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Louisiana Expungements
By Craig Smith
NEW EXPUNGEMENT LAWS
Louisiana Code of Criminal
Procedure
(Effective August 1, 2014, Revised August 1, 2015)
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Art. 971. Legislative
findings
The legislature hereby finds and declares the following:
(1) Louisiana law provides for the expungement of certain arrest
and conviction records under limited circumstances. Obtaining an
expungement of these records allows for the removal of a record from
public access but does not result in the destruction of the record.
(2) An expunged record is confidential, but remains available for
use by law enforcement agencies, criminal justice agencies, and other
statutorily defined agencies.
(3) Following the passage of the Maritime Transportation Security
Act of 2002, all individuals who wish to work at ports or on vessels
regulated by this Act are required to obtain a Transportation Worker
Identification Credential (TWIC). Obtaining a TWIC card requires a
criminal history check and clearance which cannot be obtained without
either a clean record or an expunged record with respect to certain
offenses.
(4) The inability to obtain an expungement can prevent certain
individuals from obtaining gainful employment.
(5) The need for employment must be balanced appropriately against
the desire for public safety. Nothing in this Title shall be
construed to limit or impair in any way the subsequent use of any
expunged record of arrest or conviction in any lawful manner by law
enforcement, law enforcement agencies, prosecutors, or judges, including
its use as a predicate offense or for the provisions of the Habitual
Offender Law.
(6) It is the intention of the legislature that this Title will
provide opportunities to break the cycle of criminal recidivism,
increase public safety, and assist the growing population of criminal
offenders reentering the community to establish a self-sustaining life
through opportunities in employment.
(7) In balancing the legitimate needs of law enforcement agencies
and the desire to afford employment opportunities to all Louisiana
citizens, the Louisiana Legislature enacts the provisions of this Title
within the Code of Criminal Procedure.
Acts 2014, No. 145, §1. |
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Art. 972. Definitions
As used in this Title:
(1) "Expunge a record" means 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.
(2) "Expungement by redaction" provides for the expungement of
records of a person who is arrested or convicted with other persons who
are not entitled to expungement and involves the removal of the name or
any other identifying information of the person entitled to the
expungement and otherwise retains the records of the incident as they
relate to the other persons.
(3) "Interim expungement" means to expunge a felony arrest from
the criminal history of a person who was convicted of a misdemeanor
offense arising out of the original felony arrest. Only the
original felony arrest may be expunged in an interim expungement.
(4) "Records" includes any incident reports, photographs,
fingerprints, disposition, or any other such information of any kind in
relation to a single arrest event in the possession of the clerk of
court, any criminal justice agency, and local and state law enforcement
agencies but shall not include DNA records.
Acts 2014, No. 145, §1. |
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Art. 973. Effect of expunged
record of arrest or conviction
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, 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.
Acts 2014, No. 145, §1. |
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Art. 974. Dissemination of
expunged records by third parties; court order
A. A private third-party entity, excluding a news-gathering
organization, that compiles and disseminates criminal history
information for compensation shall not disseminate any information in
its possession regarding an arrest, conviction, or other disposition
after it has received notice of an issuance of a court order to expunge
the record of any such arrest or conviction. The provisions of
this Paragraph shall not apply to private third-party entities which are
regulated by the Fair Credit Reporting Act (15 U.S.C. §1681 et seq.) or
the Gramm-Leach-Bliley Act (15 U.S.C. §6801-6809).
B. The person obtaining the expungement shall send notice of the
order of expungement by certified or registered mail with return receipt
requested and a certified copy of the order of expungement.
C. A private third-party entity that publicly disseminates
criminal history information in violation of this Article after having
received notice as provided for in Paragraph B of this Article, may be
liable for any actual damages, court costs, and attorney fees that are
incurred by the person whose criminal history was disseminated.
Acts 2014, No. 145, §1. |
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Art. 975. Individuals
incarcerated; ineligible to file motion to expunge records
Notwithstanding any other provision of law to the contrary, a person in
the custody of the Department of Public Safety and Corrections, or
incarcerated in any correctional facility shall not be permitted to file
a motion to expunge a record of an arrest which did not result in a
conviction or to expunge a record of an arrest and conviction of a
misdemeanor or felony offense.
