Offense not removed from driving record - is DOT liable for damages?

[danno6925]

What is the name of your state? Pennsylvania

There is a heated debate going on in my office right now about this regarding one of my co-workers:

Say a DUI offender completes the ARD (Accelerated Rehabilitation Disposition) program, but the offense is not wiped from their driving record 5 years after ARD completion. Is there a period of time after which the DOT can be compelled by the court of the Commonwealth of PA to comply with the expungement?

Would the DUI offender then have any recourse against PENNDOT for not removing this from the driving record and thus causing her insurance rates to skyrocket when her ins company discovered it was present on the DOT record even though her criminal record was completely expunged?

Personally, I can understand the mentality behind PENNDOT's decision to leave the offense on the records of the offenders, since they committed a potentially deadly crime, but is the agreement on PENNDOT's part to remove this offense grounds for a lawsuit on the driver's part, as they have suffered significant financial damages as a result of the DOT's refusal to remove the offense? Damges at this point would be in excess of $7,500 in additional premiums - hardly chump change...

Any educated advice would be appreciated.

 

[RedemptionMan]

What is the name of your state? Pennsylvania

There is a heated debate going on in my office right now about this regarding one of my co-workers:

Say a DUI offender completes the ARD (Accelerated Rehabilitation Disposition) program, but the offense is not wiped from their driving record 5 years after ARD completion. Is there a period of time after which the DOT can be compelled by the court of the Commonwealth of PA to comply with the expungement?

Would the DUI offender then have any recourse against PENNDOT for not removing this from the driving record and thus causing her insurance rates to skyrocket when her ins company discovered it was present on the DOT record even though her criminal record was completely expunged?

Personally, I can understand the mentality behind PENNDOT's decision to leave the offense on the records of the offenders, since they committed a potentially deadly crime, but is the agreement on PENNDOT's part to remove this offense grounds for a lawsuit on the driver's part, as they have suffered significant financial damages as a result of the DOT's refusal to remove the offense? Damges at this point would be in excess of $7,500 in additional premiums - hardly chump change...

Any educated advice would be appreciated.

Insurance companies get driver records on their insured once every two - four weeks for DMV. Criminal records get expunged; however it is mainly up to the defendent to make sure that the expungement occurs at the DMV level since the judicial systems having the workload they do; often will not forward the expungements on or only remove it from the state and federal criminal levels.

You can ask to have the information fixed which you have? right. Once that is corrected then you should ask the insurance company and see if they will rerate your insurance policy. You can check around with some attorneys but I do not think that you will find one to take the case. All you can do is ask them to fix it. Once that is done ask the insurance to correct it, but it is up to them to rate your insurance premiums not the PENNDOT.... good luck ....

 

[seniorjudge]

Q: Would the DUI offender then have any recourse against PENNDOT for not removing this from the driving record and thus causing her insurance rates to skyrocket when her ins company discovered it was present on the DOT record even though her criminal record was completely expunged?

A: No. Google sovereign immunity, especially those parts on ministerial duties.

 

[danno6925]

So expungement doesn't really MEAN expungement

Redemptionman:

This was not my DUI. Girl in my office has been paying super high premiums for past 5 yrs. She completed the ARD program. Since her criminal record was expunged in this matter, there was debate among my officemates and I as to whether or not the court can compel the DOT/DMV to clear the record, and whether or not she can sue this department for intentional wrongdoing or negligence.

I am of the opinion that the court can compell the DMV, since that would be the essence of an expungement's intent - to wipe the slate clean. The DMV only listed the nformation based on what the criminal justice arm of gov't told them, so how can the same dept refuse to remove info coming from the same branch of government that originally reported it to them in the first place? I find it highly suspect that DMV records are updated so rapidly to reflect a DUI stop (she said hers hit before her policy expired that year) and take numerous phopnecalls/letters/courtaction, etc to get them removed.

She was a first time offender, and was told by the Da's office that she can actually say she has never been convicted of a crime. My reasoning at this lunch-table debate was that since there was no crime committed in the eyes of the DA, why is it that the DMV is allowed to leave it on her record as a crimminal offense? They can't possibly have it both ways - can they?

