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The Louisiana Revised Statute Title 44 Section 9 sets forth the guidelines and rules that regulate motions for the expungement of arrest and/or conviction records which are public information and maintained by law enforcement and criminal justice agencies. Furthermore, it establishes which defendants may obtain the expungement or destruction of what arrest and/or conviction records, when and under what circumstances pursuant to the Public Records Law.
Expungement means the confidential removal of an arrest and/or conviction record from public access. La. R.S. 44:G. Although arrest records are accessible to the public, they may be expunged pursuant to the order of the court upon the defendant's motion. However, this does not mean that such record will be destroyed. The word "expungement" is distinct from the word "destruction." State v. Savoie, 637 So.2d 408 (La. 1994). The two words cannot be used interchangeably or to mean the same thing. Id. At 410. The general rule sets forth that an expunged record is confidential as to the public. Thus, to have an arrest and/or conviction record expunged simply means to have it inaccessible for the public's review. Therefore, public records which may be expunged need not be destroyed. Id.
The purpose of the expungement provisions in the public records law is to allow citizens to avoid embarrassment and harassment generated by a public criminal record that had not been timely prosecuted or that has been dismissed. State v. Sims, 357 So.2d 1095 (La. 1978). Consequently, there is no mention of a limitation placed on the number of expungements that a defendant may seek. It can be reasoned that no such limitation is necessary due to the fact that contradictory hearings are usually held upon the motion of an expungement and because the court ultimately has the discretion in deciding whether to grant such a request.
An expungement removes specific records from public access. However, only the public will be forbidden from obtaining information regarding arrests; all law enforcement agencies will maintain confidential, non-public access to these records. Therefore, an expungement does not affect the collection and processing of criminal history record information by the Louisiana Department of Public Safety & Corrections or the Louisiana Bureau of Criminal Identification Information, nor does it affect the non-public dissemination of such information to any court, criminal justice agency or law enforcement agency involved in the detection, investigation, apprehension, prosecution, sentencing, confinement, release, or rehabilitation of criminal offenders. Savoie, at 411. Thus, section F of La. R.S. 44:9 allows the Department of Public Safety & Corrections to maintain records for such investigative purposes only. The information contained in such records may be released upon specific request and on a confidential basis to:
Although these enumerated parties are entitled to receive expunged records, they must maintain the confidentiality of such records. Additionally, information regarding a criminal background check requested by a health care provider pursuant to La. R.S. 40:1300.51, et seq., will be released and include records which would inform a potential employer of any crimes enumerated in said statute committed by an applicant for employment. La. R.S. 44:9 E(4).
V.
Defendants Who are Entitled To Make Expungement Requests ARREST RECORD Defendants that PLEAD "NOT GUILTY" may seek to have an expungement of the arrest record if:
The preceding establishes the general rule that the law only permits arrest records to be expunged, not convictions. CONVICTION RECORD The exception to the general rule is that a conviction may be expunged whenever there is an 893 dismissal of a felony conviction or an C.Cr.P. Art. 894 dismissal of a misdemeanor conviction. Defendants that PLEAD "GUILTY" to the charges and thus are found guilty and convicted are not entitled to petition the court for an expungement of the arrest and conviction record unless there is an:
Therefore, a defendant that PLEADS "GUILTY" is not entitled to an expungement request in the absence of an 893 or 894 dismissal. However, if such a defendant wishes to seek an expungement of a conviction in which there was not dismissal, he would be advised to first obtain an attorney and seek an 893 or 894 dismissal of the conviction in order to be entitled to make an expungement request. Thus, La. R.S. 44:9 should not be construed as prohibiting a convicted felon from seeking an expungement of his arrest and/or conviction records. The statute does not state that a citizen's status as a convicted felon deprives him of the expungement benefit if he satisfies the other applicable statutory requirements for expungement. Savoie, at 410. However, a convicted felon while in the custody of the Secretary of the Department of Public Safety & Corrections shall have no right or standing to petition the court for expungement. La. R.S. 44:9 H.
