Can I get my criminal record expunged?
This is one of the most common questions I am asked as a criminal defense lawyer. The answer, however, is not always clear. In this blog post I will give a quick overview of the types of cases that can be expunged, or cleared from your criminal history, in Tennessee.
There are basically three categories of cases which may be expunged in Tennessee. First, cases in which charges were brought but which did not result in a conviction can be expunged. Second, cases that were resolved pursuant to a diversion agreement or sentence may be eligible to be expunged. And third, recent changes in the law allow for certain old misdemeanor and lower level felony convictions to be expunged. I'll discuss each of these in turn to help you better understand whether you may have a case on your criminal record that can be cleared.
The first category - charges that did not result in a conviction.
Sometimes a person is charged with a crime but is never convicted of that offense. Examples of this include when someone is acquitted, or found not guilty, after a trial; when charges are dismissed by the court after some type this pretrial motion or preliminary hearing; or sometimes upon the request of the prosecutor. Another example is a nolle prosequi. This is sometime referred to as a “nolle” or a “nol pros.” These are cases in which the State advised the Court that it is no longer pursuing a criminal charge. There is another similar disposition called retirement. Retirement means that the State has agreed not to pursue a charge for a certain period of time, sometimes associated with certain conditions, and at the end of that time period the case may be dismissed if there are no further problems and any conditions are met.
The second category - diversion.
Tennessee recognizes two types of first offender type programs called pretrial diversion and judicial diversion. Pretrial diversion is a formal program in which the state may agree to suspend prosecution of charges against someone for certain period of time at the end of which the charge may be dismissed. Judicial diversion is similar in that charges may be dismissed after a certain period of time. The difference between the two is that judicial diversion requires the defendant to enter a conditional guilty plea whereas pretrial diversion requires no guilty plea to be entered. In both, defendants are placed on probation for certain amount of time with the understanding that if they successfully complete probation and stay out of trouble, their charge can be later dismissed and expunged. This does not happen automatically, however. A petition must be filed for the expungement.
The third category - old charges eligible for expungement under the new law.
In July of 2012, changes in Tennessee law went into effect that allow the expungement of certain old convictions. I will talk about this in detail in later blog posts, but here is a quick summary of the type of cases that may be expunged. First defendants applying for expungement under this law must have no other criminal convictions other than the conviction which they are seeking to expunge. Second, at least five years must have passed since the completion of any sentence they received in that case. And third, only certain misdemeanors in lower level felonies are eligible to be expunged under this law.
What do I mean by having no other criminal convictions?
If you have any cases other than the one which you are seeking to expunge that resulted in any type of conviction you are not eligible under this new law. So, if you had another case in which you were convicted of any offense, you are not eligible. If you had another case in which you were placed on diversion and that case was later expunged you are not eligible either.
What does the five year rule mean?
The law states that at least five years must have elapsed since the completion of any sentence. It is important to note that this isn't simply five years from the date that a conviction was entered but five years from the end of any sentence received. This means for example, if you were convicted for some offense and received six months of probation, then you will not be eligible to have that case expunged for five years and six months after the date of your conviction.
What cases are eligible for expungement?
The new law only allows for expungement of specific offenses. For convictions that occurred after 1989 there are 38 specific class E felonies which may be expunged. For this same time period all misdemeanors, with 45 specific exceptions, may be expunged. Some common examples of misdemeanors which may not be expunged include DUI and assault convictions. It is important to note that if you are charged with DUI but convicted of a non-DUI offense, you may be eligible to have that case expunged.
Please note this is only a very general overview of the new expungement law. There are more details in the law which could disqualify certain offenses from expungement, and there are somewhat different provisions for cases which predate 1989.
So, in summary, there are several types of cases which may be expunged from someone's record in Tennessee. But, the types of cases that may be expunged are limited. If you think that you may have a case that is eligible for expungement, I encourage you to speak with an attorney about your situation more detail. Before you call an attorney, it might be helpful for you to go to the court clerk's office where your case was heard and request a copy of the disposition of your case. This will help an attorney better review your case to discuss with you whether it may be expunged.