April 23, 2014
Sealing Records

by Justice Paul E. Pfeifer

For Marlon Pariag, New Year’s Eve of 2010 was not a good night. He was pulled over that night by the Ohio State Highway Patrol. Traffic stops don’t normally develop into cases that come before us – the Ohio Supreme Court. But this one did.

Pariag was charged with a traffic offense. He was also charged with possession of drugs, which is a minor misdemeanor, and possession of drug paraphernalia, a fourth-degree misdemeanor. The traffic offense and the drug charges were assigned separate case numbers, as is required. But the drug charges were dismissed when Pariag entered a plea in the traffic case.

In March 2011, Pariag applied to have the records sealed that pertained to the drug charges that had been dismissed. The state objected and argued that because the record of a traffic conviction could not be sealed (in accordance with Ohio law) the record of the companion case – the drug charges – could not be sealed. According to the state, because the drug-related charges arose from the same incident as the traffic conviction, the dealing with the sealing of records permanently precluded Pariag from applying to have the dismissed drug charges sealed.

The trial court disagreed and ordered the records of the dismissed drug charges sealed, concluding that the conviction in the traffic case did not prevent the sealing of the records in the criminal case involving the drug charges.

Upon reviewing the case, the court of appeals affirmed the trial court. After that, Pariag’s case came before us.

By a four-to-three vote, our court reversed the court of appeals’ judgment. The majority held that a trial court is precluded from sealing the record of a dismissed charge if that charge arises “as a result of or in connection with the same act” that supports a conviction and when the records in the other charge are not eligible to be sealed.

The majority pointed out that the sealing – or “expungement” – of a criminal record is an “act of grace created by the state.” It should be granted only when all requirements for eligibility are met, because it is a “privilege, not a right.”

The records-sealing law that pertains to this case states that “any person who is found not guilty of an offense ... or is the defendant named in a dismissed complaint ... may apply to the court for an order to seal his official records in the case.”

The law further states that when “a person is charged with two or more offenses as a result of or in connection with the same act and at least one of the charges has a final disposition that is different than the final disposition of the other charges,” – as was the case with Pariag – the person may not apply to have the record sealed in any of the cases until such time as he would be able to apply to have all the records sealed.

The majority thus maintained that a person cannot apply to have the record of a charge sealed until the records of all the charges can be sealed, and the charge must be one for which the record can be sealed. According to the majority, when multiple offenses have different outcomes, “if the record of one charge cannot be sealed, any charges filed as a result of or in connection with the act that resulted in the unsealable charge cannot be sealed.”

Pariag’s charges in two separate cases resulted in different outcomes – one conviction and two dismissals. “But because the trial court did not determine whether the charges all arose as a result of or in connection with the same act,” the majority wrote, “it is not clear whether his traffic conviction prevents him from applying to seal the record of the drug charges.”

The majority determined that Pariag was ineligible to have the records of the dismissed drug charges – that otherwise would be sealabe under the law – sealed if all charges arose as the result of or in connection with the same act. The records-sealing law “thus focuses not on when separate offenses occurred, but on whether they arose from the same conduct of the applicant.”

Therefore, the majority determined that the case should be sent back to the trial court. The trial court must then decide whether the dismissed drug charges stemmed from the same act as Pariag’s traffic violation. If the court finds that the same conduct generated both charges, the conviction for the unsealable traffic offense will prevent records from the otherwise sealable dismissed drug charges from being sealed.

As mentioned earlier, the vote in this case was four-to-three. I cast one of the dissenting votes. Why? There were three charges in this case. One, a traffic offense, is not eligible to be sealed. One of the reasons traffic offenses are not sealable is that they do not materially affect a person’s life.

The other charges, which were dismissed, were possession of drugs and drug paraphernalia, and those charges are sealable. That makes sense.

Drug offenses can materially affect a person’s life, and the Ohio legislature allows them to be sealed. But with this decision, our court has determined that a material offense that was dismissed and that is ordinarily sealable, cannot be sealed because an immaterial traffic offense cannot be sealed. That doesn’t make sense.

Furthermore, this case did not merit the attention of this court. We should never have accepted jurisdiction. But we did, and so we ought to have affirmed the not unreasonable judgment of the court of appeals – that the law does not prohibit courts from sealing records of dismissed charges in one case when the record of conviction in another case may not be sealed, even if the charges arose out of the same act.

Nevertheless, the majority saw it otherwise, and sent the case back to the trial court to determine if the charges against Pariag arose in connection with the same act; and if they did, his drug convictions would be therefore be unsealable.

EDITOR'S NOTE: The case referred to is State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-1010. Case No. 2012-0819. Decided October 19, 2013. Majority opinion written by Justice Judith Ann Lanzinger.