ARREST RECORD Defendants that PLEAD "NOT GUILTY" may seek to have an expungement of the arrest record as soon as their case receives a final judgment. State v. Savoie sets forth that as long as there is a dismissal or declination to prosecute, then the defendant may make a motion for expungement even if there is no prescription period for the offense, i.e., the case can be reopened and the defendant brought back up on the charges. The court in Savoie reasoned that an expungement does not prevent the district attorney from reinstating prosecution within the prescriptive period. It was further concluded that an expungement of an arrest will not have any effect on the district attorney's right to prosecute and, thus, will not cause any detriment or prejudice to the district attorney. CONVICTION RECORD However, there is a delay period for defendants that PLEAD "GUILTY" to the charges or were found guilty, convicted and received an 893 or 894 dismissal of the conviction. Such defendants may only petition the court for an expungement of the arrest and conviction record one year after the dismissal was granted.
There
are certain circumstances under which a defendant may petition the
court for an expungement, which is dependent upon the charges that
are billed by the district attorney. Therefore, the following discussion
will set forth such circumstances as relating to misdemeanor and
felony arrest charges. MISDEMEANOR: A person who has been arrested for violating a municipal or parish ordinance or a state statute classified as a misdemeanor may make a written motion to the district, parish or city court in which the violation was prosecuted or the district court located in the parish of arrest for expungement of the arrest record if:
FELONY WITH PROSECUTION INITIATED: A person arrested for violating a felony offense or R.S. 14:34.2, R.S. 14:34.3, or R.S. 14:37 may make a written motion to the district court located in the parish of arrest for the expungement of the arrest record if:
In this situation, the judge shall order a contradictory hearing to be held with the district attorney and the arresting law enforcement agency in which the court shall decide whether the defendant is entitled to the granting of an order of expungement. FELONY WITHOUT PROSECUTION INITIATED: A person arrested for violating a state statute classified as a felony may make a written motion to the district court located in the parish of arrest for expungement of the arrest record if:
In this situation, the judge shall order a contradictory hearing to be held with the arresting law enforcement agency in which the court shall decide whether the defendant is entitled to the granting of an order of expungement.
A person arrested for violating a misdemeanor or felony offense may make a written motion to the appropriate court if:
* * * * * IS A CONTRADICTORY HEARING ALWAYS REQUIRED? Judges have the discretionary authority in determining whether a contradictory hearing shall be held. State v. Westfall, 708 So.2d 1053 (La. 1998) sets forth the alternative to the in-court contradictory hearing requirement in the expungement process if the court chooses to use it. It states as follows: "As an alternative to summoning all concerned parties to a contradictory hearing conducted in open court, the district court shall first provide the district attorney and arresting agency with the opportunity to respond in writing to the movant's motion, either conceding to entitlement of expungement and waiving the contradictory hearing or specifically deny the allegations. The court shall then provide the movant with the opportunity to file a written response to any opposition. If there are no factual disputes which the presence of the parties in an open-court contradictory hearing may help resolve, then the district court may conduct the hearing on the pleadings and any supporting affidavits."
According to La. R.S. 44:9 E(2), the only arrest and conviction records that are not entitled to consideration for expungement is a charge of a sex offense involving a child under 17 years of age. Otherwise, all other charges may e considered upon an expungement request submitted by a motioning defendant.
IX. Records that May Be Destroyed: Whenever there is a misdemeanor or felony charge which is never pursued or abandoned with no record of conviction AND is no longer viable, then the record of the charges must be both expunged and destroyed as if it never existed. Savoie, 637 So.2d 408, 410. However, the court cannot order destruction of a record for a person convicted of a felony, even if dismissed by La. Cr.C.P. Article 893. Such a record may only be expunged after a contradictory hearing with the district attorney and arresting agency. The court in Savoie concluded that R.S. 44:9 should not be construed as a basis for destroying the arrest records of a convicted felon. Id. at 410. In contrast, the court is permitted to order both the destruction and expungement of a misdemeanor conviction dismissed pursuant to La. Cr.C.P. Article 894. However, not all misdemeanor convictions are entitled to be destroyed. According to La. R.S. 44:9 E(3), the court cannot destroy the record of a conviction of a 1st or 2nd violation of DWI. This misdemeanor offense is only entitled to an expungement. Moreover, such an offense may be of subject in the prosecution and sentencing of criminal offenders regarding 3rd and 4th felony violation of the DWI statute.
