HB161 By Representative Hill RFD Judiciary Rd 1 06-FEB-20

SYNOPSIS: Under existing law, a person charged with a misdemeanor criminal offense, traffic violation, or municipal ordinance violation and certain felony offenses may petition the circuit court to have the criminal record expunged if the charge was dismissed or if he or she meets other limited conditions.

This bill would provide for the expungement of convictions for misdemeanor criminal offenses, traffic violations, and municipal ordinance violations, including those adjudicated as a youthful offender, under limited circumstances.

This bill would also provide for technical revisions.

A BILL TO BE ENTITLED AN ACT

To amend Sections 15-27-1, 15-27-2, 15-27-3, 15-27-6, 15-27-7, 15-27-8, and 15-27-19, Code of Alabama 1975, relating to the expungement of criminal records, to provide for the expungement of convictions for misdemeanor criminal offenses, traffic violations, and municipal ordinance violations, including those adjudicated as a youthful offender, under certain conditions; and to provide for technical revisions.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:Section 1. Sections 15-27-1, 15-27-2, 15-27-3, 15-27-6, 15-27-7, 15-27-8, and 15-27-19, Code of Alabama 1975, are amended to read as follows:

§15-27-1.

"(a) A person who has been charged with a misdemeanor criminal offense, a violation, a traffic violation, or a municipal ordinance violation may file a petition in the criminal division of the circuit court in the county in which the charges were filed, to expunge records relating to the charge in any of the following circumstances:

"(1) When the charge is dismissed with prejudice.

"(2) When the charge has been no billed by a grand jury.

"(3) When the person has been found not guilty of the charge.

"(4) When the charge was dismissed without prejudice more than two years ago, has not been refiled, and the person 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.

"(5) When the person proves by a preponderance of the evidence that the person is a victim of human trafficking, that the person committed the misdemeanor criminal offense, violation, traffic violation, or municipal ordinance violation during the period the person was being trafficked, and that the person would not have committed the offense or violation but for being trafficked. Evidence that a person is a victim of human trafficking may include, but is not limited to, evidence that the person's trafficker was convicted of trafficking the person under Section 13A-6-152 or Section 13A-6-153.

"(6)a. When the charge was dismissed after successful completion of a drug court program, mental health court program, diversion program, veteran's court, or other court-approved deferred prosecution program.

"b. Expungement may be a court-ordered condition of a program listed in paragraph a.

"c. Expungement shall be available under this subdivision immediately if agreed upon by both parties. If no agreement is reached, a petitioner may file a petition no earlier than one year after the successful completion of the program.

"(b) A person who has been convicted, or adjudicated as a youthful offender, of a misdemeanor criminal offense, a traffic violation, or a municipal ordinance violation may file a petition in the criminal division of the circuit court in the county in which the charges were filed or the conviction was entered to expunge records relating to the charge when all of the following circumstances exist:

"(1) All probation or parole requirements have been completed, including the full payment of all fines, costs, restitution, or other court-ordered amounts.

"(2) Three years have passed from the date of conviction.

"(3) The person has no prior conviction for a violent felony offense, as defined in Section 12-25-32.

"(4) The person is not a convicted sex offender.

"(5) The person was not operating a commercial vehicle that required the person to possess a commercial driver's license at the time of the violation that led to the conviction.

"(6) The person was not convicted of any of the offenses enumerated in 49 C.F.R. §383.51.

"(b)(c) The circuit court shall have exclusive jurisdiction of a petition filed under subsection (a) or (b).

§15-27-2.

"(a) A person who has been charged with a felony offense, except a violent offense as defined in Section 12-25-32, may file a petition in the criminal division of the circuit court in the county in which the charges were filed, to expunge records relating to the charge in any of the following circumstances:

"(1) When the charge is dismissed with prejudice.

"(2) When the charge has been no billed by a grand jury.

"(3)a. 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 after one year from successful completion of the program.

"b. Expungement may be a court-ordered condition of a program listed in paragraph a.

"c. Expungement shall be available under this subdivision immediately if agreed upon by both parties. If no agreement is reached, a petitioner may file a petition no earlier than one year after the successful completion of the program.

"(4) The charge was dismissed without prejudice more than five years ago, has not been refiled, and the person 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.

"(5) Ninety days have passed from the date of dismissal with prejudice, no-bill, acquittal, or nolle prosequi and the charge has not been refiled.

"(6) When the person proves by a preponderance of the evidence that the person is a victim of human trafficking, that the person committed the felony offense during the period the person was being trafficked, and that the person would not have committed the felony offense but for being trafficked. Evidence that a person is a victim of human trafficking may include, but is not limited to, evidence that the person's trafficker was convicted of trafficking the person under Section 13A-6-152 or Section 13A-6-153.

"(b) Subsection (a) notwithstanding, convictions for the following offenses, which are defined as a violent offense under subdivision (15) of Section 12-25-32, may be expunged upon a showing that the person committed the felony offense during the period the person was trafficked, and that the person would not have committed the felony offense but for being trafficked:

"(1) Promoting prostitution in the first degree pursuant to Section 13A-12-111.

"(2) Domestic violence in the third degree pursuant to subsection (d) of Section 13A-6-132.

"(3) Production of obscene matter involving a person under the age of 17 years pursuant to Section 13A-12-197.