Acts 2014, No. 145, §1. |
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Art. 976. Motion to expunge record of
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.
(3) Prosecution was instituted and such
proceedings have been finally disposed of by dismissal, sustaining of a
motion to quash, or acquittal.
B. Pursuant to R.S. 15:578.1, no person
arrested for a violation of R.S. 14:98 (operating a vehicle while
intoxicated) or a parish or municipal ordinance that prohibits operating
a vehicle while intoxicated, impaired, or while under the influence of
alcohol, drugs, or any controlled dangerous substance, and placed by the
prosecuting authority into a pretrial diversion program, shall be
entitled to an expungement of the record until five years have elapsed
since the date of arrest for that offense.
C. The motion to expunge a record of arrest
that did not result in a conviction of a misdemeanor or felony offense
shall be served pursuant to the provisions of Article 979.
Acts 2014, No. 145, §1; Acts 2015, No. 200,
§1. |
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Art. 977. Motion to expunge a record of
arrest and conviction of a misdemeanor offense
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.
B. The motion to expunge a record of arrest
and conviction of a misdemeanor offense shall be served pursuant to the
provisions of Article 979 of this Code. C. No person shall be entitled
to expungement of a record under any of the following circumstances:
(1) The misdemeanor conviction arose from
circumstances involving or is the result of an arrest for a sex offense
as defined in R.S. 15:541, except that an interim expungement shall be
available as authorized by the provisions of Article 985.1 of this Code.
(2) The misdemeanor conviction was for
domestic abuse battery. (
3) The misdemeanor conviction was for
stalking (R.S. 14:40.2).
D.(1) Expungement of a record of arrest and
conviction of a misdemeanor offense shall occur only once with respect
to any person during a five-year period, unless the person was sentenced
pursuant to Article 894(B) of this Code.
(2) Expungement of a record of arrest and
conviction of a misdemeanor offense of operating a vehicle while
intoxicated shall occur only once with respect to any person during a
ten-year period. Acts 2014, No. 145, §1; Acts 2015, No. 151, §1, eff.
June 23, 2015; Acts 2015, No. 200, §1. |
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Art. 978. Motion to expunge record of arrest and conviction of a felony
offense
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 either of the following apply:
(1) The conviction was set aside and the prosecution was dismissed
pursuant to Article 893(E) of this Code.
(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.
B. No expungement shall be granted nor shall a person be permitted to
file a motion to expunge the record of arrest and conviction of a felony
offense if the person was convicted of the commission or attempted
commission of any of the following offenses:
(1) A crime of violence as defined by or enumerated in R.S. 14:2(B).
(2)(a) Notwithstanding any provision of Article 893 of this Code, a sex
offense or a criminal offense against a victim who is a minor as each
term is defined by R.S. 15:541, or any offense which occurred prior to
June 18, 1992, that would be defined as a sex offense or a criminal
offense against a victim who is a minor had it occurred on or after June
18, 1992.
(b) Any person who was convicted of carnal knowledge of a juvenile (R.S.
14:80) prior to August 15, 2001, is eligible for an expungement pursuant
to the provisions of this Title if the offense for which the offender
was convicted would be defined as misdemeanor carnal knowledge of a
juvenile (R.S. 14:80.1) had the offender been convicted on or after
August 15, 2001. The burden is on the mover to establish that the
elements of the offense of conviction are equivalent to the current
definition of misdemeanor carnal knowledge of a juvenile as defined by
R.S. 14:80.1. A copy of the order waiving the sex offender registration
and notification requirements issued pursuant to the provisions of R.S.
15:542(F) shall be sufficient to meet this burden.
(3) A violation of the Uniform Controlled Dangerous Substances Law,
except for any of the following which may be expunged pursuant to the
provisions of this Title:
(a) A conviction for possession of a controlled dangerous substance as
provided for in R.S. 40:966(C), 967(C), 968(C), or 969(C), or 970(C).
(b) A conviction for possession of a controlled dangerous substance with
the intent to distribute.
(c) A conviction for a violation of the Uniform Controlled Dangerous
Substances Law which is punishable by a term of imprisonment of not more
than five years.
