LEGAL GUIDE
Written by attorney Cullen Adair Tonry | Jun 29, 2012

Louisiana Expungements 2012

WHAT IS AN EXPUNGEMENT?

  • Expungement means removal of a record from public access but does NOT mean destruction of the record. An expunged record is confidential, but remains available for use by law enforcement agencies, criminal justice agencies, LA State Board of Medical Examiners, LA Board of Nursing, LA State board of Dentistry, LA State Board of Examiners of Psychologists, LA State Board of Social Work Examiners, Emergency Medical Services Certification Commission, LA Attorney Disciplinary Board, Office of Disciplinary Counsel, LA Supreme Court Committee on Bar Admissions, or any person or entity requesting a record of all criminal arrests and convictions pursuant to RS 15:587.1 (Provision of information to protect children) LA R.S. 44:9 (G)
  • Except to those listed above, after an expungement is granted, the person need not disclose he/she was ever arrested, convicted, or even that the matter was expunged if the expungement was granted. LA R.S. 44:9 (I)
  • If an expungement is granted, then all rights lost by virtue of an arrest and conviction shall be restored to the person and shall be treated in all respects as not having been arrested or convicted unless otherwise provided in 44:9 or the Code of Criminal Procedure Articles 893 and 894. LA R.S. 44:9(E)1(b) and 44:9(E)3(b)
  • Even though all rights are restored after the expungement, a criminal background check by a healthcare provider SHALL include records which would inform a potential employer of any crimes committed. LA R.S. 44:9(E)4

WHO CAN NOT FILE FOR AN EXPUNGEMENT?

  • A convicted felon while in the custody of the Department of Corrections SHALL have no right or standing to file for an expungement. LA R.S. 44:9 (H)
  • If a misdemeanor conviction arose from circumstances involving a sexual act or of domestic violence. LA R.S. 44:9(A)5(b)
  • Anyone convicted of a sex offense as defined by LA R.S. 15:541 (See Appendix A), involving a child under the age of 17. LA R.S. 44:9(E)2

WHAT ARE THE COSTS OF AN EXPUNGEMENT

  • Bureau of Criminal Identification and Information: $250.00 LA R.S. 44:9 (A)3(a)
  • Sheriff: $50.00 LA R.S. 44:9 (A)4
  • District Attorney: $50.00 LA R.S. 44:9 (A)4
  • Clerk of Court: $10.00 LA R.S. 44:9 (A)3(b)
  • Department of Public Safety, Office of Motor Vehicles: $50.00 (For DUI ONLY)

REFUND OF EXPUNGEMENT COSTS:

  • If the court does not grant the expungement, the Clerk of Court SHALL return the fee to the moving party. LA R.S. 44:9 (A)3(b)

GET FREE EXPUNGEMENTS:

  • The following SHALL not be required to pay ANY fee for an expungement if a certification from the District Attorney verifies that the applicant has no felony convictions and no pending felony charges and at least one of the following:

-Applicant acquitted AFTER trial of ALL charges derived from the arrest, including any lesser and included offenses.

-The District Attorney consents and the case was dismissed, declined to prosecute prior to the time limitations for prosecution, and the applicant did not participate in a pretrial diversion program.

-The applicant was arrested and not prosecuted within the time limits prescribed. LA R.S. 44:9 (K)

  • A Juvenile who successfully completes juvenile drug court SHALL be exempt from payment also. LA R.S. 44:9 (A)3(c)

MISDEMEANOR ARREST ONLY

Any person ARRESTED for a misdemeanor may file for expungement in the Parish in which they were arrested in either of the following instances.LA R.S. 44:9 (A)1

  • If time limits for prosecution have expired.
  • The criminal proceeding has been dismissed, acquitted, or a motion to Quash has been sustained
  • If granted, then the judgment SHALL order all agencies to destroy any record of arrest. However, THIS DOES NOT APPLY TO ARRESTS FOR A FIRST OR SECOND OFFENSE DWI/DUI.

*MISDEMEANOR ARREST AND CONVICTION *

Any Person CONVICTED of a misdemeanor may file for expungement in the Parish in which they were arrested under the following condition:LA R.S. 44:9 (A)5

  • If FIVE OR MORE YEARS have elapsed from the date of the motion and the successful completion of any sentence, deferred adjudication, or period of probation or parole. Notwithstanding the provisions of 892.1 or 894.
  • Applicant is only allowed 1 every 5 years, or 1 every 10 years for DWI/DUI)
  • The motion SHALL include a certification from the District Attorney that the applicant has no felony convictions and no pending misdemeanor or felony charges.
  • If granted, the Court SHALL order all agencies to expunge BUT NOT DESTROY the record

MISDEMEANOR PLEA UNDER ARTICLE 894:

With regards to a plea taken under Louisiana Code of Criminal Procedure Article 894, the court may suspend the imposition or execution of sentence and place the defendant on probation for up to 2 years. LA C.Cr.P. Article 894 A(1)

