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Shreveport, Louisiana  71105

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Louisiana Expungements

By Craig Smith

 

NEW EXPUNGEMENT LAWS

Louisiana Code of Criminal Procedure

(Effective August 1, 2014, Revised August 1, 2015)

 

  Art. 971.  Legislative findings
The legislature hereby finds and declares the following:
(1)  Louisiana law provides for the expungement of certain arrest and conviction records under limited circumstances.  Obtaining an expungement of these records allows for the removal of a record from public access but does not result in the destruction of the record.
(2)  An expunged record is confidential, but remains available for use by law enforcement agencies, criminal justice agencies, and other statutorily defined agencies.
(3)  Following the passage of the Maritime Transportation Security Act of 2002, all individuals who wish to work at ports or on vessels regulated by this Act are required to obtain a Transportation Worker Identification Credential (TWIC).  Obtaining a TWIC card requires a criminal history check and clearance which cannot be obtained without either a clean record or an expunged record with respect to certain offenses.
(4)  The inability to obtain an expungement can prevent certain individuals from obtaining gainful employment.
(5)  The need for employment must be balanced appropriately against the desire for public safety.  Nothing in this Title shall be construed to limit or impair in any way the subsequent use of any expunged record of arrest or conviction in any lawful manner by law enforcement, law enforcement agencies, prosecutors, or judges, including its use as a predicate offense or for the provisions of the Habitual Offender Law.
(6)  It is the intention of the legislature that this Title 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.
(7)  In balancing the legitimate needs of law enforcement agencies and the desire to afford employment opportunities to all Louisiana citizens, the Louisiana Legislature enacts the provisions of this Title within the Code of Criminal Procedure.
Acts 2014, No. 145, §1.
   
  Art. 972.  Definitions
As used in this Title:
(1)  "Expunge a record" means to remove a record of arrest or conviction, photographs, fingerprints, disposition, or any other information of any kind from public access pursuant to the provisions of this Title.  "Expunge a record" does not mean destruction of the record.
(2)  "Expungement by redaction" provides for the expungement of records of a person who is arrested or convicted with other persons who are not entitled to expungement and involves the removal of the name or any other identifying information of the person entitled to the expungement and otherwise retains the records of the incident as they relate to the other persons.
(3)  "Interim expungement" means to expunge a felony arrest from the criminal history of a person who was convicted of a misdemeanor offense arising out of the original felony arrest.  Only the original felony arrest may be expunged in an interim expungement.
(4)  "Records" includes any incident reports, photographs, fingerprints, disposition, or any other such information of any kind in relation to a single arrest event in the possession of the clerk of court, any criminal justice agency, and local and state law enforcement agencies but shall not include DNA records.
Acts 2014, No. 145, §1.
   
