Louisiana Code of Criminal Procedure Article 976 states that a person may file for an expungement of a felony or misdemeanor offense that did not result in a conviction in the following circumstances:

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, including the reason that the person successfully completed a pretrial diversion program.

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

4. Th person was judicially determined to be factually innocent and entitled to compensation of ra wrongful condition pursuant to the provisions of R.S. 15:572.8.

La. C.Cr.P. Art. 976(A).

But wait! There is an exception: no person who has participated in a pretrial diversion program for a charge of Driving While Intoxicated may expunge his arrest until 5 years have passed from the date of his arrest. La. C.Cr.P. Art. 976(B).

If you or someone you know would like to schedule a consultation about expungements, give us a call at (318) 459-9111.

For the next four weeks, we’ll be covering expungement basics and details under Louisiana law.

To start: what is an expungement? Louisiana Code of Criminal Procedure Article 972 defines “expunge a record” as “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.” La. C.Cr.P. Art. 972(A)(1).

So what does an expungement do?

“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…” La. C.Cr.P. Art. 973(A).

But, like so many things in the law, there are exceptions. An expunged record can be disclosed:

(1) To a member of a law enforcement or criminal justice agency 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 proseucutor 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.

La C.Cr.P. Art. 973(A).

Additional exceptions are for various state agencies which may request the expunged records in writing:

• 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,

• the Louisiana State Board of Chiropractic 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.”

La C.Cr.P. Art. 973(B).

A person whose record has been expunged cannot be required to disclose the expunged arrest or conviction or that it has been expunged, except to those organizations listed in Subpart (A). La. C.Cr.P. Art. 973(C).

Lastly this week, what is an expungement going to cost?

Louisiana Code of Criminal Procedure establishes a limit of $550 in fees that can be charged by the Court for processing an expungement. Those are broken down as follows: The Louisiana Bureau of Criminal Identification and Information may charge a processing fee of $250; the Sheriff may charge a processing fee of $50; the District Attorney may charge a processing fee of $50; and the Clerk of Court may charge a processing fee of $200. La C.Cr.P. Art. 983(A) & (B). If the individual applying for an expungement may obtain a fee waiver if she has (1) no felony convictions, (2) no pending felony charges, and at least one of the following:

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 was dismissed or the district attorney declined to prosecute (unless the applicant participated in pre-trial diversion);

3. The applicant was arrested and not prosecuted within the time limitations and did not participate in a pretrial diversion program; or

4. The applicant was determined to be a victim of certain crimes of identity theft.

La C.Cr.P. Art. 983(F). An applicant is also exempt from filing fees if he was determined to be factually innocent and entitled to compensation pursuant to La. R.S. 15:578 or if he has been granted a pardon (not a first offender pardon). La. C.Cr.P. Art. 983(I) & (J).

Finally, the fees are reduced for those applying for expungement pursuant to the special first offense marijuana provision to $300. La C.Cr.P. Art. 983(M).

If you or someone you know would like to schedule a consultation about expungements, give us a call at (318) 459-9111.

As of August 1, 2023, the Louisiana Legislature has created a special provision for expunging first offense misdemeanor possession of marijuana convictions:

D. Notwithstanding any provision of law to the contrary, a person may file a motion to expunge his record of arrest and conviction of a misdemeanor conviction for a first offense possession of marijuana, tetrahydrocannabinol, or chemical derivatives thereof after ninety days from the date of conviction.

Louisiana Code of Criminal Procedure Article 977(D).

The fees for filing this expungement are slightly less than a regular expungement. La CCrP Art. 983(M).

This special provision will cease to be available to citizens of Louisiana on August 1, 2026. La CCrP Art. 983(M)(5).

If you or someone you know wants to know if they are eligible for an expungement under this law, give us a call at (318) 459-9111 to set up a consult.

Article 4, Section 5, Subsection (E of the Louisiana Constitution grants the Governor of the State of Louisiana the following powers:

(E) Pardon, Commutation, Reprieve, and Remission; Board of Pardons.

(1) The governor may grant reprieves to persons convicted of offenses against the state and, upon favorable recommendation of the Board of Pardons,1 may commute sentences, pardon those convicted of offenses against the state, and remit fines and forfeitures imposed for such offenses. However, a first offender convicted of a non-violent crime, or convicted of aggravated battery, second degree battery, aggravated assault, mingling harmful substances, aggravated criminal damage to property, purse snatching, extortion, or illegal use of weapons or dangerous instrumentalities never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor.

(emphasis added).

This section of the Louisiana Constitution grants those never before convicted of a felony to automatically receive a “first offender pardon” under several circumstances:

(1) If they are convicted of a “non-violent crime”

Crimes of violence are defined in Louisiana Revised Statutes §14:2 as: “an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon.”

La. R.S. 14:2 further gives an enumerated list of crimes the legislature defines as “crimes of violence”:

(1) Solicitation for murder.

(2) First degree murder.

(3) Second degree murder.

(4) Manslaughter.

(5) Aggravated battery.

(6) Second degree battery.

(7) Aggravated assault.

(8) Aggravated kidnapping of a child.

(9) Aggravated or first degree rape.

(10) Forcible or second degree rape.

(11) Simple or third degree rape.

(12) Sexual battery.

(13) Second degree sexual battery.

(14) Intentional exposure to AIDS virus.

(15) Aggravated kidnapping.