(d) A conviction for a violation of the Uniform Controlled Dangerous
Substances Law which may be expunged pursuant to Article 893(E).
(4) The conviction was for domestic abuse battery.
C. The motion to expunge a record of arrest and conviction of a felony
offense shall be served pursuant to the provisions of Article 979 of
this Code.
D. Expungement of a record of arrest and conviction of a felony offense
shall occur only once with respect to any person during a fifteen-year
period.
Acts 2014, No. 145, §1; Acts 2015, No. 151, §1, eff. June 23, 2015; Acts
2015, No. 200, §1. |
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Art. 979. Service of motion to expunge a record
A. The clerk of court shall serve notice of the motion of expungement by
United States mail or electronically upon the following entities:
(1) The district attorney of the parish of conviction.
(2) The Louisiana Bureau of Criminal Identification and Information.
(3) The arresting law enforcement agency.
B. When service is made by United States mail, a certificate of service
shall be filed into the record indicating the date the motion was placed
in the United States mail for service.
Acts 2014, No. 145, §1; Acts 2015, No. 200, §1. |
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Art. 980. Contradictory hearing
A. Any entity named in Article 979 of this Code that receives notice of
the motion may object to the granting of a motion to expunge a record.
B.(1) Except as provided in Subparagraph (2) of this Paragraph, an
objecting party shall file an affidavit of response with reasons for the
objection in the record with service to the defendant within sixty days
from the date of service of the motion and specifically state the
grounds for the objection.
(2) If the Louisiana Bureau of Criminal Identification and Information
objects to the granting of the motion to expunge a record, it shall file
an affidavit of response with reasons for the objection in the record
with service to the defendant within one hundred and twenty days from
the date of the service of the motion until August 1, 2015. On August 1,
2015, and thereafter, if the Louisiana Bureau of Criminal Identification
and Information objects to the granting of the motion to expunge a
record, it shall file an affidavit of response with reasons for the
objection in the record with service to the defendant within sixty days
from the date of the service of the motion.
C. The court may grant an extension of time to file an objection not to
exceed thirty days from the expiration of the original sixty days for a
party to object.
D. Any objection timely filed shall have a contradictory hearing. If an
objection is timely filed, the district attorney or an objecting party
shall request that the matter be set for a contradictory hearing. A
notice of hearing shall be served on the defendant and those persons
provided for in Article 979 of this Code.
E. The objecting agency must show by a preponderance of the evidence why
the motion of expungement should not be granted.
F. If no objection is filed by an agency listed under Article 979 of
this Code, the defendant may waive the contradictory hearing, and the
court shall grant the motion to expunge the record if the court
determines that the mover is entitled to the expungement in accordance
with law.
G. Any agency listed under Article 979 of this Code may expressly waive
its time period to object by filing a formal "No Opposition" into the
record.
Acts 2014, No. 145, §1; Acts 2015, No. 200, §1. |
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Art. 981. Judgment granting motion to expunge a record of arrest or
conviction; execution
A judgment ordering expungement of a record of arrest or of conviction
of a misdemeanor or felony offense shall be served as provided for in
Code of Criminal Procedure Article 982. The judgment shall not affect
any persons or other entities set forth in Code of Criminal Procedure
Article 979 or 982 who have not been served with the motion and judgment
ordering the expungement of a record.
Acts 2014, No. 145, §1. |
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Art. 982. Service of order and judgment of expungement
The clerk of court shall serve the order and judgment of expungement of
a record by United States mail or electronically upon all of the
following entities:
(1) The district attorney of the parish of conviction.
(2) The Louisiana Bureau of Criminal Identification and Information.
(3) The sheriff of the parish of conviction.
(4) The arresting agency.
Acts 2014, No. 145, §1. |
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Art. 983. Costs of expungement of a record; fees; collection;
exemptions; disbursements
A. Except as provided for in Articles 894 and 984 of this Code, the
total cost to obtain a court order expunging a record shall not exceed
five hundred fifty dollars.
B. The nonrefundable processing fees for a court order expunging a
record shall be as follows:
(1) The Louisiana Bureau of Criminal Identification and Information may
charge a processing fee of two hundred fifty dollars for the expungement
of any record of arrest when ordered to do so by the court in compliance
with the provisions of this Title.