  Art. 973.  Effect of expunged record of arrest or conviction
A.  An expunged record of arrest or conviction shall be confidential and no longer considered to be a public record and shall not be made available to any person or other entity except for the following:
(1)  To a member of a law enforcement or criminal justice agency or prosecutor who shall request that information in writing, certifying that the request is for the purpose of investigating, prosecuting, or enforcing criminal law, for the purpose of any other statutorily defined law enforcement or administrative duties, or for the purposes of the requirements of sex offender registration and notification pursuant to the provisions of R.S. 15:540 et seq.
(2)  On order of a court of competent jurisdiction and after a contradictory hearing for good cause shown.
(3)  To the person whose record has been expunged or his counsel.
(4)  To a member of a law enforcement or criminal justice agency, prosecutor, or judge, who requests that information in writing, certifying that the request is for the purpose of defending a law enforcement, criminal justice agency, or prosecutor in a civil suit for damages resulting from wrongful arrest or other civil litigation and the expunged record is necessary to provide a proper defense.
B.  Upon written request therefor and on a confidential basis, the information contained in an expunged record may be released to the following entities that shall maintain the confidentiality of such record:  the Office of Financial Institutions, the Louisiana State Board of Medical Examiners, the Louisiana State Board of Nursing, the Louisiana State Board of Dentistry, the Louisiana State Board of Examiners of Psychologists, the Louisiana Board of Pharmacy, the Louisiana State Board of Social Work Examiners, the Emergency Medical Services Certification Commission, Louisiana Attorney Disciplinary Board, Office of Disciplinary Counsel, the Louisiana Supreme Court Committee on Bar Admissions, the Louisiana Department of Insurance, the Louisiana Licensed Professional Counselors Board of Examiners, or any person or entity requesting a record of all criminal arrests and convictions pursuant to R.S. 15:587.1, or as otherwise provided by law.
C.  Except as to those persons and other entities set forth in Paragraph A of this Article, no person whose record of arrest or conviction has been expunged shall be required to disclose to any person that he was arrested or convicted of the subject offense, or that the record of the arrest or conviction has been expunged.
D.  Any person who fails to maintain the confidentiality of records as  required by the provisions of this Article shall be subject to contempt proceedings.
E.  Nothing in this Article shall be construed to limit or impair in any way the subsequent use of any expunged record of any arrests or convictions by a law enforcement agency, criminal justice agency, or prosecutor including its use as a predicate offense, for the purposes of the Habitual Offender Law, or as otherwise authorized by law.
F.  Nothing in this Article shall be construed to limit or impair the authority of a law enforcement official to use an expunged record of any arrests or convictions in conducting an investigation to ascertain or confirm the qualifications of any person for any privilege or license as required or authorized by law.
G.  Nothing in this Article shall be construed to limit or impair in any way the subsequent use of any expunged record of any arrests or convictions by a "news-gathering organization". For the purposes of this Title, "news-gathering organization" means all of the following:
(1)  A newspaper, or news publication, printed or electronic, of current news and intelligence of varied, broad, and general public interest, having been published for a minimum of one year and that can provide documentation of membership in a statewide or national press association, as represented by an employee thereof who can provide documentation of his employment with the newspaper, wire service, or news publication.
(2)  A radio broadcast station, television broadcast station, cable television operator, or wire service as represented by an employee thereof who can provide documentation of  his employment.
H.  Nothing in this Article shall be construed to relieve a person who is required to register and provide notice as a child predator or sex offender of any obligations and responsibilities provided in R.S. 15:541 et seq.
Acts 2014, No. 145, §1.
   
  Art. 974.  Dissemination of expunged records by third parties; court order
A.  A private third-party entity, excluding a news-gathering organization, that compiles and disseminates criminal history information for compensation shall not disseminate any information in its possession regarding an arrest, conviction, or other disposition after it has received notice of an issuance of a court order to expunge the record of any such arrest or conviction.  The provisions of this Paragraph shall not apply to private third-party entities which are regulated by the Fair Credit Reporting Act (15 U.S.C. §1681 et seq.) or the Gramm-Leach-Bliley Act (15 U.S.C. §6801-6809).
B.  The person obtaining the expungement shall send notice of the order of expungement by certified or registered mail with return receipt requested and a certified copy of the order of expungement.
C.  A private third-party entity that publicly disseminates criminal history information in violation of this Article after having received notice as provided for in Paragraph B of this Article, may be liable for any actual damages, court costs, and attorney fees that are incurred by the person whose criminal history was disseminated.
Acts 2014, No. 145, §1.
   
  Art. 975.  Individuals incarcerated; ineligible to file motion to expunge records
Notwithstanding any other provision of law to the contrary, a person in the custody of the Department of Public Safety and Corrections, or incarcerated in any correctional facility shall not be permitted to file a motion to expunge a record of an arrest which did not result in a conviction or to expunge a record of an arrest and conviction of a misdemeanor or felony offense.
Acts 2014, No. 145, §1.
   
 

Art. 976. Motion to expunge record of arrest that did not result in a conviction

A. A person may file a motion to expunge a record of his arrest for a felony or misdemeanor offense that did not result in a conviction if any of the following apply:

(1) The person was not prosecuted for the offense for which he was arrested, and the limitations on the institution of prosecution have barred the prosecution for that offense.

(2) The district attorney for any reason declined to prosecute any offense arising out of that arrest.

