South Carolina General Assembly
122nd Session, 2017-2018

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Indicates Matter Stricken
Indicates New Matter

H. 3789

STATUS INFORMATION

General Bill
Sponsors: Reps. Govan, Yow, Henegan, J.E. Smith, Thigpen, Hart, Clemmons, Whipper and Brown
Document Path: l:\council\bills\bh\7096ahb17.docx
Companion/Similar bill(s): 451

Introduced in the House on February 16, 2017
Introduced in the Senate on April 4, 2017
Last Amended on May 10, 2017
Currently residing in the Senate

Summary: SC Youth Challenge Academy and SC Jobs Challenge Program Expungement Act

HISTORY OF LEGISLATIVE ACTIONS

     Date      Body   Action Description with journal page number
-------------------------------------------------------------------------------
   2/16/2017  House   Introduced and read first time (House Journal-page 19)
   2/16/2017  House   Referred to Committee on Judiciary 
                        (House Journal-page 19)
    3/7/2017  House   Member(s) request name added as sponsor: Clemmons
   3/29/2017  House   Committee report: Favorable Judiciary 
                        (House Journal-page 40)
   3/30/2017  House   Member(s) request name added as sponsor: Whipper, Brown
   3/30/2017  House   Read second time (House Journal-page 36)
   3/30/2017  House   Roll call Yeas-102  Nays-0 (House Journal-page 37)
   3/30/2017  House   Unanimous consent for third reading on next legislative 
                        day (House Journal-page 38)
   3/31/2017  House   Read third time and sent to Senate (House Journal-page 3)
    4/4/2017  Senate  Introduced and read first time (Senate Journal-page 9)
    4/4/2017  Senate  Referred to Committee on Judiciary 
                        (Senate Journal-page 9)
   4/18/2017  Senate  Referred to Subcommittee: Hutto (ch), Malloy, Shealy, 
                        Rice, Timmons
    5/3/2017  Senate  Committee report: Favorable with amendment Judiciary 
                        (Senate Journal-page 17)
    5/9/2017  Senate  Committee Amendment Adopted (Senate Journal-page 55)
    5/9/2017  Senate  Read second time (Senate Journal-page 55)
    5/9/2017  Senate  Roll call Ayes-39  Nays-0 (Senate Journal-page 55)
   5/10/2017  Senate  Read third time and returned to House with amendments 
                        (Senate Journal-page 42)
   5/10/2017  House   Senate amendment amended (House Journal-page 101)
   5/10/2017  House   Returned to Senate with amendments 
                        (House Journal-page 101)
   5/10/2017  House   Roll call Yeas-92  Nays-0 (House Journal-page 108)

View the latest legislative information at the website

VERSIONS OF THIS BILL

2/16/2017
3/29/2017
5/3/2017
5/9/2017
5/10/2017

(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

Indicates Matter Stricken

Indicates New Matter

AMENDED

May 10, 2017

H. 3789

Introduced by Reps. Govan, Yow, Henegan, J.E. Smith, Thigpen, Hart, Clemmons, Whipper and Brown

S. Printed 5/10/17--H.

Read the first time February 16, 2017.

            

A BILL

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, SO AS TO ENACT THE "SOUTH CAROLINA YOUTH CHALLENGE ACADEMY AND SOUTH CAROLINA JOBS CHALLENGE PROGRAM EXPUNGEMENT ACT"; BY ADDING ARTICLE 10 TO CHAPTER 22, TITLE 17 SO AS TO PROVIDE THAT PERSONS ELIGIBLE FOR EXPUNGEMENT OF A CRIMINAL RECORD PURSUANT TO SECTION 17-22-910 WHO SUCCESSFULLY GRADUATE AND COMPLETE THE SOUTH CAROLINA YOUTH CHALLENGE ACADEMY AND SOUTH CAROLINA JOBS CHALLENGE PROGRAM ADMINISTERED BY THE SOUTH CAROLINA ARMY NATIONAL GUARD MAY APPLY TO HAVE THEIR RECORD EXPUNGED UPON SUCCESSFUL GRADUATION AND COMPLETION OF THE PROGRAMS UNDER CERTAIN DELINEATED CIRCUMSTANCES; AND TO AMEND SECTION 17-22-940, AS AMENDED, RELATING TO THE EXPUNGEMENT PROCESS, SO AS TO INCLUDE A REFERENCE TO THE DIRECTOR OF THE SOUTH CAROLINA YOUTH CHALLENGE ACADEMY ATTESTING TO THE ELIGIBILITY OF THE CHARGE FOR EXPUNGEMENT ON AN EXPUNGEMENT APPLICATION.