(2) The sheriff may charge a processing fee of fifty dollars for the
expungement of any record of arrest when ordered to do so by the court
in compliance with the provisions of this Title.
(3) The district attorney may charge a processing fee of fifty dollars
for the expungement of any record of arrest when ordered to do so by the
court in compliance with the provisions of this Title.
(4) The clerk of court may charge a processing fee not to exceed two
hundred dollars to cover the clerk's costs of the expungement.
C. The clerk of court shall collect all processing fees at the time the
motion for expungement is filed.
D.(1) The clerk shall immediately direct the collected processing fee
provided for in Subparagraph (B)(1) of this Article to the Louisiana
Bureau of Criminal Identification and Information, and the processing
fee amount shall be deposited immediately upon receipt into the Criminal
Identification and Information Fund.
(2) The clerk shall immediately direct the collected processing fees
provided for in Subparagraphs (B)(2) and (3) of this Article to the
sheriff and the district attorney, and the processing fee amount shall
be remitted immediately upon receipt in equal proportions to the office
of the district attorney and the sheriff's general fund.
E. The processing fees provided for by this Article are nonrefundable
and shall not be returned even if the court does not grant the motion
for expungement.
F. An applicant for the expungement of a record shall not be required
to pay any fee to the clerk of court, the Louisiana Bureau of Criminal
Identification and Information, sheriff, the district attorney, or any
other agency to obtain or execute an order of a court of competent
jurisdiction to expunge the arrest from the individual's arrest record
if a certification obtained from the district attorney is presented to
the clerk of court which verifies that the applicant has no felony
convictions and no pending felony charges under a bill of information or
indictment and at least one of the following applies:
(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 against the applicant
was dismissed or the district attorney declined to prosecute the case
prior to the time limitations prescribed in Chapter 1 of Title XVII of
the Code of Criminal Procedure, and the applicant did not participate in
a pretrial diversion program.
(3) The applicant was arrested and was not prosecuted within the time
limitations prescribed in Chapter 1 of Title XVII of the Code of
Criminal Procedure and did not participate in a pretrial diversion
program.
(4) The applicant was determined to be factually innocent and entitled
to compensation for a wrongful conviction pursuant to the provisions of
R.S. 15:572.8.
G. Notwithstanding any other provision of law to the contrary, a
juvenile who has successfully completed any juvenile drug court program
operated by a court of this state shall be exempt from payment of the
processing fees otherwise authorized by this Article.
Acts 2014, No. 145, §1. |
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Art. 984. Additional requirements for the expungement of records
involving the operation of a vehicle while intoxicated; additional fee
A. A person convicted of operating a vehicle while intoxicated shall be
required to supplement the motions required in this Title with proof in
the form of a certified letter from the Department of Public Safety and
Corrections, office of motor vehicles, that the person has complied with
the requirements of this Article. The certified letter shall be attached
to the motion to expunge the record of arrest and conviction for
operating a vehicle while intoxicated.
B. The court shall order the clerk of court to mail to the Department of
Public Safety and Corrections, office of motor vehicles, all of the
following as provided by the defendant:
(1) A certified copy of the record of the plea of guilty or nolo
contendere.
(2) Fingerprints of the defendant.
(3) Proof that the defendant meets the requirements as set forth in
Article 556 or 556.1 of this Code which shall include the defendant's
date of birth, social security number, and driver's license number.
C. An additional fifty-dollar court cost shall be assessed at this time
against the defendant and paid to the Department of Public Safety and
Corrections, office of motor vehicles, for the costs of storage and
retrieval of the records. The court cost provided by this Paragraph
shall be submitted to the department regardless of whether the clerk of
court is submitting this matter to the department pursuant to Paragraph
B or D of this Article.
D. In lieu of forwarding the items listed in Paragraph B of this
Article, the clerk of court may send a copy of the letter issued by the
department pursuant to Subparagraph (B)(1) of Article 894 if the clerk
had previously submitted records of the plea to the department pursuant
to that Article.
