Enhancement is a Moot Issue for DWI Expungement Purposes

For individuals trying for a DWI expungement (or to expunge assault-type records, there is one argument that the State loves to emphasize – the record is enhanceable (if the conviction is not more than ten years old) and sealing it would prevent the State from being able to use for future possible crimes. This argument is rife with issues, yet the Courts have tended to buy into it. Thankfully, there has been some appellate case law that favors petitioners. Let’s review why this argument is so bad.

First, the expungement statute already provides protection for the State even when the record is sealed. Under Minn. Stat. 609.03, subd. 7a, the State can already access sealed records – without further court involvement – for charging and sentencing purposes. That means, the State can used a formerly expunged record for future DWI’s, should it need to. Therefore, arguing the State needs the record for expungement purposes literally flies in the face of the statutory protection already afforded.

Second, the argument is based entirely upon speculation – i.e. the petitioner will commit a new crime. Courts have repeatedly frowned upon these type of arguments repeatedly in the expungement context.

Third, and most importantly, the appellate courts have repeatedly stated that the enhancement argument is moot. Just today, for instance, the Court of Appeals noted that a records enhanceability is not one of the twelve factors identified for expungement analysis purposes. In doing so, the Court essentially announced – again – that enhanceability is moot and should not be used against a petitioner by lower courts.

Despite these reasons, a petitioner should fully expect the State to continue to rely upon this enhanceability argument when opposing a DWI expungement. At least now, the petitioner has multiple grounds to stand on to effectively refute this argument and demonstrate to the court how weak the State’s position is to have to rely upon a moot argument in a last ditch effort to oppose an expungement.