A much-anticipated bill that will overhaul South Carolina’s expungement laws has passed the House and Senate, and is now waiting for the governor’s signature.

The new SC expungement law makes some major changes, including:

• Expanding the list of drug offenses that can be expunged; and
• Correcting an ex-post facto violation in the previous expungement laws that prevented some youthful offender (YOA) convictions from being expunged.

New SC Expungement Law Allows Expungement of Minor Drug Convictions

Under SC’s old expungement law, a conviction for simple possession of marijuana less than one ounce could be expunged, if it was a first offense and there were no other convictions – this fell under the provision that any summary court offense punishable by 30 days or less could be expunged after three years if there were no other convictions.

There was no other way to expunge a drug conviction unless the offender completed a pretrial diversion program like pretrial intervention (PTI), a conditional discharge, or drug court.

Under the new law, minor first-offense drug offenses will be eligible for expungement:

• Any first-offense conviction for possession of a controlled substance can be expunged after three years;
• Any first-offense conviction for unlawful possession of a prescription drug can be expunged after three years; and
• A first offense conviction for possession with intent to distribute any controlled substance can be expunged after 20 years.

YOA Expungements – Fixing the Ex Post Facto Violation

Prior to 2010, a Youthful Offender Act (YOA) conviction could be expunged 15 years after the completion of the sentence if there were no other convictions during the waiting period.

SLED and solicitor’s offices back then routinely denied expungement applications for persons who were under the age of 24 and pled to non-violent offenses but who did not plead under the provisions of the YOA.

In 2009, the SC Supreme Court, in Gay v. Arial, held that any person who would have qualified under the YOA at the time of their conviction was eligible for expungement under the YOA.

In 2010, in response to Gay v. Arial, the legislature passed a new expungement law that said no person was eligible for a YOA expungement unless they specifically pled guilty under the provisions of the YOA – stripping a substantial right from potentially thousands of SC citizens who may have entered guilty pleas with the understanding that their conviction would be expunged after 15 years…

The new expungement bill corrects this by adding language that says:

1. Any person who does not plead under the provisions of the YOA is not eligible for a YOA expungement; but
2. Any person convicted prior to June 2, 2010, who would have qualified as a youthful offender, is eligible to have their record expunged pursuant to the provisions of the new law.

This means that any person who qualified as a youthful offender, convicted before 2010, can have their convictions expunged now. Because the newer YOA expungement provisions only require a waiting period of five years from completion of the sentence (it used to be 15 years), every youthful offender convicted prior to 2010 is eligible for expungement as soon as the new expungement bill takes effect (six months after the governor signs) .

SC Expungement Lawyers in Myrtle Beach, Conway, Charleston, and Columbia

The criminal defense and expungement attorneys at Coastal Law want to help you clean up your record – if you have convictions that may be eligible for expungement or pardon, call now at (843) 488-5000 or fill out our online form to find out how we can help.