Acts 2014, No. 145, §1; Acts 2015, No. 200, §1. |
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Art. 985. Expungement by redaction of records with references to
multiple individuals
A. If a record includes the name of more than one individual and one or
more of the individuals is entitled to an expungement of an arrest or
conviction pursuant to the provisions of this Title, any individual
entitled to an expungement may petition the court to have records
related to the arrest or conviction of the individual expunged by
redaction.
B. If the court grants the expungement by redaction, the name of the
individual and all other identifying information regarding the
individual granted the expungement by redaction shall be redacted from
all records regarding the arrest and conviction. The redacted records
shall be available for public access.
C. The clerk of court shall not be liable for any damages resulting to
any person or entity as a consequence of expunging or redacting or for
the failure to expunge or redact any record where the expungement order
does not specifically identify all locations of the records to be
expunged or specify the information to be redacted.
Acts 2014, No. 145, §1. |
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Art. 985.1. Interim motion to expunge a felony arrest from criminal
history in certain cases resulting in a misdemeanor conviction
A. A person may file an interim motion to expunge a felony arrest from
his criminal history when that original arrest results in a conviction
for a misdemeanor. In such cases, only the original felony arrest may
be expunged.
B. The interim motion to expunge a felony arrest which results in a
misdemeanor conviction from criminal history is separate and distinct
from an expungement of a final conviction pursuant to Articles 976,
977, and 978 of this Code.
C. Except as provided in Paragraph D of this Article, an interim motion
to expunge a felony arrest from criminal history shall follow the same
procedures and fees established pursuant to the provisions of Article
979 et seq of this Code.
D. An interim motion to expunge shall not be subject to the time
limitations provided for in Articles 977(A)(2) or 978(A)(2) of this
Code, and there shall be no restriction on the number of interim
expungements which may be granted.
Acts 2014, No. 145, §1. |
The Following is the prior law on expungements that was in effect until July 31,
2014.
I. Generally
�Expunge� To destroy; blot out; obliterate; erase; efface designedly;
strike out wholly. The act of physically destroying information � including
criminal records � in files, computers, or other depositories. Black�s Law
Dictionary, Sixth Edition.
In Louisiana, the procedure commonly referred to as expungement is governed
by LSA-R.S. 44:9. This statute governs expungements of violations of municipal
and parish ordinances, misdemeanors, and felonies. The
Louisiana expungement process and remedy
allowed by law are determined by the type of violation or crime and the nature of the
acquittal, i.e., an acquittal obtained pursuant to Article 893 or 894 of the
Code of Criminal Procedure.
The expungement statute has been amended and changed many times without any
thought as to how the changes will integrate with the rest of the statute. As a
result, the statute is convoluted and ambiguous, at best, and leaves many
questions about its remedies and procedures. However, since the purpose of 44:9
is remedial, rather than penal, and it is to be liberally construed to make the
statutory rule apply in more situations than would be the case under strict
construction. State v. Boniface, 369 So.2d 115 (La. 1979). This liberal
construction is in favor of those individuals entitled to benefits of the
statute. Ibid. It should not be used to defeat the intention of the legislature.
Ibid. Therefore, in understanding the procedures and remedies of 44:9, one must
interpret the statute with such a construction in mind.
There are two major distinctions to keep in mind in order to understand
Louisiana�s expungement statute: 1) �expungement� and �destruction�
are not synonymous, and 2) an acquittal obtained pursuant to Article 893 or 894
of the Code of Criminal Procedure is treated differently than an acquittal
obtained from trial.
II. Misdemeanors and Violations of Parish or Municipal Ordinances
A. Procedure The procedure to expunge misdemeanors and violations of
municipal and parish ordinances is found at 44:9(A). The decision of whether
to use the felony or misdemeanor procedure is determined by the charge filed,
not the violation stated for the arrest. State v. Sims, 357 So.2d 1095 (La.
1978) .
