SB14 By Senator Ward RFD Judiciary Rd 1 04-FEB-20

SYNOPSIS: Under current law, a person convicted of a criminal offense may only apply for an expungement in very limited circumstances.

This bill would expand the expungement of criminal records to include convictions of certain misdemeanor offenses, traffic violations, municipal ordinances, and felony offenses.

This bill would also make nonsubstantive, technical revisions to update the existing code language to current style.

Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose.

The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of the amendment. However, the bill does not require approval of a local governmental entity or enactment by a 2/3 vote to become effective because it comes within one of the specified exceptions contained in the amendment.

A BILL TO BE ENTITLED AN ACT

Relating to expungement; to amend Sections 15-27-1, 15-27-2, 15-27-4, 15-27-5, 15-27-7, 15-27-8, 15-27-9, 15-27-10, and 15-27-19, Code of Alabama 1975, to expand the expungement of criminal records to include convictions of certain misdemeanor offenses, traffic violations, municipal ordinances, and felony offenses; to increase the filing fee for petitions for expungement; to make nonsubstantive, technical revisions to update the existing code language to current style; and in connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. This act shall be known and may be cited as the Record Expungement Designed to Enhance Employment and Eliminate Recidivism (REDEEMER) Act.Section 2. Sections 15-27-1, 15-27-2, 15-27-4, 15-27-5, 15-27-7, 15-27-8, 15-27-9, 15-27-10, 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 has been dismissed with prejudice and more than 90 days have passed.

"(2) When the charge has been no billed by a grand jury and more than 90 days have passed.

"(3) When the person has been found not guilty of the charge and more than 90 days have passed.

"(4) When the charge has been nolle prossed without conditions, more than 90 days have passed, and the charge or charges have not been refiled.

"(5) When the indictment has been quashed and the statute of limitations for refiling the charge or charges has expired or the prosecuting agency confirms that the charge or charges will not be refiled.

"(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 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.

"(4) (7) 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) (8) 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.

"(b)(1) Subsection (a) notwithstanding, a person who has been convicted of a misdemeanor 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 and the conviction if all of the following occur:

"a. The person has been granted a certificate of pardon with restoration of civil and political rights for the conviction from the Board of Pardons and Paroles.

"b. All civil and political rights that were forfeited as a result of the conviction have been restored.

"c. Ninety days have passed from the date of the issuance of the certification of pardon.

"d. The conviction is not a violent offense, as provided in Section 12-25-32.

"e. The conviction is not a sex offense, as provided in Section 15-20A-5.

"f. The conviction is not an offense involving moral turpitude, as provided in Section 17-3-30.1.

"g. The conviction is not a serious traffic offense, as provided in Article 9 of Chapter 5A of Title 32.

"(2) Records related to offenses and convictions may be disclosed to a criminal justice agency, a district attorney, or a prosecuting authority for criminal investigation purposes as provided in Section 15-27-7.

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

§15-27-2.

"(a) A person who has been charged with a any 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 and more than 90 days have passed.

"(2) When the charge has been no billed by a grand jury and more than 90 days have passed.

"(3) When the person has been found not guilty of the charge and more than 90 days have passed.

"(4) When the charge has been nolle prossed without conditions, and more than 90 days have passed, and the charge or charges have not been refiled.

"(5) When the indictment has been quashed and the statute of limitations for refiling the charge or charges has expired or the prosecuting agency confirms that the charge or charges will not be refiled.

"(3) (6)a. The When 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.

"(4) (7) The When 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) (8) 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 a person who has been convicted of any of the following offenses, which are defined as a violent offense under subdivision (15) of violent offenses, as defined in 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.

"(c)(1) A person who has been convicted of a felony offense 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 and the conviction if all of the following occur:

"a. The person has been granted a certificate of pardon with restoration of civil and political rights for the conviction from the Board of Pardons and Paroles.

"b. All civil and political rights that were forfeited as a result of the conviction have been restored.

"c. Ninety days have passed from the date of the issuance of the certification of pardon.

"d. Except as provided in subsection (b), the conviction is not a violent offense, as provided in Section 12-25-32.

"e. The conviction is not a sex offense, as provided in Section 15-20A-5.

"f. The conviction is not an offense involving moral turpitude, as provided in Section 17-3-30.1.

"g. The conviction is not a serious traffic offense, as provided in Article 9 of Chapter 5A of Title 32.

"(2) Records related to offenses and convictions may be disclosed to a criminal justice agency, a district attorney, or a prosecuting authority 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) subsection (a), (b), or (c).

§15-27-4.

"(a) In addition to any cost of court or docket fee for filing the petition in circuit court, an administrative filing fee of three five hundred dollars ($300) ($500) shall be paid at the time the petition is filed and is a condition precedent to any ruling of the court pursuant to this chapter. The administrative filing fee shall not be waived by the court and shall be distributed as follows:

"(1) Seventy-five dollars ($75) to the State Judicial Administrative Fund.

"(2) Twenty-five dollars ($25) to the Alabama Department of Forensic Sciences.

