Expungement

expungementFor many people that have pled guilty or been found guilty a misdemeanor in Tennessee, they soon realize their criminal history follows them long after they leave the courthouse.  Misdemeanors come up on most background checks and many employers use a prospective employees criminal history to determine whether or not to hire.

For those that pled guilty or have been found guilty of a felony, even if nonviolent, the situation is usually much worse.  In addition to experiencing employment difficulty, the individual loses their right to possess a firearm or handgun.  The individual further loses the opportunity to have an open carry weapon permit.

Recently, Governer Bill Haslam enacted House Bill 2685 and it became effective July 1, 2012.  House Bill 2685 amended prior expungement law 40-32-101(g) and allows certain individuals to apply for criminal history expungement that were not eligible prior to its enactment.

Besides allowing many people with misdemeanor convictions the opportunity to have their criminal records expunged for employment purposes, this new law will allow many citizens of Tennessee convicted of a nonviolent felony the opportunity to once again possess and firearm and carry a handgun with a permit.  If a person was convicted of certain nonviolent class E felonies, there will soon be the opportunity to once again hunt, target shoot, collect firearms, and use guns for self-defense purposes.

There are limitations to the new expungement law.  Not all people with prior convictions will be eligible.

  1. If a person has been convicted of ANY crime in another state before they petition for expungement, they are NOT eligible.
  2. If a person has MORE THAN ONE criminal conviction in the State of Tennessee before they petition for expungement, they are NOT eligible.
  3. If a person has been convicted of ANY crime in federal court before they petition for expungement, they are NOT eligible.
  4. DUI convictions are NOT eligible for expungements.
  5. If the person used, attempted to use, or threatened the use of physical force against the person or property of another during their criminal offense, they are NOT eligible.
  6. If the person committed a felony offense that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense, they are NOT eligible.
  7. If the person committed a crime that involved the use of a firearm, they are NOT eligible.
  8. If the person committed a sex offense for which the offender is required to register as a sex offender or violent sex offender, they are NOT eligible.
  9. If the person committed a crime that resulted in a victim or multiple victims to suffer a loss of twenty-five thousand dollars ($25,000) or more, they are NOT eligible.
  10. If the person was sentenced to more than three (3) years in prison, they are NOT eligible.

Additionally, the person convicted of a non-violent expungement eligible offense must (a) have paid all fines, restitution, or other assessments, (b) completed any term of imprisonment, (c) met all conditions of supervised or unsupervised release, and (d) if required by conditions of the sentence, remained free from dependency on or abuse of alcohol or controlled substances for a period of not less than one (1)  year, and (d) five years must have elapsed since all requirements of the conviction were met.

If all conditions of eligibility are met, the person seeking expungement must file a petition for expungement in the county court in which they were convicted of the nonviolent offense.  The form for the petition should be simple enough that most people will be able to fill it out without assistance.  The filing fee of the petition is three hundred fifty dollars ($350.00). The clerk will then serve the petition on the district attorney general for that district.  The district attorney has 60 days to respond to the petition and state whether or not they are in agreement with the request for expungement.  Although the person requesting expungement and the district attorney are allowed to file evidence supporting and negating the expungement request, the final decision rests with the judge.

If the judge denies the expungement request, do not be discouraged.  After two years have passed from the judge’s decision, a person may again petition the court and request their record to be expunged.  This may be done every two years from the date of the judge’s decision to deny expungement.  If the person has been continually denied during the previous four (4) petitions, the judge must grant their petition after ten (10) years of eligibility has lapsed or in other words, on their fifth (5th) petition.

Please contact me for a free consultation if you believe that you meet these qualifications.  Additionally, if you are unsure whether you are eligible for expungement, I can help determine your eligibility.

If you need my assistance during this process, I will work diligently to increase the chance that your criminal record is properly expunged and to ensure that your right to possess a firearm is restored on the first attempt.

You need an attorney who will speak and correspond with the District Attorney about your expungement prior to your court date.  You need an attorney who will argue on your behalf in court so you will have better life opportunities and be able to legally possess a firearm once again.

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