EXPUNGEMENTS

I. Generally

“Expunge” To destroy; blot out; obliterate; erase; efface designedly; strike out wholly. The act of physically destroying information – including criminal records – in files, computers, or other depositories. Black’s Law Dictionary, Sixth Edition.

In Louisiana, the procedure commonly referred to as expungement is governed by LSA-R.S. 44:9. This statute governs expungements of violations of municipal and parish ordinances, misdemeanors, and felonies. The procedure and remedy allowed are determined by the type of violation or crime and the nature of the acquittal, i.e., an acquittal obtained pursuant to Article 893 or 894 of the Code of Criminal Procedure.

The expungement statute has been amended and changed many times without any thought as to how the changes will integrate with the rest of the statute. As a result, the statute is convoluted and ambiguous, at best, and leaves many questions about its remedies and procedures. However, since the purpose of 44:9 is remedial, rather than penal, and it is to be liberally construed to make the statutory rule apply in more situations than would be the case under strict construction. State v. Boniface, 369 So.2d 115 (La. 1979). This liberal construction is in favor of those individuals entitled to benefits of the statute. Ibid. It should not be used to defeat the intention of the legislature. Ibid. Therefore, in understanding the procedures and remedies of 44:9, one must interpret the statute with such a construction in mind.

There are two major distinctions to keep in mind in order to understand Louisiana’s expungement statute: 1) “expungement” and “destruction” are not synonymous, and 2) an acquittal obtained pursuant to Article 893 or 894 of the Code of Criminal Procedure is treated differently than an acquittal obtained from trial.

II. Misdemeanors and Violations of Parish or Municipal Ordinances

A. Procedure The procedure to expunge misdemeanors and violations of municipal and parish ordinances is found at 44:9(A). The decision of whether to use the felony or misdemeanor procedure is determined by the charge filed, not the violation stated for the arrest. State v. Sims, 357 So.2d 1095 (La. 1978) .

1. Who May File Any person who has been arrested for the violation of a municipal or parish ordinance or a misdemeanor

2. Where to File A written motion is to be filed in the district, parish, or city court in which the violation was prosecuted or in the district court in the parish where the person was arrested, if no prosecution was instituted. A contradictory hearing is not statutorily required although one appellate court has stated that they should be done. See State v. Williams, 536 So.2d 1312, (La. App. 2nd Cir. 1989).

3. Eligibility for Expungement A person is entitled to relief if:

a. The time limitation for the institution of prosecution of the offense has expired and no prosecution has been instituted; or

b. If a prosecution has been instituted and the proceedings were finally resolved by dismissal, sustaining a motion to quash, or an acquittal. [The acquittal referenced here does not include an acquittal obtained pursuant to Article 894 of the Code of Criminal Procedure. Such an acquittal is addressed at 44:9(E)(3).]

B. Relief Available If the court finds that the mover is eligible for expungement,

1. It shall order all agencies and law enforcement offices having record of the arrest, whether on microfilm, computer card or tape, or on any photographic, electronic, or mechanical method of storing data, to destroy any record of arrest, photograph, fingerprint, or any other information of any and all kinds or descriptions.

2. The court shall also order such custodians of records to file a sworn affidavit to the effect that the records have been destroyed and that no notations or references have been retained in the agency’s central repository which will or might lead to the inference that any record ever was on file with any agency or law enforcement office. The original of such affidavit shall be kept by the court and a copy shall be retained by the affiant agency, which copy shall not be a public record and shall not be open for public inspection but rather shall be kept under lock and key and maintained only for internal recordkeeping purposes.

C. DWI’s The last sentence of subsection 44:9(A)(2) states that it does not apply to arrests for a first or second violation of any ordinance or statute making criminal the driving of a motor vehicle while under the influence of alcoholic beverages or narcotic drugs, as denounced by R.S. 14:98 (Operating a Vehicle While Intoxicated) or 98.1 (Underage Driving Under the Influence). This very language, with the exception of “or 98.1,” has been decreed to be unconstitutional as a denial of equal protection because it was found not to be rationally related to a legitimate state interest. State v. Bradley, 360 So.2d 858 (La. 1978). The inclusion of 14:98.1 (Underage Driving Under the Influence) should not alter this analysis. Therefore, persons arrested for DWI are eligible for expungement if they meet the requirements outlined above. [Note that DWI acquittals obtained pursuant to Article 894 of the Code of Criminal Procedure are not covered here. They are addressed in 44:9(E)(3).]

D. There is no express provision to expunge misdemeanors when a prosecuting authority declines to prosecute as there is for felonies and certain misdemeanors. Liberal construction of the statute should allow for such, but it may be prudent to have the prosecution instituted and dismissed, simply to comply with the express wording of the statute, if the defendant does not want to wait for the time to lapse for the institution of the prosecution.

