In 2014 The Alabama State Legislature passed a law allowing, in certain situations, a criminal charge on a person's record to be removed.
What is an expungement and what charges qualify? It is the removal of criminal charges from a person's criminal history record accessible for public purposes, such as an employee background check. Expungement is not applicable to a criminal conviction or any violation of the statutes, rules or regulations of the Alabama Securities Commission. Any expunged records are still available to the court or law enforcement.
A non-felony charge (a misdemeanor criminal offense, a violation, a traffic violation OR a municipal ordinance violation) may be expunged if one of the following criteria are met:
- the charge was dismissed with prejudice
- the charge was no billed by a grand jury
- the defendant was found not guilty of the charge
- the charge was dismissed without prejudice more than two years ago, has not been refiled, and the defendant has not been convicted of any other felony or misdemeanor crime, any violation, or any traffic violation, excluding minor traffic violations, during the previous two years
A non-violent felony charge may be expunged if:
- if the charge was dismissed with prejudice
- the charge was no billed by a grand jury
- the defendant was found not guilty of the charge
- the charge was dismissed after successful completion of a drug court program, mental health court program, diversion program, veteran's court, or any court-approved deferred prosecution program AND more than one year has passed from the successful completion of the program
- if the charge was dismissed without prejudice more than five years ago, was not refiled, and the petitioner has not been convicted of any other felony or misdemeanor crime, any violation, or any traffic violation, excluding minor traffic violations, during the previous five years
- ninety days have passed from the date of dismissal with prejudice, no-bill, acquittal, or nolle prosequi and the charge has not been refiled
If my case was dismissed without prejudice, is there a waiting period before I can seek an expungement? Yes. If your case was a felony offense and it was dismissed without prejudice, you must wait 5 years from the date of dismissal before making application. Additionally, you cannot have been convicted of any other criminal offenses (excluding minor traffic offenses) or had the original case refiled.
If my case was dismissed with prejudice, is there a waiting period before I can seek an expungement? Yes. If your case was a felony offense and it was dismissed with prejudice, you must wait 90 days from the date of dismissal before making application. Additionally, you cannot have been convicted of any other criminal offenses (excluding minor traffic offenses) or had the original case refiled.
What are the costs associated with filing an application for expungement? The new Alabama expungement law requires an administrative filing fee of $300.00 to file the expungement petition. This is in addition to any court costs or docket fee imposed by your local Circuit Court Clerk. For example, Madison County requires $300.00 filing fee. Attorney's fees vary depending on the complexity of the request – one municipal case versus several felony charges with an anticipated hearing. Each client's situation is different, so law offices typically do not quote a flat rate for expungement services but consider individual need upon consultation.
Will a hearing be required? If so, what information does the Court consider? Possibly. If an objection is filed within 14 days, a hearing will be set. Code of Alabama §15-27-5 outlines the factors to be weighed below:
Objections; hearing; ruling.
“(a) If the prosecuting authority or victim files an objection to the granting of a petition under this chapter, the court having jurisdiction over the matter shall set a date for a hearing no sooner than 14 days from the filing of the objection. The court shall notify the prosecuting authority and the petitioner of the hearing date. In the discretion of the court, the court shall consider the following factors:
(1) Nature and seriousness of the offense committed.
(2) Circumstances under which the offense occurred.
(3) Date of the offense.
(4) Age of the person when the offense was committed.
(5) Whether the offense was an isolated or repeated incident.
(6) Other conditions which may have contributed to the offense.
(7) An available probation or parole record, report, or recommendation.
(8) Whether the offense was dismissed or nolle prossed as part of a negotiated plea agreement and the petitioner plead guilty to another related or lesser offense.
(9) Evidence of rehabilitation, including good conduct in prison or jail, in the community, counseling or psychiatric treatment received, acquisition of additional academic or vocational schooling, successful business or employment history, and the recommendation of his or her supervisors or other persons in the community.
