One recent Columbus expungement case in the Franklin County Municipal Court reiterated the procedure that must be followed in expungement cases under the Ohio statute.  In every expungement case – even expungement of dismissed charges – the judge must apply a balancing test to determine whether the interest of the applicant in dismissing the charges outweighs the state’s interest in preserving the records.

See the full text of the case at State v. Draper, 2015-Ohio-1781.

Defendant Applies to Expunge Dismissed Domestic Violence and Assault Records

In this case, Ms. Draper filed an application to expunge or seal the records of her dismissed charges of domestic violence and assault charges, both first-degree misdemeanors.  The application consisted of only the court’s “Application for Sealing of Records” form.

On the form, Ms Draper filled in basic personal identification information, the case number and charges at issue, and information about the case outcome.

Columbus Prosecutor’s Office Objects to Sealing Records of Violence

The Columbus prosecutor’s office filed an objection to her application.  The prosecutor argued in the objection that the government had legitimate interests in maintaining her records.  If dismissed domestic violence or assault records were sealed, they argued, the police could not access the past histories of violence of people they are investigating and the courts could not see past histories of violence of the people appearing in arraignment in order to set a bond.  The state argued that these interests outweighed appellee’s interests in having the records sealed.

The Expungement Hearing – Defendant Did Not Appear Nor Did She Have an Attorney Appear on Her Behalf

The court held an expungement hearing to consider the application.  The prosecutor attended but Ms. Draper did not nor did an attorney appear in her place.  The trial court granted the expungement and sealed the records.

On the entry, the trial court judge checked the box stating: “[t]he Court finds that * * * the interests of the applicant in having the records sealed are not outweighed by any legitimate governmental need to maintain the records.”

Columbus Prosecutor Appeals Decision Granting Expungement

On appeal, the Columbus Prosecutor’s Office argued that the expungement should not have been granted because the Defendant did not show that her interest in sealing the records outweighed the state’s interest in keeping the records.

Expunging Dismissed Charges

Under Ohio’s expungement statute (R.C. 2953.52(B)), in order to expunge dismissed charges, the court must hold a hearing to:

  1. Determine that the case was indeed dismissed and if the case was dismissed without prejudice, determine whether the relevant statute of limitations expired,
  2. Determine whether criminal proceedings are pending against the person,
  3. Consider the reasons against granting the application specified in the prosecutor’s objection, if applicable, and
  4. Ultimately weigh the interest of the applicant in having her records sealed against the legitimate need of the government to maintain those records. State v. Newton, 10th Dist. No. 01AP-1443, 2002-Ohio-5008, ¶ 7.

At the hearing or in the application, the applicant must provide the trial court with information sufficient to demonstrate that her interest in having the records of her dismissed charges sealed is at least equal to any legitimate government interest in maintaining those records.   Just reciting the statutory requirements is not enough.

Here, Ms. Draper did not present testimony or any evidence to demonstrate her interest in having the record of her dismissals sealed.  She just filled out the one-page form without providing any additional information.

Because she failed to meet her burden under R.C. 2953.52 to provide information supporting her interest in sealing her records, the expungement was overturned.

Judge Tyack’s Dissent

Judge Tyack on the Franklin County Court of Appeals dissented.

In his dissent, he pointed out that first and foremost, her charges were dismissed.  Therefore, she should be presumed innocent of the allegations and this should not “count” as a history of violence for purposes of the police or the courts.   He noted, “To me the assertion that a dismissed case is a past history of violence is absurd.”

If you have charges you would like to expunge in Franklin County Municipal Court, call our Columbus expungement attorneys to discuss your options.

Click here for more information on expunging or sealing misdemeanor criminal records in Columbus.

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