III. Felonies and violations of 14:34.2 (Battery of a Police Officer), 14:34.3 (Battery of a School Teacher), or 14:37 (Aggravated Assault)

A. Procedure The procedure to expunge felonies and violations of 14:34.2 (Battery of a Police Officer), 14:34.3 (Battery of a School Teacher), or 14:37 (Aggravated Assault) is found at 44:9(B).

1. Who May File Any person who has been arrested for the violation of a felony or a violation of 14:34.2 (Battery of a Police Officer), 14:34.3 (Battery of a School Teacher), or 14:37 (Aggravated Assault).

2. Where to File A written motion is to be filed in the district court in the parish where the person was arrested. A contradictory hearing is required with the district attorney and the arresting law enforcement agency.

3. Eligibility for Expungement A person is entitled to relief if:

a. The district attorney declines to prosecute, or the prosecution has been instituted and such proceedings have been finally disposed of by acquittal, dismissal, or sustaining a motion to quash [The acquittal referenced herein does not include an acquittal obtained pursuant to Article 893 or 894 of the Code of Criminal Procedure. Such an acquittal is addressed at 44:9(E)(1) & (3).]; and

b. The record of arrest and prosecution for the offense is without substantial probative value as a prior act for any subsequent prosecution. This is almost always the case since only convictions, not acquittals, are admissible into evidence. According to State v. M.K.O., 36,524-CA (La. App. 2 Cir., 12/18/02) 833 So.2d 1265, 1267:

“Louisiana courts rely on the defendant's presumption of innocence under our Constitution and the principle of ‘fundamental fairness’ to conclude that the defendant is entitled to expungement of an arrest record, and the court is required by law to grant relief, if there has been a dismissal of the offense. The statute requires a contradictory hearing with the arresting agency prior to a ruling on the motion by the trial court.”

B. Relief Available If, after the contradictory hearing, the court finds that the mover is entitled to the relief sought, it shall order all law enforcement agencies to expunge the record of the same. This subsection does not expressly provide for the destruction of records. 44:9 provides for the expungement (removal from public access) of arrest records in certain instances; it does not provide for the destruction of felony arrest records. See State v. Expunged Records Number 249,044, 2002-589 (La. App. 3 Cir., 12/11/02) 833 So.2d 553.

IV. Any Felony Not Prosecuted Within the Time Allowed by Law

A. Procedure The procedure to expunge any felony not prosecuted within the time allowed by law is found at 44:9(C).

1. Who May File Any person who has been arrested for the violation of a felony

2. Where to File A written motion is to be filed in the district court in the parish where the person was arrested. A contradictory hearing is required with the arresting agency only

3. Eligibility for Expungement A person is entitled to relief if the time limitation for the institution of the prosecution has expired with no prosecution ever having been instituted

B. Relief Available If, after the contradictory hearing, the court finds the mover is entitled to the relief sought, it shall order all law enforcement agencies to expunge the record of the same. This subsection does not expressly provide for the destruction of records. 44:9 provides for the expungement (removal from public access) of arrest records in certain instances; it does not provide for the destruction of felony arrest records. See State v. Expunged Records Number 249,044, 2002-589 (La. App. 3 Cir., 12/11/02) 833 So.2d 553.

C. Information that May Be Retained If expungement is ordered, the arresting agency may preserve the name and address of the person arrested and the facts of the case for investigative purposes only.

V. Felony Acquittals Obtained Pursuant to Article 893 of the Code of Criminal Procedure

A. Same as the procedure outlined above in section III, with the following exceptions:

1. The court may not order the destruction of records. It may order only the removal of records from public access. “Expungement” is defined in the statute in subsection G. as the removal of a record from public access, not the destruction of the record. 44:9 provides for the expungement (removal from public access) of arrest records in certain instances; it does not provide for the destruction of felony arrest records. See State v. Expunged Records Number 249,044, 2002-589 (La. App. 3 Cir., 12/11/02) 833 So.2d 553.

2. An expunged record is confidential, but remains available for use by law enforcement agencies, criminal justice agencies, the Louisiana State Board of Medical Examiners, the Louisiana State Board of Nursing, the Louisiana State Board of Dentistry, or the Louisiana State Board of Examiners of Psychologists.

B. Restoration of Rights Upon the entry of the order of expungement, all rights which were lost or suspended by virtue of the conviction shall be restored and the person shall be treated in all respects as not having been arrested or convicted unless otherwise provided in the statute or otherwise provided in the Code of Criminal Procedure Article 893 and 894.