(16) Second degree kidnapping.

(17) Simple kidnapping.

(18) Aggravated arson.

(19) Aggravated criminal damage to property.

(20) Aggravated burglary.

(21) Armed robbery.

(22) First degree robbery.

(23) Simple robbery.

(24) Purse snatching.

(25) False imprisonment; offender armed with dangerous weapon.

(26) Assault by drive-by shooting.

(27) Aggravated crime against nature.

(28) Carjacking.

(29) Molestation of a juvenile or a person with a physical or mental disability.

(30) Terrorism.

(31) Aggravated second degree battery.

(32) Aggravated assault upon a peace officer.

(33) Aggravated assault with a firearm.

(34) Armed robbery; use of firearm; additional penalty.

(35) Second degree robbery.

(36) Disarming of a peace officer.

(37) Stalking.

(38) Second degree cruelty to juveniles.

(39) Aggravated flight from an officer.

(40) Sexual battery of persons with infirmities.

(41) Battery of a police officer.

(42) Trafficking of children for sexual purposes.

(43) Human trafficking.

(44) Home invasion.

(45) Domestic abuse aggravated assault.

(46) Vehicular homicide, when the operator's blood alcohol concentration exceeds 0.20 percent by weight based on grams of alcohol per one hundred cubic centimeters of blood.

(47) Aggravated assault upon a dating partner.

(48) Domestic abuse battery punishable under R.S. 14:35.3(L), (M)(2), (N), (O), or (P).

(49) Battery of a dating partner punishable under R.S. 14:34.9(L), (M)(2), (N), (O), or (P).

(50) Violation of a protective order punishable under R.S. 14:79(C).

(51) Criminal abortion.

(52) First degree feticide.

(53) Second degree feticide.

(54) Third degree feticide.

(55) Aggravated abortion by dismemberment.

(56) Battery of emergency room personnel, emergency services personnel, or a healthcare professional.

(57) Possession of a firearm or carrying of a concealed weapon by a person convicted of certain felonies in violation of R.S. 14:95.1(D).

(58) Distribution of fentanyl or carfentanil punishable under R.S. 40:967(B)(4)(b).

(59) Distribution of heroin punishable under R.S. 40:966(B)(3)(b).

La R.S. 14:2(B). All individuals convicted of the crimes listed above will not receive a first offender pardon unless:

(2) They are convicted of “aggravated battery, second degree battery, aggravated assault, mingling harmful substances, aggravated criminal damage to property, purse snatching, extortion, or illegal use of weapons or dangerous instrumentalities” because the legislature explicitly excluded these offense and allows for first offender pardons for these convictions.

A First Offender Pardon is not like a Pardon with restoration of gun rights signed by the Governor because it does not restore an individual’s right to possess a firearm under either State or Federal law. Nor does it impact that person’s right to vote as voting rights are restored for all felons immediately upon completion of their sentence as of other legislation that was passed several years ago.

At this point, the only effect a first offender pardon appears to have is that it allows an individual to file for an expungement of a felony conviction immediately upon receiving his pardon, rather than having to wait 10 years to establish a clean record as would otherwise by required by Louisiana Code of Criminal Procedure Article 978.

If you or someone you know has received a first offender pardon and would like to know if you are eligible for an expungement, give us a call at (318) 459-9111 to set up a consult.

The Louisiana Legislature enacted Louisiana Code of Criminal Procedure Article 972.1 to allow for expungements to be filed in:

1. District courts and their commissioners within their trial jurisdiction.

2. City or parish court within their trial jurisdiction.

3. Mayor’s courts and traffic courts within their trial jurisdiction.

4. Juvenile and family courts within their trial jurisdiction.

5. Municipal and traffic courts of New Orleans within their trial jurisdiction.

La C.Cr.P. Art. 972.1.

More importantly, however, the Louisiana Legislature has amended the expungement laws regarding misdemeanor marijuana convictions for a limited period of time:

Effective August 1, 2023, “a person may file a motion to expunge his record of arrest and conviction of a misdemeanor conviction for a first offense possession of marijuana, tetrahydrocannabinol, or chemical derivates thereof after ninety days from the date of conviction.” La. C.Cr.P. Art. 977. This means that, beginning August 1, first offense misdemeanor possession of marijuana convictions are able to be expunged 90 days after the date of conviction. For this limited purpose, the requirement of an 894 or 5-year waiting period are reduced to 90 days. Be aware that this change has a sunset provision, meaning that this option is only available until August 1, 2026. La. C.Cr.P. Art. 983(M)(5).

The fees for filing an expungement under this provision are $50 to the Louisiana Bureau of Criminal Identification and Information, $50 to the Sheriff, $50 to the District Attorney’s Office, and $150 to the Clerk of Court. La. C.Cr.P. Art. 983(M)(1). This is $200 cheaper than a normal expungement.

If you or someone you know is looking to expunge a first offense misdemeanor marijuana conviction, give us a call at (318) 459-9111 to set up a consult.

An expungement, in Louisiana, is a process by which an individual with an arrest on his record may, under certain circumstances, remove that arrest record from public view on his rap sheet. It is important to note that in Louisiana an expungement does not make it like the arrest never happened. The arrest record can still be seen by law enforcement and the court system (and therefore, if the person was convicted, can be used against them as a prior offense for purposes of multiple offender sentencing, for example) and there are many state agencies which are exempt from the expungement order and will still be able to see the record (the Louisiana State Bar Association, Louisiana State Nursing & Medical Boards, and Insurance Board, just to name a few).