Amend Title To Conform

Whereas, the South Carolina General Assembly recognizes the efforts of the South Carolina National Guard in administering the South Carolina Youth Challenge Academy program designed to help at-risk youth learn basic skills and achieve the education necessary to succeed in life; and

Whereas, offering two classes a year, the program provides a unique educational environment and serves the state's youth looking for a second chance to succeed; and

Whereas, the program is led by current and retired members of the South Carolina Army National Guard and other branches of the military providing military leadership and discipline to students in the program with the eight core components of the intensive residential program being academic excellence, life-coping skills, job skills, health and hygiene, responsible citizenship, service to community, leadership/followership, and physical fitness; and

Whereas, in partnership with the federal Department of Labor, the State is pleased to offer youth who successfully graduate from the program an opportunity to take part in a five and one-half month South Carolina Jobs Challenge Program which provides training for careers in such fields as nursing assistance, welding, and computer technology; and

Whereas, this approximate yearlong commitment by youths ages sixteen to nineteen towards building a better future warrants allowing those youths that may have a criminal record otherwise eligible for expungement to apply to have their record expunged upon the successful graduation and completion of the South Carolina Youth Challenge Academy and the South Carolina Jobs Challenge Program administered by the South Carolina Army National Guard. Now, therefore,

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    This act may be cited as the "South Carolina Youth Challenge Academy and South Carolina Jobs Challenge Program Expungement Act".

SECTION    2.    Chapter 22, Title 17 of the 1976 Code is amended by adding:

"Article 10

South Carolina Youth Challenge Academy

and South Carolina Jobs Challenge Program Expungement

Section 17-22-1010.    (A)    A person who is eligible for expungement of his criminal record pursuant to the provisions of Section 17-22-910 may apply to have his record expunged pursuant to the procedures provided in Article 9 if he graduates and successfully completes the South Carolina Youth Challenge Academy and the South Carolina Jobs Challenge Program administered by the South Carolina Army National Guard. Notwithstanding another provision of law, such person may apply for expungement immediately upon graduation and successful completion of the South Carolina Youth Challenge Academy and the South Carolina Jobs Challenge Program.

(B)    If the person has had no other conviction during the approximately one-year period as provided in subsection (A), the circuit court may issue an order expunging the records including any associated bench warrant. No person may have his records expunged under this section more than once.

(C)    After the expungement, the South Carolina Law Enforcement Division is required to keep a nonpublic record of the offense and the date of the expungement to ensure that no person takes advantage of the rights of this section more than once. This nonpublic record is not subject to release pursuant to Section 34-11-95, the Freedom of Information Act, or any other provision of law except to those authorized law or court officials who need to know this information in order to prevent the rights afforded by this section from being taken advantage of more than once.

(D)    As used in this section, 'conviction' includes a guilty plea, a plea of nolo contendere, or the forfeiting of bail."

SECTION    3.    Section 17-22-940(E) of the 1976 Code, as last amended by Act 276 of 2014, is further amended to read:

"(E)    In cases when charges are sought to be expunged pursuant to Section 17-22-150(a), 17-22-530(a), 22-5-910, or 44-53-450(b), or 17-22-1010, the circuit pretrial intervention director, alcohol education program director, traffic education program director, South Carolina Youth Challenge Academy director, or summary court judge shall attest by signature on the application to the eligibility of the charge for expungement before either the solicitor or his designee and then the circuit court judge, or the family court judge in the case of a juvenile, signs the application for expungement."

SECTION    4.    Section 17-22-910 of the 1976 Code, as last amended by Act 22 of 2015, is further amended to read:

"Section 17-22-910.    (A)    Applications for expungement of all criminal records must be administered by the solicitor's office in each circuit in the State as authorized pursuant to:

(1)    Section 34-11-90(e), first offense misdemeanor fraudulent check;

(2)    Section 44-53-450(b), conditional discharge;

(3)    Section 22-5-910, first offense conviction in magistrates court;

(4)    Section 22-5-920, youthful offender act;

(5)    Section 22-5-930, first offense drug convictions;

(6)    Section 56-5-750(f), first offense failure to stop when signaled by a law enforcement vehicle;

(6)(7)    Section 17-22-150(a), pretrial intervention;

(7)(8)    Section 17-1-40, criminal records destruction, except as provided in Section 17-22-950;

(8)(9)    Section 63-19-2050, juvenile expungements;

(9)(10)    Section 17-22-530(A), alcohol education program;

(10)(11)    Section 17-22-330(A), traffic education program; and

(11)(12)    any other statutory authorization.

(B)    A person's eligibility for expungement of an offense contained in this section, or authorized by any other provision of law, must be based on the offense that the person pled guilty to or was convicted of committing and not on an offense for which the person may have been charged. In addition, if an offense for which a person was convicted is subsequently repealed and the elements of the offense are consistent with an existing similar offense which is currently eligible for expungement, a person's eligibility for expungement of an offense must be based on the existing similar offense.

