If you are Lisa McCullough, you have to be scratching your head wondering why not even judges can agree on Ohio’s statute. Here’s what happened. I see this fact pattern all the time in my practice. 16 years ago, Lisa pled guilty to DUI. She also had a concealed weapon on her when she was arrested for DUI. As is the custom in Franklin County, her felony weapon charge was dismissed for future indictment. After she pled guilty to DUI, she was indicted on the weapons charge. She pled guilty to that offense, too. Again, these arose out of the exact same traffic stop.
Fast forward 16 years. Lisa is 16 years older, she has no other convictions on her record. She files for expungement of her felony weapons conviction. The trial judge grants the expungement (2 days before Christmas in 2011 no less). The State appeals. The State cites a brutal 1999 Ohio Supreme Court decision, State v. Sandlin, that concludes that any DUI conviction bars expungement even if it arises out of the same arrest as the offense sought to be expunged. In other words, once a DUI conviction hits your record, you cannot seal or expunge anything thereafter – even if it is a crime arising out of the DUI arrest.
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Here’s my problem with this rationale. The expungement statute grants this privilege to citizens who erred in life once and have shown sufficient evidence of not being a repeat criminal. I refer to the expungement statute as the “We all make mistakes” law. If you make a mistake, get arrested, plead guilty, pay your dues to society, and live a sufficient number of subsequent years with no criminal transgressions, then you ought to be able to expunge and seal an offense.
Now, not all offenses, even first timers, should be sealed and expunged. Clearly, murders and rapes, and most sex offenses should not be sealed. Those crimes are crimes against humanity that evidence more, much more, than a “we all make mistakes” crime. Drug possession, the “college crimes” (fake ID, underage drinking, weed possession), and other crimes that don’t necessarily manifest as sociopathic or psychopathic tendencies ought to be considered as “eligible” for sealing. Let the judge decide after a full hearing to make a decision if the citizens needs outweigh the State’s needs.
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This brings us back to DUI / OVI in Ohio. I am not prepared to argue that DUI / OVI should be expunged or sealed from one’s record. However, I am prepared to argue that a companion charge arising from the same event ought to be eligible for consideration (felony carrying a concealed weapon). Under Sandlin and now McCullough, the mere act of accepting responsibility and pleading guilty to DUI bars sealing the record for the felony.
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Here’s what I see. The CCW permit holder is stopped on the suspicion of DUI. He pleads guilty to DUI. He then is indicted for the felony weapons violation of possessing a firearm while impaired. There are 2 punishments attendant to this crime. First, you get punished for the CCW violation. Whatever that may be. Sentencing is left to the judge. However, you now are punished the rest of your life as a convicted felon. Because you were DUI at the time, you are no longer eligible to expunge and seal this felony. I just don’t see how this fits the spirit and purpose of the expungement statute.