There are three types of arrest records that may be eligible for expungement:

1. An arrest that did not result in a conviction

2. An arrest that resulted in a misdemeanor conviction.

3. An arrest that resulted in a felony conviction.

Each has slightly different rules and regulations:

An 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, including the reason that the person successfully completed a pretrial diversion program.

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

(4) The person was judicially determined to be factually innocent and entitled to compensation for a wrongful conviction pursuant to the provisions of R.S. 15:572.8. The person may seek to have the arrest and conviction which formed the basis for the wrongful conviction expunged without the limitations or time delays imposed by the provisions of this Article or any other provision of law to the contrary."

La CCrP ART. 976.

An Arrest That Resulted in a Conviction of a Misdemeanor:

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.

La CCrP Art. 977(A). However, there are some exceptions to the above rules: Expungements of convictions arising from circumstances involving or as the result of an arrest for a sex offense and convictions for domestic abuse battery and stalking are not eligible for expungement under any circumstances. La CCrP Art. 977(C).

An Arrest That Resulted in a Felony Conviction

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 any of the following apply:

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

(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.

(3) The person is entitled to a first offender pardon for the offense pursuant to Article IV, Section 5(E)(1) of the Constitution of Louisiana, provided that the offense is not defined as a crime of violence pursuant to R.S. 14:2(B) or a sex offense pursuant to R.S. 15:541.

La CCrP Art. 978(A). Just as in the case of misdemeanor convictions, there are exceptions to these eligibility requirements, as well:

• Crimes of violence, unless an exception to this exception applies (yes, I know. I’ll get to that.)

• A sex offense or crime against a victim who is a minor as defined in the sex offender registry statute.

• Violations of the Uniform Controlled Dangerous Substances Law, except: simple possession, possession with intent to distribute, if the possible term of imprisonment is less than five years, if the person was sentenced pursuant to Article 893, or if the person is eligible for a first offender pardon for the offense.

• Domestic abuse battery.

La CCrP Art. 978(B). The crimes of violence exception (the first bullet point above) allows for the expungement of only the following crimes of violence: aggravated battery, second degree battery, aggravated criminal damage to property, simple robbery, purse snatching, or illegal use of weapons or dangerous instrumentalities; if all of the following conditions are also met:

(a) 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.

(b) The person has not been convicted of any other criminal offense during the ten-year period.

(c) The person has no criminal charge pending against him.

La CCrP Art. 978(E)(1).

If you are interested in seeing if you are eligible for an expungement, give us a call at (318) 459-9111 to schedule a consult.

Article 4, Section 5, Subsection (E of the Louisiana Constitution grants the Governor of the State of Louisiana the following powers:

(E) Pardon, Commutation, Reprieve, and Remission; Board of Pardons.

(1) The governor may grant reprieves to persons convicted of offenses against the state and, upon favorable recommendation of the Board of Pardons,1 may commute sentences, pardon those convicted of offenses against the state, and remit fines and forfeitures imposed for such offenses. However, a first offender convicted of a non-violent crime, or convicted of aggravated battery, second degree battery, aggravated assault, mingling harmful substances, aggravated criminal damage to property, purse snatching, extortion, or illegal use of weapons or dangerous instrumentalities never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor.

(emphasis added).

This section of the Louisiana Constitution grants those never before convicted of a felony to automatically receive a “first offender pardon” under several circumstances:

(1) If they are convicted of a “non-violent crime”

Crimes of violence are defined in Louisiana Revised Statutes §14:2 as: “an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon.”

La. R.S. 14:2 further gives an enumerated list of crimes the legislature defines as “crimes of violence”:

(1) Solicitation for murder.

(2) First degree murder.

(3) Second degree murder.

(4) Manslaughter.

(5) Aggravated battery.

(6) Second degree battery.

(7) Aggravated assault.

(8) Aggravated kidnapping of a child.

(9) Aggravated or first degree rape.

(10) Forcible or second degree rape.

(11) Simple or third degree rape.

(12) Sexual battery.

(13) Second degree sexual battery.

(14) Intentional exposure to AIDS virus.

(15) Aggravated kidnapping.

(16) Second degree kidnapping.

(17) Simple kidnapping.

(18) Aggravated arson.

(19) Aggravated criminal damage to property.

(20) Aggravated burglary.

(21) Armed robbery.

(22) First degree robbery.

(23) Simple robbery.

(24) Purse snatching.

(25) False imprisonment; offender armed with dangerous weapon.

(26) Assault by drive-by shooting.

(27) Aggravated crime against nature.

(28) Carjacking.

(29) Molestation of a juvenile or a person with a physical or mental disability.

(30) Terrorism.

(31) Aggravated second degree battery.

(32) Aggravated assault upon a peace officer.

(33) Aggravated assault with a firearm.

(34) Armed robbery; use of firearm; additional penalty.

(35) Second degree robbery.

(36) Disarming of a peace officer.

(37) Stalking.

(38) Second degree cruelty to juveniles.

(39) Aggravated flight from an officer.

(40) Sexual battery of persons with infirmities.

(41) Battery of a police officer.

(42) Trafficking of children for sexual purposes.

(43) Human trafficking.