The best example I was able to find on the subject was from the superior apellate court ruling in 2003 in the matter of M.M.M. V PennDOT. The opinion paper noted that 7 years is the limitation on how long the DUI may be kept on the record.

SJ:
So those momo's at the DMV are protected under sovreign immunity? I guess she's got nothing by way of a suit claiming big time damages then.

Follow up question - Couldn't she petition the court to have her ENTIRE record expungement include the driving record as well? It seems to me that since it stems from the original incident which is expunged from the records - and thus "didn't happen". Again, this is more an academic interest than anything. She's wondering if she should get an attorney to deal with this. I told her an attorney wouldn't hurt. Depends on what will cost more, leaving the DUI on her record or having the lawyer fight it out in court.

 

[RedemptionMan]

States are different. I had a reckless driving conviction expunged and when the court I went to did not remove it from the DMV. I called the records division in my states head department of driving records office and told them that the offense was expunged and could they please remove it. I faxed in the expungement form and they followup with correcting it.

Expungements are generally granted for criminal records thus the courts in general practice will not send the expungements to the traffic division offices. She should have followed up to make sure that it was actually done. I am surprised that MADD et al. would allow her to expunge a DUI offense in my state this would not have happened.

Again the PENNDOT did not make her drive drunk and they are reporting accurate information to them at the time not being aware of the expungement. Call the main records division for the state and have them fix it then all will be good again.....

 

[danno6925]

Update

Just spoke to my coworker. She had a conversation with her attorney, who informed her that he would look into the driving record. She mentioned that he was impressed with her research (read:my research) and that he would contact the DA to determine whether or not the PennDOT records should be erased, but reiterated my finding of the 7 yr holding rule for documents.

 

[garrula lingua]

The insurance company is NOT bound by the 'expungement' process of the court.

She was, correctly - IMHO- charged higher insurance rates, based on what the insurer knew of her record - aha - the American Way !!!

Expungement doesn't preclude persons/companys from using the negative information of which they became aware.
(Besides, she could have searched for cheaper insurance).

Try getting a high security clearance after you had your misdemeanor case 'expunged' -- aint gonna keep law enforcement/military security from knowing about your crime (and private sources who culled the info re the original conviction).
They're gonna know of your conviction.

Expungement isn't so great.

 

[RedemptionMan]

Try getting a high security clearance after you had your misdemeanor case 'expunged' -- aint gonna keep law enforcement/military security from knowing about your crime (and private sources who culled the info re the original conviction).
They're gonna know of your conviction.

Expungement isn't so great.

true on the security clearence issue. Recent case law undermines your last statement just take a look at the huge civil judgements people get against private companies that report expunged convictions. They tend to get the information correct and double even triple check the source. True you are not going to work for the FBI, CIA or be a police officer but at least you can get a decent job now without having to explain a record to a portential employer. Expungement is greater than having a criminal record. Would you rather rehabilitate criminals or have them repeat offend and end up in more trouble? people deserve second chances and that is what expungement laws allow. I quess for all those red states expungement laws aren't so great cause they DO NOT have any....

 

[danno6925]

The insurance company is NOT bound by the 'expungement' process of the court.

That was never a point of debate. The debate was over whether or not the DMV could be compelled to comply with the expungement and remove evidence of a cimminal "conviction" when one in fact did not occur. At least not after the expungement was complete.

The insurance company simply offered her insurance premiums based on what they found. My argument was that had the DMV complied with the order of the court for expungement, the ins carrier could not have found evidence of the citation she technically "didn't" receive.

As it turns out, there is a 7 year period (info varies between 7 and 10 yrs depending on the site you visit) during which the superior appellate court of PA has upheld as allowable for the DMV to keep these records within their databases searchable.

people deserve second chances and that is what expungement laws allow.

I'm all for the second chance. It's the third, fourth and fifth chance where my patience runs thin.

 

[garrula lingua]

.....
How did you/she ever propose to prove that the insurance company only became aware of the DUI AFTER the expungement (and not prior).
.....
Why would Motor Vehicles be under any requirement to change their records which law enforcement utilizes (in this case, to charge for a prior DUI) because of an 'expungement' ?

