On July 1, 2012, the Tennessee legislature amended Tennessee’s expungement law to allow many nonviolent criminal convictions to be removed from an individual’s record.
To qualify under T.C.A. § 40-32-101(g), both the offense and the candidate must meet certain eligibility requirements.
For the offense to qualify, it must be “nonviolent,” defined as an offense without the use, attempted use, or threatened use of physical force against another person or property. The offense must not contain the use of a firearm, a loss of $25,000 or greater, or be classified as a sex offense.
Examples of nonviolent offenses include theft, forgery, writing a worthless check, auto burglary, vandalism, aggravated criminal trespass, failure to appear, unlawful possession of a controlled substance (marijuana), and possession of drug paraphernalia. These offenses (and others) are eligible for expungement.
Offenses that cannot be expunged include assault, domestic assault, aggravated assault, aggravated burglary, unlawful sexual contact, stalking, child abuse, child neglect and endangerment, driving under the influence, rape, robbery, and murder.
For the candidate to qualify, he or she must have no other convictions other than the offense to be expunged. The candidate must also have completed all terms of imprisonment, probation, or parole five years previously to the filing of the petition. This means that even if a candidate paid all outstanding court fines tomorrow, he or she would still have to wait five more years before the offense can be expunged.
For some offenses, the candidate must show that he or she has remained free of dependency from alcohol or controlled substances for one year.
If the candidate has not completed these conditions, he or she should fulfill these requirements before beginning the expungement process.
After determining eligibility, the candidate should collect all of the paperwork from the court in which the plea or conviction occurred, along with receipts showing that all fines, restitution, and court costs have been paid.
Next, the candidate can complete and file a petition requesting relief in the court where the conviction occurred. The candidate must also submit a $450 petition fee. The District Attorney has sixty days from the filing of the petition to file a response. The response will provide the reasons why the District Attorney agrees or disagrees with whether the candidate should be granted an expungement.
Both the District Attorney and the candidate may file additional evidence supporting or attacking the expungement request.
The court will schedule a hearing on the petition, at which time both parties may present witness testimony. After the hearing, the court will decide whether expungement is appropriate.
There is no guarantee that the petition requesting expungement will be granted. If the court denies the petition, the candidate may reapply after two years. If the candidate is repeatedly denied, his or her petition must be granted after 10 years of eligibility.
An order granting expungement does not reinstate voting rights or citizenship rights, which requires a different procedure.
Many convicted felons have expressed frustration that so few are eligible to take advantage of this new expungement process; however, it is a step in the right direction toward erasing old criminal records, and will provide relief for some individuals.
Please contact an attorney for further information on how to begin the expungement process.