(44) Home invasion.

(45) Domestic abuse aggravated assault.

(46) Vehicular homicide, when the operator's blood alcohol concentration exceeds 0.20 percent by weight based on grams of alcohol per one hundred cubic centimeters of blood.

(47) Aggravated assault upon a dating partner.

(48) Domestic abuse battery punishable under R.S. 14:35.3(L), (M)(2), (N), (O), or (P).

(49) Battery of a dating partner punishable under R.S. 14:34.9(L), (M)(2), (N), (O), or (P).

(50) Violation of a protective order punishable under R.S. 14:79(C).

(51) Criminal abortion.

(52) First degree feticide.

(53) Second degree feticide.

(54) Third degree feticide.

(55) Aggravated abortion by dismemberment.

(56) Battery of emergency room personnel, emergency services personnel, or a healthcare professional.

(57) Possession of a firearm or carrying of a concealed weapon by a person convicted of certain felonies in violation of R.S. 14:95.1(D).

(58) Distribution of fentanyl or carfentanil punishable under R.S. 40:967(B)(4)(b).

(59) Distribution of heroin punishable under R.S. 40:966(B)(3)(b).

La R.S. 14:2(B). All individuals convicted of the crimes listed above will not receive a first offender pardon unless:

(2) They are convicted of “aggravated battery, second degree battery, aggravated assault, mingling harmful substances, aggravated criminal damage to property, purse snatching, extortion, or illegal use of weapons or dangerous instrumentalities” because the legislature explicitly excluded these offense and allows for first offender pardons for these convictions.

A First Offender Pardon is not like a Pardon with restoration of gun rights signed by the Governor because it does not restore an individual’s right to possess a firearm under either State or Federal law. Nor does it impact that person’s right to vote as voting rights are restored for all felons immediately upon completion of their sentence as of other legislation that was passed several years ago.

At this point, the only effect a first offender pardon appears to have is that it allows an individual to file for an expungement of a felony conviction immediately upon receiving his pardon, rather than having to wait 10 years to establish a clean record as would otherwise by required by Louisiana Code of Criminal Procedure Article 978.

If you or someone you know has received a first offender pardon and would like to know if you are eligible for an expungement, give us a call at (318) 459-9111 to set up a consult.

Since it is the new year, we always like to take this time when people are thinking about “new year, new me,” to talk about expungements.

An expungement, in Louisiana, is a process by which an individual with an arrest on his record may, under certain circumstances, remove that arrest record from public view on his rap sheet. It is important to note that in Louisiana an expungement does not make it like the arrest never happened. The arrest record can still be seen by law enforcement and the court system (and therefore, if the person was convicted, can be used against them as a predicate offense for purposes of multiple offender sentencing, for example) and there are many state agencies which are exempt from the expungement order and will still be able to see the record (the Louisiana State Bar Association, Louisiana State Nursing & Medical Boards, and Insurance Board, just to name a few).

There are three types of arrest records that may be eligible for expungement:

1. An arrest that did not result in a conviction

2. An arrest that resulted in a misdemeanor conviction.

3. An arrest that resulted in a felony conviction.

Each has slightly different rules and regulations:

An 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, including the reason that the person successfully completed a pretrial diversion program.

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

(4) The person was judicially determined to be factually innocent and entitled to compensation for a wrongful conviction pursuant to the provisions of R.S. 15:572.8. The person may seek to have the arrest and conviction which formed the basis for the wrongful conviction expunged without the limitations or time delays imposed by the provisions of this Article or any other provision of law to the contrary."

La CCrP ART. 976.

An Arrest That Resulted in a Conviction of a Misdemeanor:

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.

La CCrP Art. 977(A). However, there are some exceptions to the above rules: Expungements of convictions arising from circumstances involving or as the result of an arrest for a sex offense and convictions for domestic abuse battery and stalking are not eligible for expungement under any circumstances. La CCrP Art. 977(C).

An Arrest That Resulted in a Felony Conviction

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 any of the following apply:

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

(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.

(3) The person is entitled to a first offender pardon for the offense pursuant to Article IV, Section 5(E)(1) of the Constitution of Louisiana, provided that the offense is not defined as a crime of violence pursuant to R.S. 14:2(B) or a sex offense pursuant to R.S. 15:541.

La CCrP Art. 978(A). Just as in the case of misdemeanor convictions, there are exceptions to these eligibility requirements, as well:

• Crimes of violence, unless an exception to this exception applies (yes, I know. I’ll get to that.)

• A sex offense or crime against a victim who is a minor as defined in the sex offender registry statute.

• Violations of the Uniform Controlled Dangerous Substances Law, except: simple possession, possession with intent to distribute, if the possible term of imprisonment is less than five years, if the person was sentenced pursuant to Article 893, or if the person is eligible for a first offender pardon for the offense.

• Domestic abuse battery.

La CCrP Art. 978(B). The crimes of violence exception (the first bullet point above) allows for the expungement of only the following crimes of violence: aggravated battery, second degree battery, aggravated criminal damage to property, simple robbery, purse snatching, or illegal use of weapons or dangerous instrumentalities; if all of the following conditions are also met:

(a) 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.

(b) The person has not been convicted of any other criminal offense during the ten-year period.

(c) The person has no criminal charge pending against him.

La CCrP Art. 978(E)(1).

