by Jim Golden,
It’s that time of year again- the time where we set goals for our new and improved selves.
Whether it’s to exercise more, lose weight, or chart a new course, studies suggest that less than ten percent of us who set New Year’s resolutions are actually successful. In this article, I will discuss how we can turn the page on our past and set ourselves up for a brighter future.
Many of us have something in our past that we are not proud of. For some, unfortunately, this involves being arrested, or worse, convicted of a crime. Thankfully, not all criminal stains on our record have to be permanent. The Alabama Legislature passed the Record Expungement Designed to Enhance Employment and Eliminate Recidivism (REDEEMER) Act in 2021, which provides an avenue to have some criminal charges and convictions removed from your record.
What Is Expungement?
In the legal context, expungement is the process by which a record of criminal charge or conviction is sealed and hidden from public view. Essentially, an expungement treats a criminal charge or conviction as if it never happened.
What Can Be Expunged?
Cases eligible for expungement can be classified into two categories: 1. Non-Convictions and 2. Convictions.
1. Non-Convictions. A person who has been charged, but not convicted, of a traffic violation, municipal ordinance violation, misdemeanor criminal offense, or felony criminal offense can file to have all records of the charge expunged from their record under certain conditions. After a 90-day waiting period, you can seek an expungement when:
- A charge is dismissed with prejudice (meaning the same charge cannot be filed again in the same court);
- A charge is no billed by a grand jury (meaning an indictment was not returned by the grand jury); or
- You are found not guilty.
- An expungement can also be sought when a charge is nolle prossed without conditions (meaning the prosecutor decides not to pursue the case) or when an indictment has been quashed (voided) and the statute of limitations for refiling the charge has run.
- Additionally, a petition for expungement can be filed for a traffic violation, municipal ordinance violation, misdemeanor criminal offense, or felony criminal offense following a one-year waiting period if you successfully complete a diversion program -such as drug court, mental health court, or veteran’s court.
- If a traffic violation, municipal ordinance violation, or misdemeanor criminal offense is dismissed without prejudice (meaning the charge can be brought again by the prosecutor), expungement can be sought after a one-year waiting period, whereas a five-year waiting period is required for a felony charge dismissed without prejudice.
It is important to recognize that you cannot be charged with any other offense during the previously mentioned waiting periods if you desire an expungement.
2. Convictions
A person convicted of a traffic violation, municipal ordinance violation, or a misdemeanor
criminal offense can seek expungement when:
- All probation or parole requirements have been met;
- All court ordered fines, fees, costs, and restitution have been paid; and
- Three, or more, years have passed since the date of conviction.
As you might expect, the requirements to get a felony conviction expunged are more stringent.
Before expungement for a felony conviction is a possibility, you must have been granted a
certificate of pardon with restoration of civil and political rights for the conviction from the
Board of Pardons and Paroles, all civil and political rights that were forfeited as a result of the
conviction have been restored, and 180 days have passed from the date of the issuance of the
certification of pardon.
What Is the Process?
With the right assistance, the process to achieve an expungement can be navigated without issue.
A Petition for Expungement of Records must be filed in the circuit court where the original casecwas heard. A certified record of arrest, disposition, or case action summary for the offense,cwhich can normally be obtained from the court clerk’s office, and a certified criminal recordcfrom the Alabama Law Enforcement Agency must also be included with your petition.
Additionally, a petition must include a sworn statement attesting that you have fulfilled all requirements and state whether an expungement has previously been sought. Additionally, your expungement petition must be served on the district attorney that brought the charge or prosecuted the case and the law enforcement agency that made the arrest. The DA is
required to make reasonable efforts to notify the victim of the offense, and together, they have 45 days to make any objection to the expungement.
How Much Does It Cost?
In addition to reasonable attorney fees, an administrative filing fee of $500 is imposed by the
state and must be paid at the time of filing your expungement petition. Thankfully, this administrative filing fee can be waived by the court upon a showing of hardship.
Who Is Eligible?
The REDEEMER Act allows unlimited expungements for charges of a traffic violation, a
municipal ordinance violation, a misdemeanor criminal offense, or a felony criminal offense that was dismissed with prejudice, no billed by a grand jury, nolle prossed without conditions, indictment was quashed and the statute of limitations for refiling the charge have run, or you
were found not guilty. Only one expungement is available for a criminal conviction that has been pardoned, while two expungements are allowed for charges dismissed as a result of successfully completing a diversion program.
An expungement is not available if you were operating a commercial vehicle at the time of the offense. Furthermore, expungements are not obtainable for convictions of a violent offense, sex offense, crimes of moral turpitude, or a serious traffic offense. Note: a DUI will be classified as a serious traffic offenses effective July 1, 2023.
What Are the Benefits of Expungement?
Court records are generally considered public records and accessible by everyone. Therefore, it is likely that your criminal record can be viewed by anyone who seeks out to do so. The expungement process gives you the opportunity to potentially erase a record and not have to disclose it going forward.
The REDEEMER Act specifically addresses your duty to disclose the fact of your criminal record following an expungement and states, “After the expungement of records pursuant … the
proceedings regarding the charge shall be deemed never to have occurred. The petitioner whose record was expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application” [subject to
statutory limitations].
Simply put, an expungement offers you the chance to put your past in the past!
This blog article was prepared by Jim Golden, an associate attorney with Greg Varner & Associates, P.C. If you have questions about this article, you may contact Mr. Golden by email at jgolden@gregvarnerlaw.com or telephone at 888-378-0246.
