Expungement Update

So I usually write one of these about once every six months or so to update on any changes to the expungement law that have occurred in the intervening time. I can’t remember the last time I wrote one, so it seems like a reasonable enough time has passed to write another.

Expungements, in Louisiana, are a method by which a person arrested for a crime (felony or misdemeanor) under certain circumstances may remove the record of that arrest from public access on his criminal record (rap sheet). Some of that language needs clarification as it applies to expungements, so here’s some terminology for you:

• Rap Sheet - this is the document maintained by the Louisiana State Police, Bureau of Criminal Identification and Information (LSP) which compiles all records of arrests throughout the State of Louisiana as well as the final dispositions of those matters.

• Disposition - how the case finally resolved, whether that be a rejection by the prosecutor’s office, dismissal, conviction, guilty plea, etc… If the case resulted in a conviction, the rap sheet will show the charge the defendant was convicted of as well as the sentence.

• Arrest record - a list of the crime for which the individual was arrested (i.e. booked into jail or issued a summons for), the date of the arrest, arresting agency, and final disposition.

In Louisiana, an expungement does not erase one’s criminal record. It does not ‘make it like it never happened.’ In Louisiana, an expungement merely orders LSP to remove that record from access by the general public. This means that the record will still exist and be accessible to certain individuals, groups, or organizations, but not to the general public. Some examples of groups who can still access the record are: law enforcement and certain state licensing agencies including the Nursing Board, Medical Board, Louisiana State Supreme Court (for purposes of bar admissions), and Insurance Board, to name a few.

Under some circumstances, a person arrested for an offense can apply for an expungement if his arrest did not result in conviction, or if he was arrested for a misdemeanor or a felony.

Expungement eligible…If not convicted:

1. if the time limits for prosecution have passed.

2. if the district attorney declined to prosecute (including if the person participated in a pre-trial diversion program unless that participation in pre-trial diversion was for a charge of Driving While Intoxicated, in which case the person will not be eligible for expungement until 5 years from the date of his arrest have passed).

3. if the person was found to be factually innocent and entitled to compensation.

…if convicted of a misdemeanor:

1. if the conviction was set aside pursuant to Article 894.

2. if 5 years have passed from completion of the sentence and the person has not been convicted of any felonies in the intervening 5 years nor has any pending felonies.

A person convicted of a misdemeanor that arose from a Sex Offense (as defined in La. R.S. 15:541), or domestic abuse battery, or stalking is not eligible for expungement.

…if convicted of a felony:

1. if the conviction is set aside pursuant to Article 893(E).

2. if 10 years have passed from completion of the sentence and the person has not been convicted of any criminal offense in the intervening 10 years nor has any pending criminal charges.

3. if the person is eligible for a first offender pardon pursuant to Article IV, §5(E)(1) of the Louisiana Constitution unless the conviction was for a crime of violence (as defined in La.R.S. 14:2) or a sex offense (as defined in La. R.S. 15:541).

Certain offenses are not eligible for expungement:

• a felony crime of violence (as defined in La. R.S. 14:2)

  • except aggravated battery, second degree battery, aggravated criminal property damage, simple robbery, purse snatching, or illegal use of a weapon only after a contradictory hearing on the motion for expungement is held.

• a Sex Offense (as defined in La.R.S. 15:541)

• certain controlled dangerous substances offenses

  • except simple possession, possession with intent to distribute, offenses set aside pursuant to Article 893(E), or offenses that carry a penalty of less than 5 years imprisonment)

• and Domestic Abuse Battery.

A person arrested for a felony but convicted of a misdemeanor may also be eligible for an interim expungement of the felony arrest under certain circumstances.

If you or someone you know is curious about their eligibility for an expungement, give us a call to set up a consult at (318) 459-9111.