part of his practice, he said, but he fears statutes like the first-time offense law will become non-existent as the Missouri Legislature continues to crack down on opportunities for DWI offenders to fight their suspensions or clear their records.