1. Who May File Any person who has been arrested for the violation of a
municipal or parish ordinance or a misdemeanor
2. Where to File A written motion is to be filed in the district, parish,
or city court in which the violation was prosecuted or in the district court
in the parish where the person was arrested, if no prosecution was
instituted. A contradictory hearing is not statutorily required although one
appellate court has stated that they should be done. See State v. Williams,
536 So.2d 1312, (La. App. 2nd Cir. 1989).
3. Eligibility for Expungement A person is entitled to relief if:
a. The time limitation for the institution of prosecution of the
offense has expired and no prosecution has been instituted; or
b. If a prosecution has been instituted and the proceedings were
finally resolved by dismissal, sustaining a motion to quash, or an
acquittal. [The acquittal referenced here does not include an acquittal
obtained pursuant to Article 894 of the Code of Criminal Procedure. Such
an acquittal is addressed at 44:9(E)(3).]
B. Relief Available If the court finds that the mover is eligible for
expungement,
1. It shall order all agencies and law enforcement offices having record
of the arrest, whether on microfilm, computer card or tape, or on any
photographic, electronic, or mechanical method of storing data, to destroy
any record of arrest, photograph, fingerprint, or any other information of
any and all kinds or descriptions.
2. The court shall also order such custodians of records to file a sworn
affidavit to the effect that the records have been destroyed and that no
notations or references have been retained in the agency�s central
repository which will or might lead to the inference that any record ever
was on file with any agency or law enforcement office. The original of such
affidavit shall be kept by the court and a copy shall be retained by the
affiant agency, which copy shall not be a public record and shall not be
open for public inspection but rather shall be kept under lock and key and
maintained only for internal recordkeeping purposes.
C. DWIs The last sentence of subsection 44:9(A)(2) states that it does
not apply to arrests for a first or second violation of any ordinance or
statute making criminal the driving of a motor vehicle while under the
influence of alcoholic beverages or narcotic drugs, as denounced by R.S. 14:98
(Operating a Vehicle While Intoxicated) or 98.1 (Underage Driving Under the
Influence). This very language, with the exception of �or 98.1,� has been
decreed to be unconstitutional as a denial of equal protection because it was
found not to be rationally related to a legitimate state interest. State v.
Bradley, 360 So.2d 858 (La. 1978). The inclusion of 14:98.1 (Underage Driving
Under the Influence) should not alter this analysis. Therefore, persons
arrested for DWI are eligible for expungement if they meet the requirements
outlined above. [Note that DWI acquittals obtained pursuant to Article 894 of
the Code of Criminal Procedure are not covered here. They are addressed in
44:9(E)(3).]
D. There is no express provision to expunge misdemeanors when a prosecuting
authority declines to prosecute as there is for felonies and certain
misdemeanors. Liberal construction of the statute should allow for such, but
it may be prudent to have the prosecution instituted and dismissed, simply to
comply with the express wording of the statute, if the defendant does not want
to wait for the time to lapse for the institution of the prosecution.
III. Felonies and violations of 14:34.2 (Battery of a Police Officer),
14:34.3 (Battery of a School Teacher), or 14:37 (Aggravated Assault)
A. Procedure The procedure to expunge felonies and violations of 14:34.2
(Battery of a Police Officer), 14:34.3 (Battery of a School Teacher), or 14:37
(Aggravated Assault) is found at 44:9(B).
1. Who May File Any person who has been arrested for the violation of a
felony or a violation of 14:34.2 (Battery of a Police Officer), 14:34.3
(Battery of a School Teacher), or 14:37 (Aggravated Assault).
2. Where to File A written motion is to be filed in the district court in
the parish where the person was arrested. A contradictory hearing is
required with the district attorney and the arresting law enforcement
agency.
3. Eligibility for Expungement A person is entitled to relief if:
a. The district attorney declines to prosecute, or the prosecution has
been instituted and such proceedings have been finally disposed of by
acquittal, dismissal, or sustaining a motion to quash [The acquittal
referenced herein does not include an acquittal obtained pursuant to
Article 893 or 894 of the Code of Criminal Procedure. Such an acquittal is
addressed at 44:9(E)(1) & (3).]; and
b. The record of arrest and prosecution for the offense is without
substantial probative value as a prior act for any subsequent prosecution.
This is almost always the case since only convictions, not acquittals, are
admissible into evidence. According to State v. M.K.O., 36,524-CA (La.