BTW, some nutty state Judge may order 'expungement' of a felony vehicular manslaughter charge - it doesn't mean Motor Vehicles will return the driving privileges OR stop retaining/disseminating that information.

Expungement isn't so great. It also has very little to do with whether a person rises above adversity and becomes an admirable & productive member of society. Many brilliant and productive people had criminal records - it didn't stop their success (and a lot of people I greatly admire are successful IMO, although few people know them - they're the everyday heroes.).

We all get second and third chances, etc. to straighten out our messes - thst's life.

...and, the most important thing is: hopefully, OP's friend will never again drive while impaired.

 

[danno6925]

How did you/she ever propose to prove that the insurance company only became aware of the DUI AFTER the expungement (and not prior).

Insurance rates went up after the expungement. I presumed that the ins carrier learned of it after the expungement.

Why would Motor Vehicles be under any requirement to change their records which law enforcement utilizes (in this case, to charge for a prior DUI) because of an 'expungement' ?

The DMV is able to be compelled by the court of the Commonwealth. Check up on your case law. If the Court of Common Pleas or the Superior Appellate Court should compel them, the DMV is required to comply with the orders of the court regarding the expungement. My question is regarding the records themselves. The problem is, if a crime was never committed under the conditions of an ARD program agreement, how is the entry on the record allowable?

Expungement isn't so great. It also has very little to do with whether a person rises above adversity and becomes an admirable & productive member of society

So you're saying that expungement allows people to keep comitting crime? C'mon, even you have to know your opinion is crap. To give someone a second chance is human. To offer a thrird, fourth, fifth, etc chance is just stupid.

Just to clear things up - she has not ceased drinking, but she HAS stopped drinking and driving. This is what everyone has decided is important - not driving under the influence. She's all about the cabride home, and that is a good thing.

 

[garrula lingua]

per danno

The problem is, if a crime was never committed under the conditions of an ARD program agreement, how is the entry on the record allowable?

A crime WAS committed.

and, probably, during the pendency of the ARD, the info was public.

Who guarantees (??) confidentiality on ARD pleas ?
Motor Vehicles bureaus usually learn of arrests from the police agency and convictions from the court - unless PA is different (??)

So, was it the court's oversight regarding their 'promised' procedures on ARD ??

Are you sure Motor Vehicles reported this differently than the info they received from the court ?

Either way, she was lucky to get ARD.
IMO, she has to do some further research before thinking of a lawsuit against either MV or the court.

 

[danno6925]

A crime WAS committed.
and, probably, during the pendency of the ARD, the info was public.

Can't argue with that. I would have presumed that the DA's office could keep it on the DL while the ARD was pending and report it only if the drunk couldn't get through the program. Looks like it's the other way around though. I would imagine that during the pendancy of the ARD, the records would have been public, but afterwards they're supposed to be sealed.

So, was it the court's oversight regarding their 'promised' procedures on ARD ??

No, it appears that the court notified the DMV, but the DMV took the position that they don't give a rat's flying flaming rear end who told them to remove it, they ain't gonna comply.
Evidently, there is a 7 year period during which the driving record will reflect the DUI, and if the court seals the record, it is supposed to drop from their records. I guess my officemate has 2 more years to suffer those mile high rates.

Either way, she was lucky to get ARD.

Couldn't agree more.

IMO, she has to do some further research before thinking of a lawsuit against either MV or the court.

Nah, she'll lose. Not because of the Sovreignty issue raised by SJ, but because there appears to be case law in the appellate courts of the commonwealth of PA that would support the DMV retaining records of a non-criminal nature for 7 years after the records are expunged.

Course, she could be the case that gets that turned around once and for all, but I doubt it.

 

[moburkes]

I guess my officemate has 2 more years to suffer those mile high rates.

Most insurance companies don't surcharge for violations that are 5 years old. People forget that insurance companies rates are not only based on tickets/accidents. With some companies, your friend may not qualify for a good driver discount at this point, but he is probably not being surcharged for it. The company may simply have had multiple rate increases based on previous claims paid, which increased everyone's premium in that same rate category.