If you are interested in seeing if you are eligible for an expungement, give us a call at (318) 459-9111 to schedule a consult.

Effective May 26, 2022, the legislature amended Louisiana Code of Criminal Procedure Article 983 to allow for a district attorney to certify that an applicant for expungement was a victim of human trafficking and that the offense for which the expungement is sought was committed, in substantial part, as the result of that status as a victim of human trafficking. The applicant must establish by a preponderance of the evidence that they are the victim of human trafficking to obtain the certification (in accordance with La. R.S. 14:46.2) but, once obtained, the certification will serve as prima facie proof within all other Louisiana jurisdictions that during the time period the applicant was a victim of human trafficking, that all other offenses were as a result of their status as a victim of human trafficking.

If the applicant obtains this certification, all waiting periods for expungement are waived, and the applicant shall not be required to pay any fees for the expungement.

Effective August 1, 2022, applicants for expungement who are factually innocent and entitled to compensation for wrongful conviction pursuant to La. R.S. 15:572.8 are exempt from filing fees for obtaining an expungement for that record.

Further, an applicant who has received a pardon shall also be exempt from the filing fees, unless it was a first offender pardon.

If you or someone you know has questions about obtaining an expungement of an arrest record, call us at (318) 459-9111 to schedule a consultation.

The short answer to this question is: No.

The right to a first offender pardon is established in the Louisiana Constitution of 1974, Article IV, Section 5(E), and states in relevant part:

a first offender convicted of a non-violent crime, or convicted of aggravated battery, second degree battery, aggravated assault, mingling harmful substances, aggravated criminal damage to property, purse snatching, extortion, or illegal use of weapons or dangerous instrumentalities never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor.

Louisiana Constitution of Article IV, Section 5(E). Louisiana Revised Statutes 15:572 elaborates on this power:

B.(1)  A first offender never previously convicted of a felony shall be pardoned automatically upon completion of his sentence without a recommendation of the Board of Pardons and without action by the governor.

(2)  No person convicted of a sex offense as defined in R.S. 15:541 or determined to be a sexually violent predator or a child predator under the provisions of R.S. 15:542.1 et seq. shall be exempt from the registration requirements of R.S. 15:542.1 et seq., as a result of a pardon under the provisions of this Subsection.

(3)  Notwithstanding any provision of law to the contrary, no pardon shall be issued to a first offender unless that person has paid all of the court costs which were imposed in connection with the conviction of the crime for which the pardon is to be issued.

C.  For the purposes of this Section, "first offender" means a person convicted within this state of a felony but never previously convicted of a felony within this state or convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would have been a felony, regardless of any previous convictions for any misdemeanors.  Convictions in other jurisdictions which do not have counterparts in this state will be classified according to the laws of the jurisdiction of conviction.

D.  On the day that an individual completes his sentence the Division of Probation and Parole of the Department of Corrections, after satisfying itself that (1) the individual is a first offender as defined herein and (2) the individual has completed his sentence shall issue a certificate recognizing and proclaiming that the petitioner is fully pardoned for the offense, and that he has all rights of citizenship and franchise, and shall transmit a copy of the certificate to the individual and to the clerk of court in and for the parish where the conviction occurred.  This copy shall be filed in the record of the proceedings in which the conviction was obtained.  However, once an automatic pardon is granted under the provisions of this Section, the individual who received such pardon shall not be entitled to receive another automatic pardon.

E.  Notwithstanding any provision herein contained to the contrary, any person receiving a pardon under the provisions of Subparagraph (1) of Paragraph (E) of Section 5 of Article IV of the Louisiana Constitution of 1974 and this Section may be charged and punished as a second or multiple offender as provided in R.S. 15:529.1.

La. R.S. 15:542.

A first offender pardon does not remove the record from public access and it can still be used against a person in a subsequent prosecution.

The effect of an expungement is established in Louisiana Code of Criminal Procedure Article 973:

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, the Louisiana State Board of Chiropractic 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.

La. CCrP. Art. 973.

Under current ATF guidelines, an expungement will serve to restore an individual’s right to possess a firearm under federal law. An expungement, like a first offender pardon, does not prevent the use of the expunged conviction from use against a person in a subsequent prosecution.

If you or someone you know has questions about eligibility for or obtaining an expungement and would like to set up a consult, give us a call at (318) 459-9111.

One of the most common questions we are asked is: how does a criminal conviction impact my right to own or possess a firearm? The answer is: it’s complicated.

What you are dealing with when trying to determine whether a certain criminal conviction will impact your right to possess a firearm is the intersection of both state and federal law.

Under Louisiana law, a person is prohibited from possessing a firearm for 10 years from the completion of any sentence as the result of a felony conviction of one of the following offenses or an attempt to commit one of the following offenses:

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

• simple burglary,

• burglary of a pharmacy,

• burglary of an inhabited dwelling,

• unauthorized entry of an inhabited dwelling,

• felony illegal use of a dangerous weapon,

• manufacture or possession of a delayed action incendiary device,

• manufacture or possession of a bomb,

• possession of a firearm while in possession of or during the sale or distribution of controlled dangerous substances,

• a felony violation of the controlled dangerous substances laws, or

• a sex offense (as defined in La. R.S. 15:541).

A person is further prohibited from possessing a firearm under Louisiana law for certain offenses that may be misdemeanors for 10 years from the completion of any sentence:

• domestic abuse battery,

• a second or subsequent conviction of battery of a dating partner, or

• battery of dating partner that involved strangulation or burning.

