Expunged Crimes Can Still Be Used To Enhance Punishment

Legally speaking, once a case is expunged it never existed. You can tell employers you have never been convicted, and deny it happened when applying for apartments. However, one caveat of expungements is that law enforcement can still access the case and use it against you in future court cases.

Before you read further, it is important to note that each county in Oklahoma handles expunged cases differently. It varies based on the acting district attorney (DA) at the time; and since the DA is an elected position, the policies tend to change quite regularly. Even within an office, some prosecutors handle expunged cases differently.

Some treat expungement like it truly never happened, while others still use it to enhance punishment. This makes it difficult to anticipate what you will be charged with. While this is frustrating, the bottom line is that your previously expunged charge CAN be used to enhance punishment, even if some prosecutors prefer not to do so.

What is an expungement?

There are two types of expungements: a partial and a full expungement. Regardless of which type you received, your case was most likely removed from Oklahoma State Courts Network (OSCN) and you can now legally say the case never happened.

What is a predicate offense?

Here’s where an expungement can get confusing: While it disappears from view of the general public, it is still accessible by law enforcement agencies. An expunged case can be used as a predicate offense, which is a type of charge where the punishment is lower the first time you are convicted of a crime, but gets worse the more you are convicted of this crime.

A common example of a predicate offense is a DUI. Your first DUI is charged as a misdemeanor and you will typically receive a deferred sentence, which ends in a partial expungement. But even if you pursue a full expungement after receiving a partial, your first DUI can be used to enhance punishment. If you get a second DUI within 10 years of your first, whether the original DUI was expunged or not, you can be charged with a felony.

Can an expunged case be used on a second page?

The second page of the charging information includes a list of eligible prior crimes that can enhance your punishment with more jail time. Much like with the enhancing charges, an expunged case can technically be used on a second page, but opinions differ on whether it should be used. Some counties include it on the second page, while others do not.

Why do some counties choose to exclude expunged priors for enhancement?

There are a few different reasons for this. The first is that office policies are set by the elected district attorney, who can choose whether to utilize expunged cases to enhance charges and punishments. Once the elected DA sets the standard for the office, all assistant DAs will follow it.

Other times, the DA doesn’t set a standard on expunged cases, and it is up to the individual ADA to make a decision about whether to use them. This can create inconsistency between cases, and becomes luck of the draw on which ADA gets your case.

Another reason some counties don’t use expunged priors is that those cases are simply harder to find. Most ADAs look up your priors through OSCN, but an expungement removes the case from that system. However, expunged cases still show up on federal-level background checks.

DAs’ offices typically do not run these background checks on low-level cases, such as DUIs, because of the time and cost involved—but will run them on more serious cases. That being said, DAs can run background checks on anyone with a pending charge before them.

Who can see my expunged case?

Once your case is fully expunged, only government agencies with the ability to run federal-level background checks (DAs’ offices, police departments, sheriff’s offices, and other local law enforcement agencies) can find it.

There has been a recent policy shift in Oklahoma where law enforcement will run these background checks at the time of arrest, providing DAs’ offices with a police report that includes a list of priors. In these instances, prosecutors are more likely to find your prior expunged case.

How can I prevent my case from being used to enhance punishment?

The only way to completely remove the legal implications of a prior case is to receive a gubernatorial pardon. A gubernatorial pardon restores all of your rights (gun rights, voting rights, etc.) and removes your case for purposes of enhancing punishment.

The Bottom Line

Many people believe a case goes away completely once it is expunged, which isn’t accurate. While an expungement does give you the ability to legally say it never happened, your case can still be used to enhance punishment.
You may wonder why you should bother getting your case expunged at all. While expungement may not completely get rid of your criminal charges, it does open a lot of doors and provides additional opportunities you wouldn’t have if the criminal conviction remained on your record. If you’re curious about whether you are eligible for an expungement, take our 60 second eligibility quiz to find out more.