An Overview of Expungement in Tennessee

CRIMINAL CASES

Tenn. Code Annotated Section 40-32-101 (Dismissal)

Any criminal charge that has been:
Dismissed;
no true bill returned;
a verdict of not guilty in a bench trial or jury trial;
the person was arrested and released without being charged.
Can be expunged. 40-32-101 (a) (1) (a).
Also a nolle prosequi.
No costs to the Defendant.

Must petition to expunge obtain an order
It doesn’t happen automatically. The court doesn’t normally expunge dismissed charges. The Defendant or counsel must petition to have the charge expunged. It is the attorney’s responsibility to file an Order for the Expungement of criminal offender Record (Form EX-1).

What gets expunged?
Provides for the expungement of certain “public records” and the term “public records” refers to all records maintained by a public official regardless of whether such records be for public inspection or for internal use. TN Attorney General Opinion 05-150, September 30, 2005.

Tenn. Code. Ann. Section 40-32-101 set forth circumstances in which certain public records may be removed and destroyed.

What is not a public record that doesn’t get expunged:
Tenn. Code Ann. Section 40-32-101(b)(1) defines what is not a public record as follows::
Does not include:
arrest histories,
investigative reports,
intelligence information of law enforcement agencies,
files of district attorney generals that are maintained as confidential records for law enforcement purposes and are not open for inspection by members of the public
Records of the Department of Children Services or Department of Human Services which are confidential under state or federal law or are required to be maintained.

The Expungement Order is a public record, and the statute does not authorize clerks to retain any public record. The clerk cannot retain a copy of the expungement order for internal use. TN Attorney General Opinion 05-150, September 30, 2005.

Order sent to T.B.I
Clerk’s duty to send or cause to be sent a copy of the expungement order to the Tennessee Bureau of Investigation for entry into its expunged offender and pretrial diversion database.

Follow up
Check the Clerk’s office/files/computers to make sure it happened. Expunged records shall be removed and destroyed within sixty days of filing the petition. That means to remove and destroy public records means destruction or obliteration. See State v. McCary, 815 S.W. 2d 220 (Tenn. Crim. App. 1991); and Tenn. Attorney General Opinion No. 01-040, March 19, 2001.

Internet public records- If the clerk makes available the public records of their office on the internet, then once the expungment order is signed, the record keeper must remove all records ordered expunged from the internet and destroy those records, including any back-up copies. See Tenn. Attorney General Opinion No 00-058, March 31, 2000.

Keep a copy of the Judge signed order. (It might/will come up later).

No limit on number of expungements because of dismissal.

Pretrial Diversion- 40-15-105 Memorandum of Understanding (Suspended prosecution)

The prosecutor/Court agrees to suspend the prosecution for a specified period, not to exceed two years from the filing of the understanding. The Defendant will be supervised and pay a $10.00 a month fee.

Can’t have a prior diversion or judicial diversion.

Can’t have a prior misdemeanor conviction for which a sentence of confinement is served or a prior felony conviction within a five year period after completing the sentence or probationary program for the prior conviction.

The offense for which prosecution is being suspended is not a Class A or Class B felony or a Class C felony.

Can’t be one of the disqualifying charges listed in 40-15-105. (A sexual offense, DUI, vehicular assault, or an attempted offense to any of the listed offenses, or adulteration of foods, aggravated assault resulting in serious bodily injury, aggravated burglary, bribery of a public servant, juror, or witness; buying and selling in regard to public offices, introduction of contraband into a penal institution, robbery, voluntary manslaughter, vehicular homicide. See the long list in 40-15-105(a)(1)(B)(i)-(k).

Must file the TBI qualification form on the front end

Must file the Order for Expungement at the conclusion of the suspended program to destroy the public records.

Comes with conditions- Any grant of diversion must be conditioned on one or more of the following conditions:
that the defendant not commit any criminal offense;
that the defendant refrain from activities, conduct, or associations related to the charge;
that the defendant receive rehabilitative treatment, counseling and education; that the defendant make restitution to the victim;
that the defendant pay court costs and the costs of the diversion;
and that the defendant abide by any other terms or conditions as may be agreed upon. Tenn. Code Ann. § 40-15-105(a)(2)(A)-(H) (1997 & Supp. 1998).
If the defendant violates a term or condition, the prosecution may terminate diversion and resume the criminal prosecution. Tenn. Code Ann. § 40-15-105(d) (1997 & Supp. 1998).

One who is statutorily eligible is not presumptively entitled to diversion. Instead, whether to grant pretrial diversion to a qualified defendant who is statutorily eligible is a determination that lies in the discretion of the district attorney general. State v. Pinkham, 955 S.W.2d 956 (Tenn. 1997).