  • The Court may suspend, reduce, or amend a misdemeanor sentence after the defendant has begun to serve the sentence. LA C.Cr.P. Article 894 A(4)
  • Upon Petitioning the court to set aside and plea for a DUI, an additional $50.00 cost paid to the Department of Public Safety and Corrections, office of motor vehicles. LA C.Cr.P. Article 894 A(5)
  • When imposition of sentence has been deferred, and the court finds at the conclusion of the period of deferral that the defendant has not been convicted of any other offense during the period of the deferred sentence, and that no criminal charge is pending against him, the court may set the conviction aside and dismiss the prosecution. However, for a DUI, proof is required from the Department of Public Safety that the $50.00 has been paid. LA C.Cr.P. Article 894 B(1)
  • The dismissal of the prosecution shall have the same effect as an acquittal, except that the conviction may be considered as a first offense and provide basis for subsequent prosecution as a multiple offender. LA C.Cr.P. Article 894 B(2)
  • Discharge and dismissal under this provision may occur only once with respect to any person during a five-year period. However, discharge and dismissal under this provision for the offense of operating a vehicle while intoxicated may occur only once with respect to any person during a ten-year period.LA C.Cr.P. Article 894 B(2)
  • Nothing contained herein shall be construed as being a basis for destruction of records of the arrest and prosecution of any person convicted of a misdemeanor. LA C.Cr.P. Article 894 C)

*FELONY ARREST ONLY *

  • Any person ARRESTED for a felony or one of the enumerated 14:34.2 (Battery on a Police Officer), 14:34.3 (Battery on a School Teacher), or 14:37 (Aggravated Assault) may file for expungement if:LA R.S. 44:9 (B)
  • The District Attorney declines to prosecute, an acquittal, a dismissal, or a sustaining of a Motion to Quash; AND
  • The prosecution for the offense is without substantial probative value as a prior act for any subsequent prosecution.
  • If granted, the Court shall order all agencies to expunge. (No mention of Destruction of records)
  • Any person who has been ARRESTED for a felony may file for expungement if: LA R.S. 44:9 (C)
  • THE TIME LIMITATION FOR THE INTITUTION OF PROSECUTION HAS EXPIRED.
  • If granted, the Court shall order all agencies to expunge. (No mention of Destruction of records)

APPLICABILITY OF ARTICLE 893:

  • With regards to a plea taken under Louisiana Code of Criminal Procedure Article 893, when in the best interest of the public, the court, after a first or second conviction of a noncapital felony, may suspend, in whole or in part, the imposition or execution sentence and place the defendant on probation. The court shall not suspend the sentence of the following:LA C.Cr.P. Article 893 A
  • Applicable crimes of violence enumerated are: (1)Solicitation for murder, (2)First degree murder, (3)Second degree murder, (4)Manslaughter, (5)Aggravated battery, (9)Aggravated rape, (10)Forcible rape, (11) Simple rape, (12)Sexual battery, (13)Second degree sexual battery, (14) Intentional exposure to AIDS virus, (15)Aggravated kidnapping, (16)Second degree kidnapping, (18) Aggravated arson, (20)Aggravated burglary, (21) Armed robbery, (22)First degree robbery, (26)Assault by drive-by shooting, (27) Aggravated crime against nature, (28)Carjacking
  • Except as otherwise provided by law, the court shall not suspend a felony sentence after the defendant has begun to serve the sentence. LA C.Cr.P. Article 893 D
  • If the court finds at the conclusion of the probationary period that the probation of the defendant has been satisfactory, the court may set the conviction aside and dismiss the prosecution. The dismissal of the prosecution shall have the same effect as acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and further shall be considered as a first offense for purposes of any other law or laws relating to cumulation of offenses. Dismissal under this Paragraph shall occur only once with respect to any personLA C.Cr.P. Article 893 E(2)
  • N othing contained herein shall be construed as being a basis for destruction of records of the arrest and prosecution of any person convicted of a felony.LA C.Cr.P. Article 893F

DESTRUCTION OF RECORDS:

  • No destruction of ANY arrest and prosecution records of a person convicted of a felony, regardless of 893. LA R.S. 44:9(E)1
  • The Court MAY order the destruction of a misdemeanor conviction dismissed pursuant to Article 894. EXCEPT REGARDING TO ANY 1ST OR 2ND DWI. LA R.S. 44:9(E)3(a)

PETITION FOR DESTRUCTION OF RECORDS:

  • After an expungement is granted, a person may petition the court for the destruction of records previously expunged if:LA R.S. 44:9(J)
  • Petition is served on arresting agency and custodian of records at least 15 days prior to the hearing.
  • Petition must have written consent from the District Attorney and that consent may be withdrawn at any time prior to the hearing.
  • If granted, the court SHALL order the records to be destroyed.

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