Under Louisiana law, the passage of 10 years from the completion of sentence restores an individual’s right to possess a firearm; however, federal law has no such cleansing period. Under federal law, an individual is prohibited from possessing a firearm for any conviction for:

• a crime punishable by imprisonment for more than one year (Note: this pretty much includes all felonies in Louisiana, not just the ones enumerated above) or

• a misdemeanor crime of domestic violence.

The ATF allows for the restoration of a person’s right to possess a firearm under federal law if:

…as long as the pardon, expungement or restoration does not expressly provide that the person may not ship, transport, possess or receive firearms. A restoration of civil rights, however, is only effective to remove the federal firearms disability if the law of the jurisdiction provides for the loss of civil rights for a conviction of such a misdemeanor.

Bureau of Alcohol, Tobacco, Firearms, and Explosives Website.

Under current ATF regulations, a person eligible for expungement who actually expunges an arrest (and conviction) from his record will be able to possess a firearm because Louisiana law does not specifically exclude the right to possess a firearm from its expungement law.

If you or someone you know would like to set up a consult to discuss an expungement to restore your right to. possess a firearm, give us a call at (318) 459-9111.

1. How often can I get an expungement?

Early and often - if you were not convicted of any offense resulting from the arrest, you can expunge these arrests any time and as many of them as you want. If you were arrested for a felony but convicted of a misdemeanor, you can apply for an interim expungement of the felony arrest anytime, but cannot remove the record of the misdemeanor conviction until the delays discussed below have passed.

Immediately after the sentence is completed - Under some circumstances, a condition can be expunged immediately when the person seeking the expungement has completed their sentence:

• If the individual was convicted of a misdemeanor and sentenced pursuant to Article 894, they will need to set aside their conviction after successful completion of probation, and then will be able to file an expungement.

• If the individual was convicted of a felony and sentenced pursuant to Article 895, they will need to set aside their conviction after successful completion of probation, and then will be able to file an expungement.

• If the individual was convicted of a felony for the first time and is eligible for a first offender pardon, they may file for an expungement immediately upon completion of their sentence.

5 Years - for most misdemeanors after the date the individual was last serving any portion of their sentence (including probation).

10 years - for most felonies after the date they were last serving any portion of their sentence (including probation or parole).

As of August 1, 2020, the limitations on the number of arrests that can be expunged within a certain period of time (15 years for a felony, and 5 for a misdemeanor) have been repealed. It appears from this change in the law, that provided that an individual otherwise meets the requirements to expunge ALL of his arrests, he now no longer has to choose only one and wait 5 or 15 years to expunge another. He can expunge all of his arrests at once.

2. Are there any charges that can’t be expunged?

Yes. Sex offenses as defined in La. R.S. 15:541, and domestic abuse battery convictions cannot be expunged. Under certain circumstances, crimes of violence as defined in La. R.S. 14:2(B) and violations of the Uniform Controlled Dangerous Substances laws (Title 40) cannot be expunged.

3. How long will this process take?

Approximately 6 - 9 months.

The first step is to apply for a background check from Louisiana State Police. Once that is received, the Petition for Expungement must be filed within 30 days. There is a 60-day waiting period during which the State may file an objection to the Petition. Once the 60-day waiting period has passed, the Court will set the matter for a court appearance and either grant or deny the Petition. If it is granted, the Court will sign the order and the expungement will be granted.

There is often a delay between the signing of the order and the removal of the record because the Clerk of Court must send a copy of the order to each police agency involved in the case. Once each agency has removed the record from public access, they will send a certification letter stating so to the Clerk of Court. This entire process from background check request to receipt of final certification letter takes approximately 6 months.

4. Once I have gotten an expungement, can I tell people I’ve never been arrested?

Under most circumstances and with regard to the specific charge you have gotten expunged, yes. (If you have multiple arrests and are not able to expunge them all, you may still have to disclose those arrests depending on the wording of the question.)

5. Does an expungement make it like my charge “never happened?”

Short Answer: No.

Longer Answer: Expungements are different in every state. In Louisiana, an expungement removes the record from “public access” but does not result in the record’s destruction. In effect, this means that most background checks will not reveal the existence of the arrest; however, there are many exceptions to this rule. This also means that the arrest can be seen by law enforcement and the courts and can be used against you in subsequent prosecutions.

If you have a specific question about whether an expungement is a good idea for your circumstances, call us at (318) 459-9111 to set up a consult.

Effective August 1, 2019, the Louisiana legislature has made a few changes to the States’ expungements laws. The first change makes clear that the records that must be removed from public access after an expungement order is signed include records of arrest or warrants for failure to appear bench warrants provided that bench warrant was related to the same offense(s) for which the person is seeking an expungement. This change will close a loophole that could have allowed an individual to receive an expungement, have their arrest record for the original arrest removed from public access, but have their rap sheet still show an arrest or an outstanding warrant for a bench warrant if they had failed to appear in court for any reason for that same charge.

The second change increases the availability of expungements for individuals with felony convictions. Also, taking effect on August 1, 2019, Code of Criminal Procedure Article 978 now allows individuals who are entitled to a first offender pardon pursuant to Article IV, Section 5(E)(1) of the Louisiana Constitution to be eligible for an expungement, as long as the offense they are attempting to expunge is not a crime of violence as defined in La. R.S. 14:2(B) or a sex offense as defined in La. R.S. 15:541.