Factors to Consider in deciding whether to enter into a memorandum of understanding under the pretrial diversion statute a prosecutor should focus on:

the defendant's amenability to correction.
Any factors which tend to accurately reflect whether a particular defendant will or will not become a repeat offender should be considered.
Such factors must, of course, be clearly articulable and stated in the record in order that meaningful appellate review may be had.
Among the factors to be considered in addition to the circumstances of the offense are the defendant's criminal record, social history, the physical and mental condition of a defendant where appropriate, and the likelihood that pretrial diversion will serve the ends of justice and the best interest of both the public and the defendant.
See State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983): State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999)

If the district attorney general denies pretrial diversion, the denial must be in writing and must include "an enumeration of the evidence that was considered and a discussion of the factors considered and weight accorded each." Pinkham, 955 S.W.2d at 960. This "requirement entails more than an abstract statement in the record that the district attorney general has considered these factors." State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989). Instead, the factors considered "must be clearly articulable and stated in the record. . . ." Id.; see also State v. Washington, 866 S.W.2d 950 (Tenn. 1993). That a defendant, obviously, bears the burden of demonstrating suitability for diversion does not relieve the prosecutor's obligation to examine all of the relevant factors and to set forth the required findings. E.g., Pinkham, 955 S.W.2d at 960.

State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999)

If the Prosecutor Denies the application for pretrial diversion, there is an appeal:
The defendant may appeal by petitioning the trial court for a writ of certiorari. Tenn. Code Ann. § 40-15-105(b)(3) (1997 & Supp. 1998). The only evidence that may be considered by the trial court is the evidence that was considered by the district attorney general. State v. Winsett, 882 S.W.2d 806, 810 (Tenn. Crim. App. 1993). The trial court may conduct a hearing only to resolve any factual disputes raised by the prosecutor or the defendant concerning the application, but not to hear additional evidence that was not considered by the prosecutor. See Pinkham, 955 S.W.2d at 960.
The action of the prosecutor is presumptively correct, and it is subject to review by the trial court only for an abuse of discretion. The record in this regard must show an absence of any substantial evidence to support the refusal of the district attorney general to enter into a memorandum of understanding before a reviewing court can find an abuse of discretion. The appellate court must determine whether the trial court's decision is supported by a preponderance of the evidence. Id
State v. Curry, 988 S.W.2d 153, 157-158 (Tenn. 1999)

Judicial diversion- 40-35-313 (plea that is not formally entered)

Eligibility
A defendant is eligible for judicial diversion when they are charged with a misdemeanor or felony and has not previously been convicted of a felony or a Class A misdemeanor. Tenn. Code Annotated Section 40-35-313(a)(1)(B)(i).

Certain offenses are ineligible:
The offense was not a Class A or B felony,
Or a C felony described in 40-15-105(a)(1)(B)(iii);
A sexual offense described in 40-15-105(a)(1)(B)(ii)
Or an offense prohibited by Title 55, chapter 10, part 4;
Vehicular assault as prohibited by 39-13-106
Most sexual offenses, or attempted sexual offenses.
DUI’s- No Pretrial or judicial diversion. Can’t be excluded from a persons driving record. See Tenn. Attorney Opinion No 05-041, April 5, 2005.

Discretionary/not automatic:
Eligibility under the diversion statute does not ensure the grant of diversion. The decision of whether to place a defendant on judicial diversion is within the sound discretion of the trial court. State v. Harris, 953 S.W. 2d 701, 705 (Tenn. Crim. App. 1996).

What happens when a Defendant is granted a judicial diversion:
It is just like a guilty plea but the guilty plea is stayed and not formally entered as a conviction.
It is required by 40-35-313 that the Defendant be supervised by probation during the term of the diversion. This includes the payment of probation fees and the probation requirements just like a person who pleads guilty.
If the Defendant fails to comply with the conditions of probation or obtains a new arrest or conviction before the end of the probationary period, the Court will conduct a hearing to determine whether to remove the defendant from diversion and then sentence the Defendant and enter the conviction on the record.

Prerequisite/to qualify for consideration:
Must fill out and send a completed T.B.I diversion application to the T.BI and obtain a signed/approved diversion certificate from the T.B.I.
Can send the application in before entering the plea (preferred method) or enter the conditional plea with the understanding that if the application shows the client doesn’t qualify, that the conviction doesn’t get diverted.

TBI diversion application- Fill it out and fax it in. Usually takes 3-6 weeks to obtain. If it is returned marked as not qualified because of unresolved charges, it is up to the attorney or Defendant to present certified documentation to the court considering diversion and the T.B.I. to present the disposition of those charges to the Court and the TBI. (see attached application example).