(C)    The provisions of this section apply retroactively to allow expungement as provided by law for each offense delineated in subsection (A) by persons convicted prior to the enactment of this section or the addition of a specific item contained in subsection (A)."

SECTION    5.    Section 22-5-910 of the 1976 Code, as last amended by Act 132 of 2016, is further amended to read:

"Section 22-5-910.    (A)    Following a first offense conviction for a crime carrying a penalty of not more than thirty days imprisonment or a fine of one thousand dollars, or both, the defendant after three years from the date of the conviction, including a conviction in magistrates or general sessions court, may apply, or cause someone acting on his behalf to apply, to the circuit court for an order expunging the records of the arrest and conviction and any associated bench warrant. However, this section does not apply to an offense involving the operation of a motor vehicle.

(B)    Following a first offense conviction for domestic violence in the third degree pursuant to Section 16-25-20(D), or Section 16-25-20(B)(1) as it existed before June 4, 2015, the defendant after five years from the date of the conviction, including a conviction in magistrates or general sessions court, may apply, or cause someone acting on his behalf to apply, to the circuit court for an order expunging the records of the arrest and conviction and any associated bench warrant.

(C)    If the defendant has had no other conviction during the three-year period as provided in subsection (A), or during the five-year period as provided in subsection (B), the circuit court may issue an order expunging the records including any associated bench warrant. No person may have his records expunged under this section more than once. A person may have his record expunged even though the conviction occurred prior to June 1, 1992.

(D)    After the expungement, the South Carolina Law Enforcement Division is required to keep a nonpublic record of the offense and the date of the expungement to ensure that no person takes advantage of the rights of this section more than once. This nonpublic record is not subject to release pursuant to Section 34-11-95, the Freedom of Information Act, or any other provision of law except to those authorized law or court officials who need to know this information in order to prevent the rights afforded by this section from being taken advantage of more than once.

(E)    As used in this section, 'conviction' includes a guilty plea, a plea of nolo contendere, or the forfeiting of bail, including out-of-state convictions. For the purpose of this section, any number of offenses for crimes carrying a penalty of not more than thirty days imprisonment or a fine of one thousand dollars, or both, that are closely connected and arose out of the same incident may be considered as one offense and treated as one conviction for expungement purposes.

(F)    No person may have the person's record expunged under this section if the person has pending criminal charges of any kind. No person may have the person's records expunged under this section more than once. A person may have the person's record expunged even though the conviction occurred before the effective date of this section."

SECTION    6.    Section 22-5-920 of the 1976 Code, as last amended by Act 132 of 2016, is further amended to read:

"Section 22-5-920.    (A) As used in this section, ' conviction' includes a guilty plea, a plea of nolo contendere, or the forfeiting of bail, including out-of-state convictions. For the purpose of this section, any number of offenses for which the individual received a youthful offender sentence that are closely connected and arose out of the same incident may be considered as one offense and treated as one conviction for expungement purposes.

(B)(1) Following a first offense conviction as a youthful offender for which a defendant is sentenced pursuant to the provisions of Chapter 19, Title 24, Youthful Offender Act, the defendant, who has not been convicted of any offense while serving the youthful offender sentence, including probation and parole, or for a period of after five years from the date of completion of the defendant's sentence, including probation and parole, may apply, or cause someone acting on the defendant's behalf to apply, to the circuit court for an order expunging the records of the arrest and conviction.

(2)    However, this section does not apply to:

(a)    an offense involving the operation of a motor vehicle;

(b)    an offense classified as a violent crime in Section 16-1-60; or

(c)    an offense contained in Chapter 25, Title 16, except as otherwise provided in Section 16-25-30; or

(d)    an offense for which the individual is required to register in accordance with the South Carolina Sex Offender Registry Act.

(3)    If the defendant has had no other conviction during the service of the youthful offender sentence, including probation and parole, or during the five-year period following completion of the defendant's sentence, including probation and parole, for a first offense conviction as a youthful offender for which the defendant was sentenced pursuant to the provisions of Chapter 19, Title 24, Youthful Offender Act, the circuit court may issue an order expunging the records. No person may have the person's records expunged under this section more than once. A person may have the person's record expunged even though the conviction occurred before the effective date of this section. A person eligible for a sentence pursuant to the provisions of Chapter 19, Title 24, Youthful Offender Act, and who is not sentenced pursuant to those provisions, is not eligible to have the person's record expunged pursuant to the provisions of this section.

(C)    After the expungement, the South Carolina Law Enforcement Division is required to keep a nonpublic record of the offense and the date of its expungement to ensure that no person takes advantage of the rights permitted by this section more than once. This nonpublic record is not subject to release under Section 34-11-95, the Freedom of Information Act, or another provision of law, except to those authorized law enforcement or court officials who need this information in order to prevent the rights afforded by this section from being taken advantage of more than once."