App. 2 Cir., 12/18/02) 833 So.2d 1265, 1267:
�Louisiana courts rely on the defendant's presumption of innocence
under our Constitution and the principle of �fundamental fairness� to
conclude that the defendant is entitled to expungement of an arrest
record, and the court is required by law to grant relief, if there has
been a dismissal of the offense. The statute requires a contradictory
hearing with the arresting agency prior to a ruling on the motion by the
trial court.�
B. Relief Available If, after the contradictory hearing, the court finds
that the mover is entitled to the relief sought, it shall order all law
enforcement agencies to expunge the record of the same. This subsection does
not expressly provide for the destruction of records. 44:9 provides for the
expungement (removal from public access) of arrest records in certain
instances; it does not provide for the destruction of felony arrest records.
See State v. Expunged Records Number 249,044, 2002-589 (La. App. 3 Cir.,
12/11/02) 833 So.2d 553.
IV. Any Felony Not Prosecuted Within the Time Allowed by Law
A. Procedure The procedure to expunge any felony not prosecuted within the
time allowed by law is found at 44:9(C).
1. Who May File Any person who has been arrested for the violation of a
felony
2. Where to File A written motion is to be filed in the district court in
the parish where the person was arrested. A contradictory hearing is
required with the arresting agency only
3. Eligibility for Expungement A person is entitled to relief if the time
limitation for the institution of the prosecution has expired with no
prosecution ever having been instituted
B. Relief Available If, after the contradictory hearing, the court finds
the mover is entitled to the relief sought, it shall order all law enforcement
agencies to expunge the record of the same. This subsection does not expressly
provide for the destruction of records. 44:9 provides for the expungement
(removal from public access) of arrest records in certain instances; it does
not provide for the destruction of felony arrest records. See State v.
Expunged Records Number 249,044, 2002-589 (La. App. 3 Cir., 12/11/02) 833
So.2d 553.
C. Information that May Be Retained If expungement is ordered, the
arresting agency may preserve the name and address of the person arrested and
the facts of the case for investigative purposes only.
V. Felony Acquittals Obtained Pursuant to Article 893 of the Code of Criminal
Procedure
A. Same as the procedure outlined above in section III, with the following
exceptions:
1. The court may not order the destruction of records. It may order only
the removal of records from public access. �Expungement� is defined in
the statute in subsection G. as the removal of a record from public access,
not the destruction of the record. 44:9 provides for the expungement
(removal from public access) of arrest records in certain instances; it does
not provide for the destruction of felony arrest records. See State v.
Expunged Records Number 249,044, 2002-589 (La. App. 3 Cir., 12/11/02) 833
So.2d 553.
2. An expunged record is confidential, but remains available for use by
law enforcement agencies, criminal justice agencies, the Louisiana State
Board of Medical Examiners, the Louisiana State Board of Nursing, the
Louisiana State Board of Dentistry, or the Louisiana State Board of
Examiners of Psychologists.
B. Restoration of Rights Upon the entry of the order of expungement, all
rights which were lost or suspended by virtue of the conviction shall be
restored and the person shall be treated in all respects as not having been
arrested or convicted unless otherwise provided in the statute or otherwise
provided in the Code of Criminal Procedure Article 893 and 894.
VI. Misdemeanor Acquittals Obtained Pursuant to Article 894 of the Code of
Criminal Procedure
A. Same as the procedure outlined above in section II, with the exception
that no destruction of the record shall be ordered for any conviction for a
first or second violation of any ordinance or statute making criminal the
driving of a motor vehicle while under the influence of alcoholic beverages or
narcotic drugs, as denounced by R.S. 14:98 or 98.1. Even considering State v.
Bradley, supra, this provision most likely will be deemed constitutional since
the records will be needed as a prior offense in a multiple offender
prosecution, and the records will be removed from public access, with the
exception of those agencies listed in subsection G of 44:9.
B. Restoration of Rights Upon the entry of the order of expungement, all
rights which were lost or suspended by virtue of the conviction shall be
restored and the person shall be treated in all respects as not having been
arrested or convicted unless otherwise provided in this statute or otherwise
provided in the Code of Criminal Procedure Article 893 and 894.