Factors the Court will consider in decision on whether to grant judicial diversion:

State v. Bonestel, 871 S.W. 2d 163, 168 (Tenn. Crim. App. 1993), for this Court’s consideration:
     A. AMENABILITY TO CORRECTION
     B. THE CIRCUMSTANCES OF THE OFFENSE
     C. THE DEFENDANT’S CRIMINAL RECORD
     D. THE DEFENDANT’S PHYSICAL AND MENTAL HEALTH
     E. THE DETERRENCE VALUE TO THE DEFENDANT AS WELL AS OTHERS
     F. WHETHER JUDICIAL DIVERSION WILL SERVE THE ENDS OF JUSTICE –THE INTERESTS OF          THE PUBLIC AS WELL AS THE ACCUSED.

ADDITIONAL FACTORS
Pursuant to State v. Washington, 866 S.W. 2d 950, 951(Tenn. 1993), the following additional factors can be considered:
     1. The Defendant’s attitude
     2. Behavior since arrest
     3. Home environment
     4. Current drug usage
     5. Emotional Stability
     6. Past employment
     7. General Reputation
     8. Family Responsibilities
     9. Attitude of law enforcement

Upon successful completion of judicial diversion, an Order of Expungment of Criminal Offender Record must be filed. If not, the expungement isn’t complete.

Specific issues

No expungement if your found not guilty by reason of insanity- State v.Jennings, 130 S.W. 3d 43 (2004 Tenn). The verdict of not guilty by reason of insanity was returned by a judge not a jury and a NGBRI while functioning as an acquittal, was a verdict indicating the Defendant could not be held criminal responsible because he or she was unable to appreciate the wrongfulness or nature of his conduct due to mental disease or defect.

No expungement if your convicted at trial and it is reversed by the Court of Criminal Appeals.

No expungement of a greater indicted offense when a Defendant is convicted of a lesser lesser within the same count. 40-32-101(a)(1) State v. Gerald Gifford, Court of Criminal Appeals at Knoxville, October 30, 2007.

Exception:
Those before May 22, 2003, could have the greater indicted offense expunged pursuant to State v. James Michael Hanners, Court of Criminal Appeals at Nashville, April 12, 2007.

If convicted of one count and the other counts are dismissed that does not preclude the expungement of all the other counts in the indictment that were dismissed. State v. Gerald Gifford, Court of Criminal Appeals at Knoxville, April 23, 2008.

Certain Occupations:

Certification of Reserve/Part-time/Full-time Law Enforcement Officers. Waivers for Certification. A person who has had misdemeanor charges expunged may be considered for certification.
May have to obtain a waiver,
POST rules prohibits consideration of waivers where expungements were granted for felony convictions, narcotic violations that could have resulted in felony charges and domestic violence convictions.
However, no staututory exception exists that would allow the POST Commission to use a person’s expunged criminal history for the purpose of denying or revoking certification, and the POST Commission cannot create such an exception where the legislature has chosen not to do so. See Rodney Howard Wright v. Tennessee Peace Officer Standards and Training Commission, Court of Appeals at Nashville, April 29, 2008.

Educators
For Purposes of licensure actions “conviction” includes entry of a plea of guilty or nolo contendere, or entry of an order granting pre-trial or judicial diversion. Revocation Rule (0520-2-4-.01(9).

Informal diversion/Pass and dismiss: Where there is no guilty plea but a case is passed for a period of time and then dismissed if no problems or new charges or pay costs. As long as there is no guilty plea, there is no requirement to send in a T.B.I eligibility form. However, at the end of the pass period, make sure and file an expungement order.

Juvenile Offender Act (Driving privileges). Pursuant to Tenn Code Annotated Section 55-10-711, when a person turns eighteen years of age they can have their records expunged.

Orders of Protection- Is it possible to expunge them? Not sure! But if it has expired, can petition the court where it was granted to expunge it. According to an officer in Davidson County Sheriff’s Department, it is has been done in Davidson County, Tennessee.

If you’ve had an expungement, do you have to tell?

After an order of expungement is entered, the individual has a right to privacy and a statutory right prohibiting publication of expunged records. See Fann v. City of Fairview, 905 S.W. 2d 167 (Tenn. App. 1994).

The purpose of the expungement statute is to restore persons to the status they occupied before criminal proceedings began. State v. Sims, 745 S.W. 2d 191, 199 (Tenn. 1988).

Job Applications etc-If a job application for employment/ license ask about prior convictions, can truthfully answer no to a conviction. If the application ask if there were prior charges, must use your own judgment to answer truthfully.

Arrest information and what used to be public information might still be available
Private companies buy the arrest information and could provide it to private employers and the government.

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