I get a ton of calls about expungements. Most of them go something like this – “I was thinking of starting a new job and when they went to go run a background check, an old charge showed up on my record. Can you make that charge go away by next week?”
The answer to the question as to whether I can make it go away next week is a resounding “no.” For the reasons I will discuss in my subsequent post on this topic, the expungement process can be a lengthy one. It certainly cannot happen by next week.
The answer as to whether I can make it “go away” is a “maybe.” So, let's review the law governing expungements in Louisiana.
Before getting into the nitty-gritty of expungement law, I think it important to discuss some of the Louisiana Legislature's findings as to expungements. First, an expungement in Louisiana does not mean that records of a prosecution and/or conviction are destroyed, only that they are removed from public record. When I first started practicing, you could get some expunged records destroyed, but, alas, this is no longer the case. The Louisiana State Police is now required to keep a confidential list of all expunged records for use by law enforcement and other statutorily defined agencies. Second, the legislature has expressly stated that “[t]he inability to obtain an expungement can prevent certain individuals from obtaining gainful employment” (no shit!) and its hope that expungements “will provide opportunities to break the cycle of criminal recidivism, increase public safety, and assist the growing population of criminal offenders reentering the community to establish a self-sustaining life through opportunities in employment.”
With that being said, the Code of Criminal Procedure separates expungements into three categories: (1) motions to expunge arrests that did not result in a conviction, (2) motions to expunge records of an arrest and a misdemeanor conviction, and (3) motions to expunge records of an arrest and a felony conviction.
Unsurprisingly, a motion to expunge an arrest that did not result in a conviction is the easiest of the three to handle. Essentially, any person who was arrested for an offense that was dismissed, refused by the district attorney's office, or where the statute of limitations has run can apply for an expungement immediately after the offense was dismissed, refused, or expired. This includes any offenses that were dismissed through a diversion or pre-trial intervention program. The only exception to immediacy is for DWI offenses, where you must wait 5 years from the date of the offense to file an expungement if the case is dismissed under a pretrial diversion program. The codal article governing these expungements is Louisiana Code of Criminal Procedure art. 976.
Filing expungements for offenses which resulted in a misdemeanor conviction are a little tougher to deal with. In order to obtain an expungement which resulted in a misdemeanor conviction, one of the following two situations must apply: (1) the conviction was set aside and the prosecution dismissed pursuant to Louisiana Code of Criminal Procedure article 894, or (2) more than five years have elapsed since the person completed any sentence, probation, parole, or deferred adjudication AND has no felony charge pending against him or her. Importantly, no person can expunge a conviction where the offense was a misdemeanor sex offense (unless the expungement is an interim expungement – see below), domestic abuse battery, or stalking. If the offense was dismissed pursuant to article 894, there is no time limitation on filing subsequent misdemeanor expungements. If the person is seeking to expunge under the “more than five years have elapsed” language, he or she cannot file another misdemeanor expungement for five years. If the misdemeanor offense was for DWI, that person cannot file another expungement for another DWI for another ten years. The codal article governing these expungements is Louisiana Code of Criminal Procedure art. 977.
Filing expungements which resulted in a felony conviction(s) are the toughest of all. In order to obtain an expungement under those circumstances, the conviction must have been set aside and the prosecution dismissed pursuant to Louisiana Code of Criminal Procedure article 893, or more than ten years must have elapsed since the person completed any sentence, deferred adjudication, probation, or parole based on the felony conviction (and has no criminal charge pending against him). As a general rule, you cannot expunge crimes of violence, sex crimes, some serious drug crimes, and felony-level domestic abuse battery. However, certain crimes of violence (aggravated battery, second degree battery, aggravated criminal damage to property, simple robbery, purse snatching, or illegal use of weapons or dangerous instrumentalities) can be expunged if the person meets certain criteria. Unlike misdemeanor expungements, you must wait 15 years before filing a subsequent felony expungement unless the prosecution is dismissed and the conviction set aside pursuant to Louisiana Code of Criminal Procedure art. 893. The codal article governing these expungements is Louisiana Code of Criminal Procedure art. 978.
Finally, as part of the legislature's overhaul of the expungement laws in 2014, it created a new category of expungements called “interim expungements.” These are available to persons that were arrested for a felony, but later convicted of a misdemeanor. My guess is that the legislature created interim expungements because the situation that necessitates it is relatively common. According to Code of Criminal Procedure art. 985.1, “[i]n such cases, only the original felony arrest may be expunged.” However, the same article states that “[t]he interim motion to expunge a felony arrest which results in a misdemeanor conviction from criminal history is separate and distinct from an expungement of a final conviction pursuant to Articles 976, 977, and 978 of this Code.” I interpret this to mean that if you are arrested for a felony and convicted of a misdemeanor, you can file an interim expungement to expunge the original felony arrest and file a second expungement to expunge the misdemeanor conviction. The codal article governing interim expungements is Louisiana Code of Criminal Procedure art. 985.1.
Next time, I will discuss the expungement process, how I handle expungements (and I've done a lot of them), the various documents that are required to file an expungement, and some pitfalls for the unwary. If you are looking to expunge an arrest or conviction, I would highly suggest that you call the Law Office of Alex Kriksciun today!