VI. Misdemeanor Acquittals Obtained Pursuant to Article 894 of the Code of Criminal Procedure

A. Same as the procedure outlined above in section II, with the exception that no destruction of the record shall be ordered for any conviction for a first or second violation of any ordinance or statute making criminal the driving of a motor vehicle while under the influence of alcoholic beverages or narcotic drugs, as denounced by R.S. 14:98 or 98.1. Even considering State v. Bradley, supra, this provision most likely will be deemed constitutional since the records will be needed as a prior offense in a multiple offender prosecution, and the records will be removed from public access, with the exception of those agencies listed in subsection G of 44:9.

B. Restoration of Rights Upon the entry of the order of expungement, all rights which were lost or suspended by virtue of the conviction shall be restored and the person shall be treated in all respects as not having been arrested or convicted unless otherwise provided in this statute or otherwise provided in the Code of Criminal Procedure Article 893 and 894.

VII. Crimes That Cannot Be Expunged

Subsection 44:9(E)(2) states that no court shall order the expungement or destruction of any record of the arrest and prosecution of any person convicted of a sex offense as defined by R.S. 15:542(E), involving a child under the age of 17 years. This provision shall apply to all records of any proceedings, order, judgment, or other action under Code of Criminal Procedure Article 893. Following the equal protection analysis of State v. Bradley, supra, this provision may very well be unconstitutional if a rational basis cannot be established for treating these offenders differently.

VIII. Persons Who Cannot Move for Expungement

Subsection H of 44:9 states that a convicted felon, while in the custody of the Secretary of the Department of Public Safety and Corrections, shall have no right or standing to petition the court for expungement. Presumably, this applies regardless of whether the arrest or crime to be expunged has anything to do with the reason for incarceration.

IX. Records Held by the Department of Public Safety and Corrections

Subsection F of 44:9 states that, for investigative purposes only, the Department of Public Safety and Corrections may maintain a confidential, nonpublic record of the arrest and disposition. This information may be released, upon specific request and on a confidential basis, to any law enforcement agency, criminal justice agency, the Louisiana State Board of Medical Examiners, the Louisiana State Board of Nursing, the Louisiana State Board of Dentistry, or the Louisiana State Board of Examiners of Psychologists. Such receiving agency shall maintain the confidentiality of such record.

An order of destruction would apply, nevertheless, to the Department of Public Safety and Corrections since nothing excepts its information gathering from the expungement process outlined in 44:9. However, this provision does create a central location for information that may be accessed by the agencies specified in subsection F concerning not only convictions, but felony acquittals obtained pursuant to Article 893 of the Code of Criminal Procedure and DWI acquittals obtained pursuant to Article 894.

X. Availability of Records to Employers of Health Care Providers

Subsection 44:9(E)(4) allows a health care provider to request criminal records on potential employees, even expunged records. However, if records are destroyed, then there is no information to transmit. This also allows the employer to discover the criminal convictions of applicants since the applicants are not required to disclose their arrests or convictions. See 44:9(I).

XI. Disclosure of Expunged Arrests and Convictions

Subsection I of 44:9 states that except for the agencies listed in subsection G (the Louisiana State Board of Medical Examiners, the Louisiana State Board of Nursing, the Louisiana State Board of Dentistry, or the Louisiana State Board of Examiners of Psychologists), no person whose record of arrest or conviction has been expunged shall be required to disclose that he was arrested or convicted or that the record of such arrest or conviction has been expunged, unless otherwise provided in the statute. For most people, the effect of this provision will be that a person does not have to tell his employer or potential employer, assuming his employer is not a listed agency.

XII. Punishment for Violating 44:9

Subsection D of 44:9 states that whoever violates any provision of the statute shall be punished by a fine of not more than $250.00 or by imprisonment of not more than 90 days, or both, if the conviction is for a first violation. Second and subsequent violations shall be punished by a fine of not more than $500.00 or imprisonment of six months, or both.

For purposes of this criminal sanction, who is “whoever?” The judge that orders expungement or destruction when it is not allowed? The lawyer or client who requests more remedy than that which is allowed? The persons or agencies who do not remove from public access or destroy records in violation of a court order? The agencies who expunge the wrong records? Agencies, which are not the specified agencies of subsection G of 44:9, that require disclosure of expunged arrests or convictions?

XIII. Applicability

LSA-R.S. 44:9 does not provide for the expungement of accident records. Primas v. State, DPSC, OMV, 98 CA 0855 (La. App. 1st Cir 5/14/99), 734 So.2d 899.

A Louisiana court has no jurisdiction to expunge offenses committed in another state. Alario v. State, DPSC, 530 So.2d 1164 (La. App. 5th Cir. 1988).