"(c)(1) A person who has been charged with any felony offense, including a violent offense as defined in Section 12-25-32, may file a petition in the criminal division of the circuit court in the county in which the charges were filed to expunge records relating to the charge if the person has been found not guilty of the charge.

"(2) Records related to violent offenses as defined in Section 12-25-32 may be disclosed to a law enforcement agency for criminal investigation purposes as provided in Section 15-27-7.

"(d) The circuit court shall have exclusive jurisdiction of a petition filed under subsection (a) or subsection (b).

§15-27-3.

"(a) A petition filed under this chapter shall include a sworn statement made by the person seeking expungement under the penalty of perjury stating that the person has satisfied the requirements set out in this chapter and whether he or she has previously applied for an expungement in any jurisdiction and whether an expungement has been previously granted.

"(b) The petitioner shall include a certified record of arrest, disposition, or the case action summary from the appropriate agency for the court record the petitioner seeks to have expunged as well as a certified official criminal record obtained from the Alabama Criminal Justice Information Center. In addition to setting forth grounds for the court to consider, the petitioner shall specify what criminal charges from the record are to be considered, further specify the agency or department that made the arrest and any agency or department where the petitioner was booked or was incarcerated or detained pursuant to the arrest or charge sought to be expunged.

"(c) A petitioner shall serve the district attorney, the law enforcement agency, and clerk of court of the jurisdiction for which the records are sought to be expunged, a copy of the petition, and the sworn affidavit. Upon notification of the petitioner, the district attorney shall make reasonable efforts to notify the victim of the petitioner filing the petition if the case for which the petition was filed qualifies under Section 15-27-1(b). The district attorney shall review the petition and may make reasonable efforts to notify the victim if the petition has been filed seeking an expungement under circumstances enumerated in paragraph a. of subdivision (4) of Section 15-27-2 involving a victim that is not a governmental entity. The district attorney and the victim shall have a period of 45 days to file a written objection to the granting of the petition or the district attorney shall be deemed to have waived the right to object. The district attorney shall serve the petitioner or the petitioner's counsel a copy of the written objection.

§15-27-6.

"(a) Except as provided in Section 15-27-10, upon the granting of a petition pursuant to this chapter, the court, pursuant to Section 15-27-9, shall order the expungement of all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records, except privileged presentence or postsentence investigation reports produced by the Alabama Board of Pardons and Paroles and its officers, records, documents, databases, and files of the district attorney and the Office of Prosecution Services. On July 7, 2014, and for 18 months thereafter, every agency with records relating to the arrest, charge, or other matters arising out of the arrest or charge that is ordered to expunge the records shall certify to the court within 180 days of the entry of the expungement order that the required expungement action has been completed.

"(b) After the expungement of records pursuant to subsection (a), the proceedings regarding the charge shall be deemed never to have occurred. Except as provided in this chapter, the court and other agencies shall reply to any inquiry that no record exists on the matter. 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. 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.

"(c) A petitioner may obtain documentation that an expungement was granted upon filing a notice with the court requesting documentation and establishing proof of identity. The documentation shall be limited to the case number, petitioner's name, a listing of the charges, if requested by the petitioner, and a written certification that the case was expunged that is signed by the circuit clerk or presiding judge.

§15-27-7.

"(a) Upon receipt of the order of expungement, a criminal justice agency in possession of records subject to the order shall immediately forward the records to the Alabama Criminal Justice Information Center State Law Enforcement Agency. The center shall digitally archive the records in a manner prescribed by the Alabama Criminal Justice Information Center Commission and designate the records as protected notwithstanding any other provisions of this chapter. Such The 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, or used in criminal proceedings upon an order of the court for the limited purpose of impeachment after a showing of contradictory testimony by the petitioner. Any expunged records that were added to a federal database shall be requested to be removed and not made available within any interstate criminal database.

"(b) Records expunged under this chapter may not be transmitted to the Federal Bureau of Investigation national criminal records repository. Any record subject to be expunged under this chapter and transmitted to the Federal Bureau of Investigation prior to the expungement of such record shall be requested for withdrawal within the national system by the Alabama Criminal Justice Information Center State Law Enforcement Agency.

§15-27-8.

"Once the records are expunged pursuant to this chapter, the records shall be forwarded to the Alabama Criminal Justice Information Center State Law Enforcement Agency in a manner prescribed by the Alabama Criminal Justice Information Center Commission for purposes of archiving, and the records shall be stored in a manner prescribed by the Alabama Criminal Justice Information Center Commission. The records shall be retained by the Alabama Criminal Justice Information Center State Law Enforcement Agency indefinitely. The Alabama Justice Information Commission shall prepare and present a written report to the Legislature on a yearly basis to describe the type and number of records stored and the conditions of the storage. Records held electronically by the Alabama State Law Enforcement Agency shall be sealed from view and only available by a court order obtained pursuant to this chapter.

§15-27-19.

"The Alabama Criminal Justice Information Center Commission shall adopt rules for the submission of data from criminal justice agencies necessary to complete the criminal history record within the state criminal history repository. Data within the repository shall include all records allowed by federal regulation of state repositories."

Section 2. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Crimes and Offenses

Criminal Law and Procedure

Records

Law Enforcement

Court, Circuit

Expungement

Code Amended