SECTION    7.    Article 11, Chapter 5, Title 22 of the 1976 Code is amended by adding:

"Section 22-5-930.    (A)    Following a first offense conviction of any offense under Title 44, Chapter 53, Article 3 involving the possession of a controlled substance, including those charges for which the person would now be eligible for a conditional discharge pursuant to Section 44-53-450, the defendant after three years from the date of the conviction, including a conviction in magistrates or general sessions court, may apply, or cause someone acting on his behalf to apply, to the circuit court for an order expunging the records of the arrest and conviction and any associated bench warrant.

(B)    If the defendant had no other convictions during the three-year period as provided in subsection (A), the circuit court may issue an order expunging the records including any associated bench warrant.

(C)    No person may have the person's record expunged under this section if the person has pending criminal charges of any kind. No person may have the person's records expunged under this section more than once. No person may have the person's records expunged if the person had a conditional discharge with the prior five years from the date of arrest for underlying conviction if for marijuana, and the prior ten years from the date of arrest for the underlying conviction if for any other controlled substance. A person may have the person's record expunged even though the conviction occurred before the effective date of this section.

(D)    After the expungement, the South Carolina Law Enforcement Division is required to keep a nonpublic record of the offense and the date of expungement to ensure that no person takes advantage of the rights of this section more than once. This nonpublic record is not subject to release pursuant to Section 34-11-95, the Freedom of Information Act, or any other provision of law except to those authorized law or court officials who need to know this information in order to prevent the rights afforded by this section from being taken advantage of more than once.

(E)    As used in this section, 'conviction' includes a guilty plea, a nolo contendere, or the forfeiting of bail, including out-of-state convictions. For the purpose of this section, any number of offenses that are closely connected and arose out of the same incident may be considered as one offense and treated as one conviction for expungement purposes."

SECTION    8.    Section 63-19-2050(C)(2) of the 1976 Code is amended to read:

"(2)    If the person has been taken into custody for, charged with, or adjudicated delinquent for having committed a nonviolent crime, as defined in Section 16-1-70, the court may grant the expungement order. For the purpose of this section, any number of offenses for which the individual received a youthful offender sentence that are closely connected and arose out of the same incident may be considered as one offense and treated as one conviction for expungement purposes."

SECTION    9.    Section 17-22-940(E) and (F) of the 1976 Code, as last amended by Act 276 of 2014, is further amended to read:

"(E)    In cases when charges are sought to be expunged pursuant to Section 17-22-150(a), 17-22-530(A), 17-22-330(A), 22-5-910, or 44-53-450(b), the circuit pretrial intervention director, alcohol education program director, traffic education program director, or summary court judge shall attest by signature on the application to the eligibility of the charge for expungement before either the solicitor or his designee and then the circuit court judge, or the family court judge in the case of a juvenile, signs the application for expungement.

(F)    SLED shall verify and document that the criminal charges in all cases, except in cases when charges are sought to be expunged pursuant to Section 17-1-40, Section 17-22-150(a), Section 17-22-530(A), Section 17-22-330(A), or Section 44-53-450(b), are appropriate for expungement before the solicitor or his designee, and then a circuit court judge, or a family court judge in the case of a juvenile, signs the application for expungement. If the expungement is sought pursuant to Section 34-11-90(e), Section 22-5-910, Section 22-5-920, Section 63-19-2050, or Section 56-5-750(f), the conviction for any minor traffic-related offense which is punishable only by a fine or loss of points that is not related in any way to driving under the influence of alcohol will not be considered as a bar to expungement.

(1)    SLED shall receive a twenty-five dollar certified check or money order from the solicitor or his designee on behalf of the applicant made payable to SLED for each verification request, except that no verification fee may be charged when an expungement is sought pursuant to Section 17-1-40, Section 17-22-530(A), Section 17-22-330(A), Section 17-22-150(a), or 44-53-450(b). SLED then shall forward the necessary documentation back to the solicitor's office involved in the process.

(2)    In the case of juvenile expungements, verification and documentation that the charge is statutorily appropriate for expungement must first be accomplished by the Department of Juvenile Justice and then SLED.

(3)    Neither SLED, the Department of Juvenile Justice, nor any other official shall allow the applicant to take possession of the application for expungement during the expungement process."

SECTION    10.    Article 9, Chapter 22, Title 17 of the 1976 Code is amended by adding:

"Section 17-22-960.    Any employer that employs a worker who has had an expungement shall not, at any time, be subject to any administrative or legal claim or cause of action related to the worker's expunged offense. Employers shall not use expunged information adversely against an employee. No information related to an expungement shall be used or introduced as evidence in any administrative or legal proceeding involving negligent hiring, negligent retention, or similar claims."

SECTION    11.    This act takes effect upon approval by the Governor.

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