(3) Prosecution was instituted and such proceedings have been finally disposed of by dismissal, sustaining of a motion to quash, or acquittal.

B. Pursuant to R.S. 15:578.1, no person arrested for a violation of R.S. 14:98 (operating a vehicle while intoxicated) or a parish or municipal ordinance that prohibits operating a vehicle while intoxicated, impaired, or while under the influence of alcohol, drugs, or any controlled dangerous substance, and placed by the prosecuting authority into a pretrial diversion program, shall be entitled to an expungement of the record until five years have elapsed since the date of arrest for that offense.

C. The motion to expunge a record of arrest that did not result in a conviction of a misdemeanor or felony offense shall be served pursuant to the provisions of Article 979.

Acts 2014, No. 145, §1; Acts 2015, No. 200, §1.

 

 

 

Art. 977. Motion to expunge a record of arrest and conviction of a misdemeanor offense

A. A person may file a motion to expunge his record of arrest and conviction of a misdemeanor offense if either of the following apply:

(1) The conviction was set aside and the prosecution was dismissed pursuant to Article 894(B) of this Code.

(2) More than five years have elapsed since the person completed any sentence, deferred adjudication, or period of probation or parole, and the person has not been convicted of any felony offense during the five-year period, and has no felony charge pending against him. The motion filed pursuant to this Subparagraph shall include a certification obtained from the district attorney which verifies that to his knowledge the applicant has no felony convictions during the five-year period and no pending felony charges under a bill of information or indictment.

B. The motion to expunge a record of arrest and conviction of a misdemeanor offense shall be served pursuant to the provisions of Article 979 of this Code. C. No person shall be entitled to expungement of a record under any of the following circumstances:

(1) The misdemeanor conviction arose from circumstances involving or is the result of an arrest for a sex offense as defined in R.S. 15:541, except that an interim expungement shall be available as authorized by the provisions of Article 985.1 of this Code.

(2) The misdemeanor conviction was for domestic abuse battery. (

3) The misdemeanor conviction was for stalking (R.S. 14:40.2).

D.(1) Expungement of a record of arrest and conviction of a misdemeanor offense shall occur only once with respect to any person during a five-year period, unless the person was sentenced pursuant to Article 894(B) of this Code.

(2) Expungement of a record of arrest and conviction of a misdemeanor offense of operating a vehicle while intoxicated shall occur only once with respect to any person during a ten-year period. Acts 2014, No. 145, §1; Acts 2015, No. 151, §1, eff. June 23, 2015; Acts 2015, No. 200, §1.

   
 

Art. 978. Motion to expunge record of arrest and conviction of a felony offense

 A. Except as provided in Paragraph B of this Article, a person may file a motion to expunge his record of arrest and conviction of a felony offense if either of the following apply:

(1) The conviction was set aside and the prosecution was dismissed pursuant to Article 893(E) of this Code.

(2) More than ten years have elapsed since the person completed any sentence, deferred adjudication, or period of probation or parole based on the felony conviction, and the person has not been convicted of any other criminal offense during the ten-year period, and has no criminal charge pending against him. The motion filed pursuant to this Subparagraph shall include a certification obtained from the district attorney which verifies that, to his knowledge, the applicant has no convictions during the ten-year period and no pending charges under a bill of information or indictment.

B. No expungement shall be granted nor shall a person be permitted to file a motion to expunge the record of arrest and conviction of a felony offense if the person was convicted of the commission or attempted commission of any of the following offenses:

(1) A crime of violence as defined by or enumerated in R.S. 14:2(B).

(2)(a) Notwithstanding any provision of Article 893 of this Code, a sex offense or a criminal offense against a victim who is a minor as each term is defined by R.S. 15:541, or any offense which occurred prior to June 18, 1992, that would be defined as a sex offense or a criminal offense against a victim who is a minor had it occurred on or after June 18, 1992.