Prior to 1996, any criminal court of record in which there was a nolle prosequi, an acquittal or dismissal of any offense, misdemeanor or felony, would at the time of the discharge of the defendant, enter an order to annul, cancel, or rescind the record of arrest and disposition and then further order the destruction of such record. However, the courts no longer have the authority to order an automatic destruction of a record. Moreover, the automatic first offender felony pardon does not erase the fact of conviction for purposes of LSA R.S. 44:9 or LSA C.Cr.P. Art. 893. Thus, the 1996 amendment enacted a new law requiring all defendants to petition the court for the expungement of arrest and conviction records. Therefore, defendants are required to file a separate motion of expungement for each arrest whenever there is more than one arrest to be expunged. There must be a separate motion of expungement submitted for each arrest or conviction record that the defendant wishes to have expunged - not a separate motion for every charge.
Although an attorney is not required to assist a defendant in motioning for an expungement, it is suggested that the defendant obtain counsel to handle such a matter due to the perplexity surrounding the process. Consequently, each court system is different in processing motions for expungement, the following discussion will set forth the basic procedure and instructions of each court system.
The office which processes expungement requests under this court system is the Criminal Records Department of Doug Welborn's Clerk of Court Office of the East Baton Rouge Parish 19th Judicial District Court located in the basement level (B1) of the District Court building. For more information, contact the Supervisor of the Criminal Records Department, P.O. Box 1991, Baton Rouge, Louisiana 70821-1991, (225) 389-3964. 1. Pre-printed expungement forms are not provided by this court system. The motion for expungement must be drawn-up in type-written numbered paragraph form on legal size paper which must include the defendant's:
2. Recapping the downloadable forms (above) there are several fees associated with the expungement that you will be required to pay. There is a $110.00 processing fee that must be paid in order for the Clerk of Court's Office to process the order of expungement granted by the judge, which is used for service of documents on various agencies. This fee should be made payable to: DOUG WELBORN, CLERK OF COURT. There is also a fee due to the BUREAU OF CRIMINAL IDENTIFICATION in the amount of $125.00. There is also a processing fee of $125.00 due to the EAST BATON ROUGE DISTRICT ATTORNEY'S OFFICE. These fees will be accepted ONLY in the form of CERTIFIED CHECK OR MONEY ORDER (personal checks will not be accepted). You MUST HAVE THREE SEPARATE CERTIFIED CHECKS OR MONEY ORDER. The total amount due when you file one expungement is $360.00 If the expungement request is denied or dismissed, the defendant will NOT be refunded the $110.00 Clerk of Court fee or the $125.00 District Attorney's fee. If the expungement is NOT granted, the $125.00 Bureau of Criminal Identification fee will be refunded. Indigent or pauper applications may be filled to cover filing cost. 3. Once a defendant's request for expungement is granted, the entire process (actual expungement by all agencies) will take from 6 months to 1 year. The defendant will be notified by mail from the clerk of court's office that the various agencies have expunged their records once such information is received by the clerk's office. However, the notice should stipulate that an additional 8 weeks will be required for the FBI to expunge their records from the National Criminal Identification Center (NCIC). 4. The length of time for the arresting agency and other record agencies is much too long. Sometimes, employment opportunities exist or other reasons require a more timely expungement. In this case, you should personally contact the agency directly and seek expedited action. In the event this fails, a rule to show cause should be filed with the District Court seeking why its order has not and should not be immediately carried out.
The office that processes expungement requests under this court system is the East Baton Rouge Parish City Court Records Department located in the basement of the city court building. The contact person in this office is Debra Green, Supervisor of City Court Records Department, 223 Saint Louis Street, Baton Rouge, Louisiana 70802, (225) 389-8388. 1. Pre-printed forms are provided by this office in which a defendant shall petition the court with a request for expungement. Therefore, it is preferred that such forms be utilized in making a motion for expungement. The form is to be completed by including the defendant's:
2. The cost to process the expungement request in City Court is $225.00. 3. Once the request is granted or denied, City Court Records Department will notify the movant of such information. If the motion is granted, then the entire process will take 6 weeks to 6 months, depending upon the type of expungement. The notice will stipulate that it will take an additional 8 weeks for the FBI to expunge their records from the NCIC.
