Trantham, 052819 SCAGO, AGO 3147

• Case Date: May 28, 2019
• Court: South Carolina

The Hon. Ashley Trantham AGO 3147 No. 3147 South Carolina Attorney General Opinions State of South Carolina Office of the Attorney General May 28, 2019          The Hon. Ashley Trantham          South Carolina House of Representatives          522-A Blatt Building          Columbia, SC 29201          Dear Rep. Trantham:          We received your request seeking an opinion on whether South Carolina job applicants whose criminal records have been expunged must disclose an arrest, charge, or conviction on a job application. This opinion sets out our Office's understanding of your question and our response.          Issue (as quoted from your letter):

I am writing to ask for your legal opinion on whether South Carolina job applicants whose criminal records have been expunged must answer truthfully questions on job applications that ask about whether the applicant has ever been arrested, charged or convicted.

Does the law consider the crime never to have happened if the criminal record has been expunged? Can the applicant now answer "no" when asked if he or she has been convicted of a crime? Or. must they answer, "yes, and explain that the records were expunged?"

         Law/Analysis:          The potential legal consequences for failing to disclose an expunged offense will depend in part on the specific statute which authorized the expungement. Generally an expungement removes the records of an arrest or conviction from public view, but does not "un-ring the bell" such that the arrest or conviction effectively never occurred. In certain expungement statutes, however, the General Assembly has expressly undertaken to restore an offender to the status they had before the arrest and protect them from criminal prosecution for denying or failing to - acknowledge the arrest and proceedings. We note that this statement of the law is given in the abstract, and any particular expunged offense must be considered on the particular facts and circumstances of that case.          Our Office is not aware of any general statute which provides an affirmative right to deny the existence of any expunged arrests or convictions. Accordingly, any such right would have to be found in the text of the expungement statute in question. As you likely are already aware, several statutes provide that a criminal record may be expunged under certain circumstances, as described in Section 17-22-910(A) of the South Carolina Code:

(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 simple possession or possession with intent to distribute drug convictions;

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

...