(b) Any person who was convicted of carnal knowledge of a juvenile (R.S. 14:80) prior to August 15, 2001, is eligible for an expungement pursuant to the provisions of this Title if the offense for which the offender was convicted would be defined as misdemeanor carnal knowledge of a juvenile (R.S. 14:80.1) had the offender been convicted on or after August 15, 2001. The burden is on the mover to establish that the elements of the offense of conviction are equivalent to the current definition of misdemeanor carnal knowledge of a juvenile as defined by R.S. 14:80.1. A copy of the order waiving the sex offender registration and notification requirements issued pursuant to the provisions of R.S. 15:542(F) shall be sufficient to meet this burden.

(3) A violation of the Uniform Controlled Dangerous Substances Law, except for any of the following which may be expunged pursuant to the provisions of this Title:

(a) A conviction for possession of a controlled dangerous substance as provided for in R.S. 40:966(C), 967(C), 968(C), or 969(C), or 970(C).

(b) A conviction for possession of a controlled dangerous substance with the intent to distribute.

(c) A conviction for a violation of the Uniform Controlled Dangerous Substances Law which is punishable by a term of imprisonment of not more than five years.

(d) A conviction for a violation of the Uniform Controlled Dangerous Substances Law which may be expunged pursuant to Article 893(E).

(4) The conviction was for domestic abuse battery.

C. The motion to expunge a record of arrest and conviction of a felony offense shall be served pursuant to the provisions of Article 979 of this Code.

D. Expungement of a record of arrest and conviction of a felony offense shall occur only once with respect to any person during a fifteen-year period.

Acts 2014, No. 145, §1; Acts 2015, No. 151, §1, eff. June 23, 2015; Acts 2015, No. 200, §1.

 

 

 

Art. 979. Service of motion to expunge a record

A. The clerk of court shall serve notice of the motion of expungement by United States mail or electronically upon the following entities:

(1) The district attorney of the parish of conviction.

(2) The Louisiana Bureau of Criminal Identification and Information.

(3) The arresting law enforcement agency.

B. When service is made by United States mail, a certificate of service shall be filed into the record indicating the date the motion was placed in the United States mail for service.

Acts 2014, No. 145, §1; Acts 2015, No. 200, §1.

 

 

 

Art. 980. Contradictory hearing

A. Any entity named in Article 979 of this Code that receives notice of the motion may object to the granting of a motion to expunge a record.

B.(1) Except as provided in Subparagraph (2) of this Paragraph, an objecting party shall file an affidavit of response with reasons for the objection in the record with service to the defendant within sixty days from the date of service of the motion and specifically state the grounds for the objection.

(2) If the Louisiana Bureau of Criminal Identification and Information objects to the granting of the motion to expunge a record, it shall file an affidavit of response with reasons for the objection in the record with service to the defendant within one hundred and twenty days from the date of the service of the motion until August 1, 2015. On August 1, 2015, and thereafter, if the Louisiana Bureau of Criminal Identification and Information objects to the granting of the motion to expunge a record, it shall file an affidavit of response with reasons for the objection in the record with service to the defendant within sixty days from the date of the service of the motion.

C. The court may grant an extension of time to file an objection not to exceed thirty days from the expiration of the original sixty days for a party to object.

D. Any objection timely filed shall have a contradictory hearing. If an objection is timely filed, the district attorney or an objecting party shall request that the matter be set for a contradictory hearing. A notice of hearing shall be served on the defendant and those persons provided for in Article 979 of this Code.

E. The objecting agency must show by a preponderance of the evidence why the motion of expungement should not be granted.

F. If no objection is filed by an agency listed under Article 979 of this Code, the defendant may waive the contradictory hearing, and the court shall grant the motion to expunge the record if the court determines that the mover is entitled to the expungement in accordance with law.

G. Any agency listed under Article 979 of this Code may expressly waive its time period to object by filing a formal "No Opposition" into the record.

Acts 2014, No. 145, §1; Acts 2015, No. 200, §1.

 

 

 

Art. 981.  Judgment granting motion to expunge a record of arrest or conviction; execution

A judgment ordering expungement of  a record of arrest or of conviction of a misdemeanor or felony offense shall be served as provided for in Code of Criminal Procedure Article 982.  The judgment shall not affect any persons or other entities set forth in Code of Criminal Procedure Article 979 or 982 who have not been served with the motion and judgment ordering the expungement of a record.