The First Offender Pardon contained in the Louisiana Constitution automatically pardons an individual who has been convicted of a non-violent crime (or of mingling harmful substances, extortion, or illegal use of weapons or dangerous instrumentalities) who has completed his sentence. This effectively means that, for those convicted of only one felony, who may not have been sentenced pursuant to Article 893, they will be eligible to expunge their arrest and conviction immediately upon completion of their sentence, provided they are otherwise eligible for a first offender pardon.

If you or someone you know thinks you may now be eligible for an expungement, please contact our office for a consult at (318) 459-9111.

Depending on the nature of the charge, the jurisdiction where the expungement will be filed, and whether or not the offense was a DWI, an expungement will cost approximately $600 in filing fees and expenses.*

In general, the filing fees for an expungement are broken down as follows:

• $200.00 money order payable to Clerk of Court

• $250.00 money order payable to Louisiana Bureau of Criminal Identification/Information

• $ 50.00 money order payable to Caddo Parish Sheriff

• $ 50.00 money order payable to Caddo Parish District Attorney

Some parishes will charge slightly less or more to the Clerk of Court and in some circumstances, a DWI arrest will cost an additional $50 because certain records have to be sent to the Department of Motor Vehicles, along with the documentation of the expungement.

In addition to these costs, a background check must be filed with the expungement, which costs $26 from Louisiana State Police. In order to obtain the background check, you must send a fingerprint card to the LSP and the cost will vary by police department. If you are eligible for expungement because of sentencing pursuant to Article 893 or 894, there may be costs associated with filing the motion to set aside.

*Attorney Fees are charged separately from expenses and will vary by attorney. If you would like to set up a consult to discuss an expungement, please call our office at (318) 459-9111 or click the “contact us” link on our website!

We get asked all the time about the benefits of an expungement when applying for a job. For your average job that is simply going to require a background check and doesn’t have additional licensing requirements, often an expungement will help you.

In the event your job requires more than a simple background check, or has specific licensing requirements, you may be required to disclose an arrest even if you have had your record expunged.

Louisiana Code of Criminal Procedure Article 973 establishes the effects of an expungement:

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, the Louisiana State Board of Chiropractic 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.

Subsection (B) establishes the organizations who are exempt from the expungement order:

• Office of Financial Institutions;

• Louisiana State Board of Medical Examiners;

• Louisiana State Board of Nursing;

• Louisiana State Board of Dentistry;

• Louisiana State Board of Examiners of Psychologists;

• The Louisiana Board of Pharmacy;

• The Louisiana State Board of Social Work Examiners;

• Emergency Medical Services Certification Commission;

• Louisiana Attorney Disciplinary Board, Office of Disciplinary Counsel, the Louisiana Supreme Court Committee on Bar Admissions;

• Louisiana Department of Insurance;

• Louisiana Licensed Professional Counselors Board of Examiners;

• Louisiana State Board of Chiropractic 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.

Despite the fact that your un-expunged record will still be visible if you are applying to one of the above state agencies for a license to work in Louisiana, it is often a good idea to obtain the expungement anyway. The fact that your record has been expunged will also be known to the above agencies and it will show that you are either a first-time offender who was sentenced pursuant to Articles 893 or 894 or that you have served a 5 or 10 year cleansing period with no subsequent arrests so as to be eligible for the expungement.

If you or someone you know is having difficulty obtaining employment as a result of a criminal arrest and would like to know if you are eligible for expungement, please contact our office at (318) 459-9111 for a consultation.

Anywhere from 6 - 9 months from beginning to end.

The first step will depend on the grounds under which you are eligible for an expungement. If you are able to expunge your arrest because you were sentenced under Article 893 or 894, you will first need to file and have granted a motion to set aside your conviction. Once that is completed, you can move on to the first step for everyone else:

(1) Obtain a background check from the Louisiana State Police. This usually takes anywhere from 30-60 days to obtain once you have sent the fees and fingerprints off to the Bureau of Criminal Identification and Information.

(2) Obtain all minutes and fill out your forms and then file for the expungement.

(3) Wait. The State has 60 days to file an objection to the Motion for Expungement.

(4) Depending on what jurisdiction the expungement is filed in, the procedure at this point will differ slightly. Some parishes will grant the expungement automatically if no objection is filed; some will require a hearing even if no objection is filed. A hearing will be required if the state objects.

(5) Note that your rap sheet may still show the arrest until you have received certification letters from the arresting agency and Louisiana State Police confirming that their records have been removed from public view.

Because so much of the process is dependent on the actions of third parties (LSP, the State of Louisiana, the court), I always recommend clients begin the expungement process as early as possible in the event they will need their record cleared for a specific purpose.

If you have a conviction you’d like to know if you can remove from your record, give us a call at (318) 459-9111.

We’ve all been inundated with the advertising slogan: “New Year: New You!” But in our case, we’d actually like to help give you a blank slate. The new year is a great time to think about clearing up a criminal record.

In Louisiana, people convicted of most misdemeanors and certain felonies can be eligible to have their convictions removed from their public record under certain circumstances:

(1) If that person was originally sentenced pursuant to Code of Criminal Procedure Article 893 or 894 and has successfully completed their probation; or

(2) after remaining arrest-free for 5 or 10 years (depending on the seriousness of the offense).

