We understand how it goes – you made a mistake, whether it be theft under $1000 or simple possession of drugs. Now, you’re looking to apply for jobs, housing, higher education, or other opportunities, and you’re worried about charges showing up on your criminal record. Thankfully, Tennessee Code § 40-32-101 provides for the destruction of public records recording a criminal offense, or in other words, expunction. Expunction is defined as the removal of a conviction from a person’s criminal record, but you can also have charges you were not convicted of destroyed from public records. If your charges are eligible for expungement, it is an amazing opportunity to wipe your slate clean and start anew.
If all of your charges were dismissed, you may petition the court that holds jurisdiction over your case to destroy any and all public records of the charges. Likewise, if your case went to trial and you were acquitted (found “not guilty”) of all charges, the judge should ask you in court whether you would like to have all public records associated with the charges expunged. But don’t worry, if the judge asked whether you’d like your charges expunged and you answered “no,” you can still petition the court later on to destroy these criminal record(s). For those whose charges were dismissed or who were acquitted, expungement will be fulfilled by the court without any fees.
You may not be able to successfully petition for expungement if you were acquitted of only some charges or if only some of your charges were dismissed. According to TCA §40-32-101 section (a)(1)(E), “a person is not entitled to the expunction of such person’s records if” they were convicted of an offense related to the same criminal episode as the charge in question, including a lesser offense but excluding traffic offenses. Furthermore, if you were indicted on multiple counts in a single criminal episode and were convicted of one or more of the charges, you are not eligible to have the dismissed charges expunged. For example, say you were charged with six counts of assault, but were only convicted of three, while the other three were dismissed. This means that employers or other individuals who conduct a search of your criminal record will be able to see that you were convicted of three assault charges and three assault charges from the same criminal episode of assault were dismissed by the court.
When the court that handled your charges orders the expunction of your criminal record, they will then send a copy of the expunction order to the Tennessee Bureau of Investigation (TBI) for entry into the expunged offender and pretrial diversion database. Please note that while all public records of your criminal record may be expunged, confidential records will be maintained. Release of such records except to law enforcement agencies is a Class A misdemeanor, therefore you can expect these confidential records to be kept private by the government’s agencies.
So, are you still eligible for expungement if you were convicted of criminal charges? In certain cases, yes, but in other cases, no.
Section (g) of TCA § 40-32-101 maps which convictions are and are not eligible for expungement. Please note in advance that section (g) applies only to criminal offenses committed on or after November 1, 1989. Most misdemeanors are eligible for expungement, excluding 45 misdemeanors which are deemed ineligible. Some relevant misdemeanors excluded from consideration for expungement are § 39-15-404, “Allowing person ages 18-21 to consume alcohol on person’s premises”; § 39-13-101(a)(3), “Assault”; and §55-10-401, “Driving under the influence of an intoxicant.” Unfortunately, this means that a DUI conviction cannot be expunged from your criminal record. Some felonies are eligible for expungement if the individual was sentenced to imprisonment for a term of three or less years and has completed their sentence. For example, if you were convicted of §39-17-417(g)(1) for manufacturing, delivering, selling, or possessing between ½ ounce and 10 pounds of marijuana, you can have this charge expunged, provided you successfully completed your sentence. Vandalism, theft under $1000, and accessory after the fact are also examples of the 38 felony convictions that can be expunged from your criminal record.
For misdemeanor and felony convictions eligible for expungement, petitioners must meet certain criteria to have their expunction processed. In order to petition for expungement of eligible convictions, you must have never been convicted of any criminal offense other than the offense for which the petition is filed. However, multiple convictions which resulted from the same criminal episode are considered one offense for the purpose of section (g) expunctions. In other words, if you were convicted of multiple eligible charges during the same criminal episode, you may be eligible to have all such convictions expunged upon a single petition. Furthermore, under section (k) of TCA § 40-32-101, petitioners who were convicted of no more than two offenses which are individually eligible under section (g) may have both convictions expunged if the offenses were two misdemeanors or one felony and one misdemeanor. In addition to having an otherwise clean criminal record, you must wait five years after completing the sentence imposed for the convicted offense(s) before you are able to successfully petition for expunction. This includes not only the completion of a prison term or probation, but also all other requirements of the sentence imposed by the court, such as payment of fines and court costs. If one of the charges you are seeking to have expunged was Drug Fraud, however, then the waiting period between completion of your sentence and eligibility to file an expungement is extended to ten years.
Just like in cases which were dismissed or resulted in acquittal, the court which held jurisdiction over your case will handle your expungement when you want to expunge a conviction. However, unlike in the case of acquittals and dismissals, the court may charge a fee to process expungements for convictions. Once you petition for expungement, the district attorney has sixty days to submit recommendations to the court, which will then consider all evidence and determine whether the petition shall be granted or denied. You haven’t reached the end of the road if your petition is denied, though – two years after the denial, you may petition the court again for expunction.
If you have your criminal record expunged, you will be fully restored to the legal status you held prior to being indicted and/or convicted. “Expunction… means, in contemplation of law, the conviction for the expunged offense never occurred and the person shall not suffer any adverse effects or direct disabilities by virtue of the criminal offense that was expunged” (TCA § 40-32-101). In addition to job, housing, adoption, and other applications, this means that an individual granted expungement who is otherwise legally eligible is able to purchase a firearm and apply for a handgun carry permit. You may need to prove that your criminal record was expunged, in which case a copy of your order of expungement (which you are legally entitled to) is considered sufficient proof that you are no longer under any disability, disqualification, or other adverse consequence as a result of the expunged conviction.
Please refer to section (g) of TCA § 40-32-101 to see a full list of which convictions are eligible and ineligible for expunction.
Tennessee also offers a program called Diversion wherein first-time offenders can avoid serving time or having a criminal record. Upon successful completion of the diversionary period, an individual’s charge(s) can be expunged if the individual returns to court to request an expungement. This request can also be made by the individual’s attorney. Check out our article on diversion from 2020 to learn more about this useful program.
An important addendum: those who were charged with a misdemeanor or felony while protesting a state law or municipal ordinance intended to maintain racial segregation or discrimination are eligible to have their records expunged as well. The charge must fall within certain requirements as described in section (f) of TCA § 40-32-101, which includes dismissed charges and nonviolent charges. This section also provides for the expungement of a deceased person’s charges acquired in the process of protesting racial discrimination when a person with legal authority to act on the behalf of the deceased petitions for the expunction. This means if your parents or grandparents faced criminal charges while protesting racial discrimination, you can have their criminal record cleansed. While museums and other sites dedicated to education are exempted from destruction requirements in these cases, this is still an important step towards equity.
If you or a loved one are seeking to have your criminal record expunged, you can fill out this form and file it with the court that holds jurisdiction over your case. As always, Best & Brock is here to help if you are in the process of petitioning for expungement.