Acts 2014, No. 145, §1.

 

 

 

Art.  982.  Service of order and judgment of expungement

The clerk of court shall serve the order and judgment of expungement of a record by United States mail or electronically upon all of the following entities:

(1)  The district attorney of the parish of conviction.

(2)  The Louisiana Bureau of Criminal Identification and Information.

(3)  The sheriff of the parish of conviction.

(4)  The arresting agency.

Acts 2014, No. 145, §1.

 

 

 

Art. 983.  Costs of expungement of a record; fees; collection; exemptions; disbursements

A.  Except as provided for in Articles 894 and 984 of this Code, the total cost to obtain a court order expunging a record shall not exceed five hundred fifty dollars.

B.  The nonrefundable processing fees for a court order expunging a record shall be as follows:

(1)  The Louisiana Bureau of Criminal Identification and Information may charge a processing fee of two hundred fifty dollars for the expungement of any record of arrest when ordered to do so by the court in compliance with the provisions of this Title.

(2)  The sheriff may charge a processing fee of fifty dollars for the expungement of any record of arrest when ordered to do so by the court in compliance with the provisions of this Title.

(3)  The district attorney may charge a processing fee of fifty dollars for the expungement of any record of arrest when ordered to do so by the court in compliance with the provisions of this Title.

(4)  The clerk of court may charge a processing fee not to exceed two hundred dollars to cover the clerk's costs of the expungement.

C.  The clerk of court shall collect all processing fees at the time the motion for expungement is filed.

D.(1)  The clerk shall immediately direct the collected processing fee provided for in Subparagraph (B)(1) of this Article to the Louisiana Bureau of Criminal Identification and Information, and the processing fee amount shall be deposited immediately upon receipt into the Criminal Identification and Information Fund.

(2)  The clerk shall immediately direct the collected processing fees provided for in Subparagraphs (B)(2) and (3) of this Article to the sheriff and the district attorney, and the processing fee amount shall be remitted immediately upon receipt in equal proportions to the office of the district attorney and the sheriff's general fund.

E.  The processing fees provided for by this Article are nonrefundable and shall not be returned even if the court does not grant the motion for expungement.

F.  An applicant for the expungement of a record shall not be required to pay any fee to the clerk of court, the Louisiana Bureau of Criminal Identification and Information, sheriff, the district attorney, or any other agency to obtain or execute an order of a court of competent jurisdiction to expunge the arrest from the individual's arrest record if a certification obtained from the district attorney is presented to the clerk of court which verifies that the applicant has no felony convictions and no pending felony charges under a bill of information or indictment and at least one of the following applies:

(1)  The applicant was acquitted, after trial, of all charges derived from the arrest, including any lesser and included offense.

(2)  The district attorney consents, and the case against the applicant was dismissed or the district attorney declined to prosecute the case prior to the time limitations prescribed in Chapter 1 of Title XVII of the Code of Criminal Procedure, and the applicant did not participate in a pretrial diversion program.

(3)  The applicant was arrested and was not prosecuted within the time limitations prescribed in Chapter 1 of Title XVII of the Code of Criminal Procedure and did not participate in a pretrial diversion program.

(4)  The applicant was determined to be factually innocent and entitled to compensation for a wrongful conviction pursuant to the provisions of R.S. 15:572.8.

G.  Notwithstanding any other provision of law to the contrary, a juvenile who has successfully completed any juvenile drug court program operated by a court of this state shall be exempt from payment of the processing fees otherwise authorized by this Article.

Acts 2014, No. 145, §1.

   
 

Art. 984. Additional requirements for the expungement of records involving the operation of a vehicle while intoxicated; additional fee

A. A person convicted of operating a vehicle while intoxicated shall be required to supplement the motions required in this Title with proof in the form of a certified letter from the Department of Public Safety and Corrections, office of motor vehicles, that the person has complied with the requirements of this Article. The certified letter shall be attached to the motion to expunge the record of arrest and conviction for operating a vehicle while intoxicated.