VII. Crimes That Cannot Be Expunged
Subsection 44:9(E)(2) states that no court shall order the expungement or
destruction of any record of the arrest and prosecution of any person convicted
of a sex offense as defined by R.S. 15:542(E), involving a child under the age
of 17 years. This provision shall apply to all records of any proceedings,
order, judgment, or other action under Code of Criminal Procedure Article 893.
VIII. Persons Who Cannot Move for Expungement
Subsection H of 44:9 states that a convicted felon, while in the custody of
the Secretary of the Department of Public Safety and Corrections, shall have no
right or standing to petition the court for expungement. Presumably, this
applies regardless of whether the arrest or crime to be expunged has anything to
do with the reason for incarceration.
IX. Records Held by the Department of Public Safety and Corrections
Subsection F of 44:9 states that, for investigative purposes only, the
Department of Public Safety and Corrections may maintain a confidential,
nonpublic record of the arrest and disposition. This information may be
released, upon specific request and on a confidential basis, to any law
enforcement agency, criminal justice agency, the Louisiana State Board of
Medical Examiners, the Louisiana State Board of Nursing, the Louisiana State
Board of Dentistry, or the Louisiana State Board of Examiners of Psychologists.
Such receiving agency shall maintain the confidentiality of such record.
An order of destruction would apply, nevertheless, to the Department of
Public Safety and Corrections since nothing excepts its information gathering
from the expungement process outlined in 44:9. However, this provision does
create a central location for information that may be accessed by the agencies
specified in subsection F concerning not only convictions, but felony acquittals
obtained pursuant to Article 893 of the Code of Criminal Procedure and DWI
acquittals obtained pursuant to Article 894.
X. Availability of Records to Employers of Health Care Providers
Subsection 44:9(E)(4) allows a health care provider to request criminal
records on potential employees, even expunged records. This also allows the
employer to discover the criminal convictions of applicants since the applicants
are not required to disclose their arrests or convictions. See 44:9(I).
XI. Disclosure of Expunged Arrests and Convictions
Subsection I of 44:9 states that except for the agencies listed in subsection
G (law enforcement agencies, criminal justice agencies,
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, the 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, or any person or
entity requesting a record of all criminal arrests and convictions pursuant to
R.S. 15:587.1 which deal with positions that supervise children), no person whose record of arrest or conviction has
been expunged shall be required to disclose that he was arrested or convicted or
that the record of such arrest or conviction has been expunged, unless otherwise
provided in the statute. For most people, the effect of this provision will be
that a person does not have to tell his employer or potential employer, assuming
his employer is not a subsection G listed agency.
XII. Punishment for Violating 44:9
Subsection D of 44:9 states that whoever violates any provision of the
statute shall be punished by a fine of not more than $250.00 or by imprisonment
of not more than 90 days, or both, if the conviction is for a first violation.
Second and subsequent violations shall be punished by a fine of not more than
$500.00 or imprisonment of six months, or both.
For purposes of this criminal sanction, who is �whoever?� The judge that
orders expungement or destruction when it is not allowed? The lawyer or client
who requests more remedy than that which is allowed? The persons or agencies who
do not remove from public access or destroy records in violation of a court
order? The agencies who expunge the wrong records? Agencies, which are not the
specified agencies of subsection G of 44:9, that require disclosure of expunged
arrests or convictions?
XIII. Applicability
LSA-R.S. 44:9 does not provide for the expungement of accident records.
Primas v. State, DPSC, OMV, 98 CA 0855 (La. App. 1st Cir 5/14/99), 734 So.2d
899.
A Louisiana court has no jurisdiction to expunge offenses committed in
another state. Alario v. State, DPSC, 530 So.2d 1164 (La. App. 5th Cir. 1988).
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We handle expungements throughout North Louisiana in the
following cities and parishes: Shreveport, Caddo Parish, Bossier City, Bossier
Parish, Minden, Webster Parish, Arcadia, Bienville Parish, Ruston, Lincoln
Parish, Monroe, Ouachita Parish, Coushatta, Red River Parish, Springhill,
Webster Parish, Vivian, Caddo Parish, Homer, Claiborne Parish, Mansfield, DeSoto
Parish, Many, Sabine Parish, Jackson Parish. If a city or parish is not listed
that involves your matter, please call us to see if we may be able to assist you
in that area.
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