TENNESSEE EXPUNGEMENT LAWS
If you or someone you know has ever been charged with a crime (even if it did not result in a conviction), then you probably already know how a criminal case may affect someone’s ability to find a job, apply for a professional license, possess a firearm, vote, be admitted into college, obtain student financial aid, obtain life or disability insurance, run for public office, or participate in many other activities or endeavors. Don’t let a criminal case ruin your prospects, even if the case occurred a long time ago. Your case may be eligible for expungement!
Seek a knowledgeable Tennessee lawyer, familiar with expungement laws and procedure, to investigate whether you may be eligible to expunge a prior criminal case.
What does “Expungement" mean?
· Under Tennessee law, an expungement (sometimes called “expunction") means that the actual public records of a criminal case are removed and destroyed from the court records. When a case is expunged, the court clerk destroys the court file. Thereafter, if someone calls the courthouse and asks the clerk about any prior criminal history of that individual, the clerk will have no record of the prior case and will say that there is no prior record. In fact, release of expunged data is a criminal offense punishable by jail and a fine. Note---certain records, such as files at the prosecutor’s office, police records, DCS and TBI files, are generally not considered public and thus are not required to be removed and destroyed. See Tennessee Code Annotated §40-32-101 for more details.
What cases are eligible for expungement?
· Not all cases are eligible to be expunged. The following cases are entitled to be expunged from public record, and the government is NOT allowed to charge any fee to process the expungement request for:
o a dismissal (sometimes a case is “dismissed on costs"---that means the case may be expunged after court costs are paid),
o an acquittal (after trial by judge or jury),
o a nolle prosequi (a prosecutor’s decision to not prosecute),
o cases where a “no true bill" was returned by a grand jury,
o cases where a person was arrested but not charged, and
o certain underage alcohol possession offenses. See Tennessee Code Annotated §57-3-412(a)(3)(C) and 57-5-301(e).
o Sometimes a case is “retired". Depending on the jurisdiction, that often means that after a certain period of time has elapsed with the individual exhibiting good behavior and not incurring new charges, the “retired" charge can become a “dismissed" charge and thus eligible for expungement (with or without court costs).
o Finally, individuals who successfully completed pre-trial diversion ( §§ 40-15-102 -- 40-15-107) or judicial diversion ( § 40-35-313) are also entitled to have those cases expunged. The difference for diversion cases is that the expungement process is not free---there are court fees that must be paid.
· Up until July 1, 2012, any prior case that resulted in a conviction was generally NOT eligible for expungement. Put simply, it meant that a conviction was forever. That meant that if an individual, for example, was charged and convicted of a minor crime some 20, 30, 40 or even 50 years ago, and lived a model life ever since, then he or she would have no mechanism by which to expunge the prior indiscretion from public record. But that all changed with the recent amendment to Tennessee Code Annotated § 40-32-101. Now, folks who had an actual conviction for certain non-violent offenses may be eligible to apply for expungement. Several conditions must be met, including the following:
o Five years must have passed since the case was completed (as in five years from the point the sentence of confinement or probation ended),
o The actual offense must qualify under the expungement law (it must be a non-violent misdemeanor or class-E felony, and some offenses such as DUI and domestic assault are automatically ineligible; additionally, convictions occurringprior to November 1, 1989 are subject to different definitions of eligible offenses),
o The person must have paid all applicable court costs, fines, probation fees and restitution,
o The person must have completely satisfied all requirements of the sentence (such as probation requirements),
o The person must file a petition in the court where the conviction occurred, and pay an application fee, and
o At the time of filing, the person must have never been convicted of any criminal offense, including federal offenses and offenses in other states, other than the offense committed for which the petition for expungement is filed.
o The District Attorney has a right to challenge the petition, and the judge may decide to conduct a hearing on the matter.
o If the judge denies the petition, then the person may re-apply two years later.
If you believe that you fit the above criteria for having a Tennessee state charge (or charges) expunged from public record, then contact the Law Office of Bryan Stephenson for a free consultation.