If the person meets one of these requirements and an expungement is not excluded for some other reason (i.e.: the person has already received an expungement for another charge within the last 5 or 10 years, the offense is a violation of the Uniform Controlled Dangerous Substances Act, certain sex offenses, or certain crimes of violence), then that person may be eligible to have the arrest expunged.

An expungement in Louisiana does not “make it like it never happened,” but for many purposes, it will allow the person to say when asked that they have not been arrested or convicted for the offense which has been expunged.

Expungements are great tools for first-offenders or those who have an old criminal record that may be causing them difficulties when job-hunting or apartment-hunting.

If you or someone you know is interested in cleaning up a criminal record this new year, give us a call at (318) 459-9111! And happy new year from us at Gilmer & Giglio!

Articles 893 and 894 of the Louisiana Code of Criminal Procedure in their broadest sense allow for the suspension and deferral of a sentence (and probation) in a criminal case. More specifically, under certain circumstances, they allow a conviction to be set aside after the defendant serves a period of probation satisfactorily. This opens up the charge for expungement.

Article 893:

Article 893 applies to felony convictions and allows for a conviction to be “set aside and dismissed” after a term of probation if the sentencing court defers the imposition of a sentence “after a conviction for a first offense noncapital felony.” At the conclusion of the probationary period, if the defendant has completed his probation satisfactorily, he will be able to have his conviction set aside and the prosecution dismissed.

A defendant may only receive the benefits of Article 893 once and there are several exceptions to eligibility for deferral including certain violations of the Controlled Dangerous Substances Laws, sex offenses, and violent crimes.

Article 894:

Article 894 applies to misdemeanor convictions and allows for a conviction to be “set aside and dismissed” after a term of probation if the sentencing court defers the imposition of the sentence. At the conclusion of the probationary period, if the defendant has completed his probation satisfactorily, he will be able to have his conviction set aside and the prosecution dismissed.

A defendant may only receive the benefits of Article 894 once during a 5-year period (or a 10-year period for Driving While Intoxicated convictions). 

Okay, so why do I want one?

The dismissal and set aside of the conviction under either Article 893 or 894 allows the defendant to seek an expungement of the arrest record immediately and will also allow him to say that he has never had a criminal conviction (assuming an otherwise clean record) for most purposes.

If he goes through with expungement, he will be able to say he has never been arrested (assuming an otherwise clean record, and with some exceptions).

The benefit of an Article 893 or 894 allows an individual to maintain, for most purposes, a clean record once she has served her term of probation and to minimize the impact of a sole criminal offense on her life.

If you have been arrested, and are unsure whether you will be eligible for an 893 or 894, call us at (318) 459-9111 to schedule an appointment to discuss your case.

1. How often can I get an expungement?

Early and often - if you were not convicted of any offense resulting from the arrest, you can expunge these arrests any time and as many of them as you want. If you were arrested for a felony but convicted of a misdemeanor, you can apply for an interim expungement of the felony arrest anytime, but cannot remove the record of the misdemeanor conviction until the delays discussed below have passed.

5 Years - for most misdemeanors after the date you were last serving any portion of your sentence (including probation).

10 years - for most felonies after the date you were last serving any portion of your sentence (including probation or parole).

You can only expunge one misdemeanor conviction (barring special sentencing provisions) every 5 years and one felony conviction (barring special sentencing provisions) every 15 years. Misdemeanor DWIs can only be expunged once every 10 years.

2. Are there any charges I can’t expunge?

Yes. Sex offenses as defined in La. R.S. 15:541, domestic abuse battery and stalking convictions cannot be expunged. Under certain circumstances, crimes of violence as defined in La. R.S. 14:2(B) and violations of the Uniform Controlled Dangerous Substances laws (Title 40) cannot be expunged.

3. How long will this process take?

Approximately 6 - 9 months.

The first step is to apply for a background check from Louisiana State Police. Once that is received, the Petition for Expungement must be filed within 30 days. There is a 60-day waiting period during which the State may file an objection to the Petition. Once the 60-day waiting period has passed, the Court will set the matter for a court appearance and either grant or deny the Petition. If it is granted, the Court will sign the order and the expungement will be granted.

There is often a delay between the signing of the order and the removal of the record because the Clerk of Court must send a copy of the order to each police agency involved in the case. Once each agency has removed the record from public access, they will send a certification letter stating so to the Clerk of Court. This entire process from background check request to receipt of final certification letter takes approximately 6 months.

4. Once I have gotten an expungement, can I tell people I’ve never been arrested?

Under most circumstances and with regard to the specific charge you have gotten expunged, yes. (If you have multiple arrests and are not able to expunge them all, you may still have to disclose those arrests depending on the wording of the question.)

5. Does an expungement make it like my charge “never happened?”

Short Answer: No.

Longer Answer: Expungements are different in every state. In Louisiana, an expungement removes the record from “public access” but does not result in the record’s destruction. In effect, this means that most background checks will not reveal the existence of the arrest; however, there are many exceptions to this rule. This also means that the arrest can be seen by law enforcement and the courts and can be used against you in subsequent prosecutions.

If you have a specific question about whether an expungement is a good idea for your circumstances, call us at (318) 459-9111 to set up a consult.

Happy National Clean Up Day - September 16th!