"(3) Fifty dollars ($50) to the district attorney's office.

"(4) Fifty dollars ($50) to the clerk's office of the circuit court having jurisdiction over the matter, for the use and benefit of the circuit court clerk.

"(5) Fifty dollars ($50) to the Public Safety Fund.

"(6) Fifty dollars ($50) to the general fund of the county where the arresting law enforcement agency is located if the arrest was made by the sheriff's office to be used for law enforcement purposes, or, if the arrest was made by another law enforcement agency, to the municipality or other entity or state agency funding the law enforcement activity.

"(7) One hundred dollars ($100) to the State General Fund.

"(8) One hundred dollars ($100) to the Education Trust Fund.

"(b) Notwithstanding subsection (a), a person seeking relief under this chapter may apply for indigent status by completing an Affidavit of Substantial Hardship and Order which shall be submitted with the petition. If the court finds the petitioner is indigent, the court may set forth a payment plan for the petitioner to satisfy the filing fee over a period of time, which shall be paid in full, prior to any order granting an expungement.

"(c) If a petitioner seeks expungement of an arrest or conviction record and the court in the original case made a clear and unequivocal judicial finding on the record that the arrest had no foundation of probable cause, the court, in the expungement proceeding, shall waive all docket fees and court costs, except for the filling fee in subsection (a).

§15-27-5.

"(a) If the prosecuting authority or victim files an objection to the granting of a petition under this chapter, the court having jurisdiction over the matter shall set a date for a hearing no sooner than 14 days from the filing of the objection. The court shall notify the prosecuting authority and the petitioner of the hearing date. In the discretion of the court making its determination, the court shall consider all of the following factors:

"(1) Nature and seriousness of the offense committed.

"(2) Circumstances under which the offense occurred.

"(3) Date of the offense.

"(4) Age of the person when the offense was committed.

"(5) Whether the offense was an isolated or repeated incident.

"(6) Other conditions which may have contributed to the offense.

"(7) An available probation or parole record, report, or recommendation.

"(8) Whether the offense was dismissed or nolle prossed as part of a negotiated plea agreement and the petitioner plead pleaded guilty to another related or lesser offense.

"(9) Evidence of rehabilitation, including good conduct in prison or jail, in the community, counseling or psychiatric treatment received, acquisition of additional academic or vocational schooling, successful business or employment history, and the recommendation of his or her supervisors or other persons in the community.

"(10) Any other matter the court deems relevant, which may include, but is not limited to, a prior expungement of the petitioner's records.

"(b) A hearing under subsection (a) shall be conducted in a manner prescribed by the trial judge and shall include oral argument and review of relevant documentation in support of, or in objection to, the granting of the petition. The Alabama Rules of Evidence shall apply to the hearing. Leave of the court shall be obtained for the taking of witness testimony relating to any disputed fact.

"(c) There is no right to the expungement of any criminal record, and any request for expungement of a criminal record may be denied at the sole discretion of the court. The court shall grant the petition if it is reasonably satisfied from the evidence that the petitioner has complied with and satisfied the requirements of this chapter. The court shall have discretion over the number of cases that may be expunged pursuant to this chapter after the first case is expunged. The ruling of the court shall be subject to certiorari review and shall may not be reversed absent a showing of an abuse of discretion.

"(d) If no objection to a petition is filed by the prosecuting authority or victim, the court having jurisdiction over the matter may shall rule on the merits of the petition without setting the matter for hearing. In such cases, the court shall grant the petition if it is reasonably satisfied from the evidence that the petitioner has complied with and satisfied the requirements of this chapter. The court shall have discretion over the number of cases that may be expunged pursuant to this chapter after the first case is expunged.

§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, a district attorney, or a prosecuting authority upon acknowledgement of an investigation or other criminal matter involving the person related to the expungement. 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.

§15-27-9.

"For purposes of this chapter, the term record includes, but is not limited to, all of the following terms shall have the following meanings:

"(1) RECORD. The term shall include, but is not limited to, all of the following:

"(1) a. Arrest and conviction records.

"(2) b. Booking or arrest photographs of the petitioner.

"(3) c. Index references such as the State Judicial Information System or any other governmental index references for public records search.

"d. Records relating to administrative suspension pursuant to Article 14 of Chapter 5A of Title 32, including driver license suspension records.

"(4) e. Other data, whether in documentary or electronic form, relating to the arrest or, charge, or conviction.

"(2) CRIMINAL JUSTICE AGENCIES. As defined in Section 41-9-590.

§15-27-10.

"Nothing in this chapter shall prohibit a criminal justice agency, a law enforcement agency or official, district attorney or a prosecuting authority, the Alabama Department of Forensic Sciences, or the Department of Human Resources from maintaining an investigative file, report, case file, or log which may include any evidence, biological evidence, photographs, exhibits, or information in documentary or electronic form.

§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 3. Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the bill defines a new crime or amends the definition of an existing crime.

Section 4. 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.

Expungement

Criminal Law and Procedure

Drivers' Licenses

Misdemeanors

Traffic Violations

Code Amended