(10) Any other matter the court deems relevant, which may include, but is not limited to, a prior expungement of the petitioner's records.
(b) A hearing under subsection (a) shall be conducted in a manner prescribed by the trial judge and shall include oral argument and review of relevant documentation in support of, or in objection to, the granting of the petition. The Alabama Rules of Evidence shall apply to the hearing. Leave of the court shall be obtained for the taking of witness testimony relating to any disputed fact.
(c) There is no right to the expungement of any criminal record, and any request for expungement of a criminal record may be denied at the sole discretion of the court. The court shall grant the petition if it is reasonably satisfied from the evidence that the petitioner has complied with and satisfied the requirements of this chapter. The court shall have discretion over the number of cases that may be expunged pursuant to this chapter after the first case is expunged. The ruling of the court shall be subject to certiorari review and shall not be reversed absent a showing of an abuse of discretion.
(d) If no objection to a petition is filed by the prosecuting authority or victim, the court having jurisdiction over the matter may rule on the merits of the petition without setting the matter for hearing. In such cases, the court shall grant the petition if it is reasonably satisfied from the evidence that the petitioner has complied with and satisfied the requirements of this chapter. The court shall have discretion over the number of cases that may be expunged pursuant to this chapter after the first case is expunged.” (Act 2014-292, §5.)
If my petition is granted, what happens next? The Court will issue an order that all records concerning your arrest and the case be expunged (removed) from the records of the court, any agency or official, law enforcement, the Board of Pardons and Paroles, and the district attorney. The records are forwarded to the Alabama Criminal Justice Information Center (ACJIC) in Montgomery where they are retained “indefinitely”.
Do I have to disclose an expungement on your various applications? No. The petitioner whose record was expunged does not have to disclose that fact on an application for employment, credit, or other type of application. However, the petitioner whose record was expunged shall have the duty to disclose the fact of the record and any matter relating thereto to any government regulatory or licensing agency, any utility and its agents and affiliates, or any bank or other financial institution. In these circumstances, the government regulatory or licensing agency, utility and its agents and affiliates, or the bank or other financial institution shall have the right to inspect the expunged records after filing notice with the court. A person applying for a position as a law enforcement or corrections officer must disclose and provide a copy of the expungement to the agency.
Will an expunged charge be listed on my employee background check? Once an order of expungement is granted, that offense will no longer be part of a publicly accessible record used for employee background checks.
Does expungement apply to non-governmental background check services? An order of expungement does not necessarily apply to an unofficial 3rd party background service. However, if a petitioner provides notice to the service that an expungement has been granted, the record may no longer be intentionally disseminated by that entity.
Who can see expunged records? Expunged records may not be used for any non-criminal justice purpose and may only be made available to criminal justice agencies upon acknowledgement of an investigation or other criminal matter involving the person related to the expungement.
Can the police department or courts keep records of the expunged charge? Yes, but it cannot be circulated. Any criminal justice agency with records on an expunged charge, such as arrest records, booking or arrest photos, or references in the State Court's Information System, must be forwarded to the Alabama Law Enforcement Agency. However, a law enforcement agency or official, district attorney or a prosecuting authority, the Alabama Department of Forensic Sciences, or the Department of Human Resources may maintain an investigative file, report, case file, or log which may include any evidence, biological evidence, photographs, exhibits, or information in documentary or electronic form. Once an order of expungement is issued, though, this information cannot be disseminated for a non-criminal justice purpose.
Does an expungement restore my rights to carry a firearm? No. An expungement order shall not entitle an individual to ship, transport, possess, or receive a firearm. Any person whose record of conviction is expunged may have his or her right to ship, transport, possess, or receive a firearm restored by a Certificate of Pardon with Restoration of Civil and Political Rights from the Alabama Board of Pardons and Paroles.
If you have additional questions or would like assistance with filing your application for expungement, contact our office at your convenience to schedule a consultation.