By: Brad Henry
On May 21, 2012, Governor Haslam signed House Bill 2865 into law. The new law will become effective on July 1, 2012. HB2865 amends Tennessee's expungement law, T.C.A. 40-32-101, to allow a person to request the expungement of certain non-violent criminal convictions. Previously, a person was only eligible for expungement if they had been arrested but not charged, a true bill was not returned by the grand jury, or the case was dismissed. Now, subject to a few conditions, a person may petition a court to destroy the records of a conviction.
HB2865 will allow a person to have a criminal offense expunged from their record for "nonviolent" offenses. A nonviolent offense is defined as:
(A) The offense does not have as an element the use, attempted use, or threatened use of physical force against the person or property of another,
(B) The offense is not 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;
(C) The offense does not involve the use of a firearm;
(D) The offense is not a sex offense for which the offender is required to register as a sexual offender or violent sexual offender under title 40, chapter 39, part 2; and
(E) The offense did not result in causing a victim or victims to sustain a loss of twenty-five thousand dollars ($25,000) or more.
If you have been convicted of a crime and it does not fall within one of the above categories you may request an expungement from the court if:
(A) At the time of filing, the person had never been convicted of any criminal offense, including federal offenses and offenses in other states, other than nonviolent offenses committed during a single criminal episode and that includes the offense for which the person petitions for expungement; and
(B) The person has fulfilled all requirements of the sentence of the court in which the individual was convicted of the nonviolent offense, including:
(i) Payment of all fines, restitution, or other assessments;
(ii) Completion of any term of imprisonment;
(iii) Meeting all conditions of supervised or unsupervised release; and
(iv) If so required by the conditions of the sentence, remaining free from dependency on or abuse of alcohol or a controlled substance for a period of not less than one (1) year.
If you qualify to petition for an expungement you must file a petition requesting relief in the court where the person was convicted. The District Attorney will have 60 days to respond stating whether they agree with the expungement or not. The D.A. and the petitioner will be permitted to file any evidence supporting or attacking the expungement request. The court will make the ultimate decision of whether expungement is appropriate.
If the court denies the petition for expungement a person may reapply after two years have passed. If the petitioner is continually denied their petition must be granted after 10 years of eligibility.
If you meet these qualifications and would like to speak to one of our Knoxville, Tennessee criminal defense attorneys you may contact us anytime.