This court handles only misdemeanor charges, i.e., misdemeanor AND TRAFFIC arrests or summons issued by the Baton Rouge City Police Department or Animal Control Center and misdemeanor convictions adjudicated by Baton Rouge City Court.
** NOTE: In City Court, there are NO LONGER automatic expungements of arrests and/or convictions whenever first time offenders complete the Pre-Trial Service. Now you must file a motion. Download the applicable Baton Rouge City Court Expungement form depending upon your circumstances (i.e. expungement of an arrest, a DWI, or summons):
If the court finds that the mover is entitled to the relief sought, it shall order all agencies and law enforcement offices having any record of the arrest, whether on microfilm, computer card or tape, or on any other 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. The court shall order such custodian of record 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 this affidavit shall be kept by the ordering court and a copy shall be retained by the affiant agency which shall not be a public record nor open to the public inspection, but shall be kept under lock and key and maintained only for the internal record keeping purposes to preserve the agency's files and shall not be used for any investigative purpose.
As standard procedure in processing expungement requests, each served agency must conduct research as ordered by the court. The following discussion will list each possible agency and give a brief statement of how expungement orders are processed in their office. * * * * *
Contact Person: Supervisor of Criminal Records
Once
this department receives the court's order, it will fir4st check
to find out if they are in fact an applicable agency by conducting
research on its old and new criminal history system, two criminal
data base systems and its "LACH" system. If they don't
find any information on the defendant, they will make the return
to the proper court.
Contact Person: Supervisor of Criminal Records
Once
this department receives the court's order to expunge the defendant's
records, it will first forward a copy of the order to its Criminal
Identification Division which will remove the rap sheet and then
forward another copy of the order to its Jail System Division which
will remove the defendant's information from the computer and booking
system. The criminal records department will then remove all incident
and arrest reports and all documents relating to any arrests.
Contact Person: Expungement Department
This
department handles expungement requests that arrive from every court
in the state as well as out-of-state. Thus, their volume of expungement
requests is high and there are only two processors within this department.
Contact Person: Supervisor of Criminal Records
Once
this department receives the court order of expungement, it will
remove the records from its computer system, microfilm system, and
its filing system. Pursuant to the order, the department will either
destroy (or shred) the records or maintain a hardcopy of the information
and store in a confidential filing system.
Contact Person: Supervisor of Criminal Records
Once
this department receives the court's order to expunge, it will pull
the pertinent arrest reports from the active files and clear the
information from its computer system. However, the computer system
will maintain the file number for record keeping purposes; the computer
will not divulge any information since the record cannot be obtained
without the defendant's name or social security number.
Contact Person: Supervisor of Criminal Record Once
the department receives an order to expunge, it will remove the
pertinent records from the active filing system into a non-active
file room.
DISTRICT COURT This court system advises defendants that all expungement requests take approximately 6 months to 1 year to complete. This long delay is not due to the Court system. The delay is caused by the agency ordered to expunge due to back log. CITY COURT The expungement of a summons is processed quickly at an approximate time period of 6 weeks. However, the expungement of an arrest and/or conviction record may take 6 months to a year.
DISTRICT COURT Should a defendant need to research his arrest record in District Court, the Clerk of Court Criminal Records office will conduct such research for a fee of $20.00 per name or allow the defendant's counsel to conduct the research free of charge. CITY COURT To find an account of an arrest record in City Court, defendants are to have a records check performed at the Baton Rouge City Police Criminal Records Department for a $20.00 fee. * * * * * However, in addition to the above, to obtain a thorough account of arrest and conviction records, one should contact the East Baton Rouge Parish Prison Sheriff's Department for a copy of the complete criminal rap sheet. Such information will be provided for a $10.00 fee.
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Instructions