B. The court shall order the clerk of court to mail to the Department of Public Safety and Corrections, office of motor vehicles, all of the following as provided by the defendant:

(1) A certified copy of the record of the plea of guilty or nolo contendere.

(2) Fingerprints of the defendant.

(3) Proof that the defendant meets the requirements as set forth in Article 556 or 556.1 of this Code which shall include the defendant's date of birth, social security number, and driver's license number.

C. An additional fifty-dollar court cost shall be assessed at this time against the defendant and paid to the Department of Public Safety and Corrections, office of motor vehicles, for the costs of storage and retrieval of the records. The court cost provided by this Paragraph shall be submitted to the department regardless of whether the clerk of court is submitting this matter to the department pursuant to Paragraph B or D of this Article.

D. In lieu of forwarding the items listed in Paragraph B of this Article, the clerk of court may send a copy of the letter issued by the department pursuant to Subparagraph (B)(1) of Article 894 if the clerk had previously submitted records of the plea to the department pursuant to that Article.

Acts 2014, No. 145, §1; Acts 2015, No. 200, §1.

 

 

 

Art. 985.  Expungement by redaction of records with references to multiple individuals

A.  If a record includes the name of more than one individual and one or more of the individuals is entitled to an expungement of an arrest or conviction pursuant to the provisions of this Title, any individual entitled to an expungement may petition the court to have records related to the arrest or conviction of the individual expunged by redaction.

B.  If the court grants the expungement by redaction, the name of the individual and all other identifying information regarding the individual granted the expungement by redaction shall be redacted from all records regarding the arrest and conviction.  The redacted records shall be available for public access.

C.  The clerk of court shall not be liable for any damages resulting to any person or entity as a consequence of expunging or redacting or for the failure to expunge or redact any record where the expungement order does not specifically identify all locations of the records to be expunged or specify the information to be redacted.

Acts 2014, No. 145, §1.

   
 

Art. 985.1.  Interim motion to expunge a felony arrest from criminal history in certain cases resulting in a misdemeanor conviction

A.  A person may file an interim motion to expunge a felony arrest from his criminal history when that original arrest results in a conviction for a misdemeanor.  In such cases, only the original felony arrest may be expunged.

B.  The 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.

C.  Except as provided in Paragraph D of this Article, an interim motion to expunge a felony arrest from criminal history shall follow the same procedures and fees established pursuant to the provisions of Article 979 et seq of this Code.

D.  An interim motion to expunge shall not be subject to the time limitations provided for in Articles 977(A)(2) or 978(A)(2) of this Code, and there shall be no restriction on the number of interim expungements which may be granted.

Acts 2014, No. 145, §1.

 

The Following is the prior law on expungements that was in effect until July 31, 2014.

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 Louisiana expungement process and remedy allowed by law 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. DWIs 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.

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. 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 (law enforcement agencies, criminal justice agencies, the Office of Financial Institutions, the Louisiana State Board of Medical Examiners, the Louisiana State Board of Nursing, the Louisiana State Board of Dentistry, the Louisiana State Board of Examiners of Psychologists, the Louisiana Board of Pharmacy, the Louisiana State Board of Social Work Examiners, the Emergency Medical Services Certification Commission, the Louisiana Attorney Disciplinary Board, Office of Disciplinary Counsel, the Louisiana Supreme Court Committee on Bar Admissions, the Louisiana Department of Insurance, the Louisiana Licensed Professional Counselors Board of Examiners, or any person or entity requesting a record of all criminal arrests and convictions pursuant to R.S. 15:587.1 which deal with positions that supervise children), 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 subsection G 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).

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We handle expungements throughout North Louisiana in the following cities and parishes: Shreveport, Caddo Parish, Bossier City, Bossier Parish, Minden, Webster Parish, Arcadia, Bienville Parish, Ruston, Lincoln Parish, Monroe, Ouachita Parish, Coushatta, Red River Parish, Springhill, Webster Parish, Vivian, Caddo Parish, Homer, Claiborne Parish, Mansfield, DeSoto Parish, Many, Sabine Parish, Jackson Parish.  If a city or parish is not listed that involves your matter, please call us to see if we may be able to assist you in that area.

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