HB405 By Representative England RFD Judiciary Rd 1 15-MAR-16

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, or municipal ordinance violations and certain Class C and Class D felony convictions, including those adjudicated as a youthful offender, under limited circumstances.

Also under existing law, the filing fee to expunge a criminal charge is $300.

This bill would provide for a filing fee of $500 for the expungement of criminal convictions.

A BILL TO BE ENTITLED AN ACT

To amend Sections 115-27-1, 15-27-2, 15-27-3, 15-27-4, 15-27-6, 15-27-7, and 15-27-8, Code of Alabama 1975, relating to the expungement of criminal records, to provide for the expungement of convictions for misdemeanor criminal offenses, traffic violations, or municipal ordinance violations, including those adjudicated as a youthful offender, under certain conditions; to provide for the expungement of certain Class C and Class D felony convictions under certain conditions; and to provide for a filing fee for the expungement of criminal convictions.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:Section 1. Sections 15-27-1, 15-27-2, 15-27-3, 15-27-4, 15-27-6, 15-27-7, and 15-27-8, 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)a. 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(14), except an offense for which there is no statute of limitations and in which there has not been an acquittal, 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, other than not guilty by reason of mental disease or defect.

"(4)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.

"(5) 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.

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

"(b) A person who has been convicted, or adjudicated as a youthful offender, of a Class C or Class D felony may file a petition in the circuit court in the county in which the charges were filed or the conviction entered to expunge all records relating to the conviction 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) Five years have passed from the date of conviction.

"(3) The person has no prior conviction for any felony offense.

"(4) The offense is not a violent felony as defined in Section 12-25-32.

"(5) The offense is not a sex offense as defined in Section 15-20A-5.

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

"(7) The person does not have a criminal charge pending.

"(b)(c) The circuit court shall have exclusive jurisdiction of a petition filed under subsection (a) or (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) or Section 15-27-2(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.

§15-27-4.

"(a) In For the expungement of records under Sections 15-27-1(a) and 15-27-2(a), except for cases in which there was an acquittal, in addition to any cost of court or docket fee for filing the petition in circuit court, an administrative filing fee of three hundred dollars ($300) 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.

"(b) For the expungement of records under Section 15-27-1(b) or 15-27-2(b), in addition to any cost of court or docket fee for filing the petition in circuit court, an administrative filing fee of five hundred dollars ($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) One hundred dollars ($100) to the State Judicial Administrative Fund.

"(2) Forty-five dollars ($45) to the Alabama Department of Forensic Sciences.

"(3) One hundred fifteen dollars ($115) to the district attorney's office.

"(4) Eighty dollars ($80) 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) Eighty dollars ($80) to the Public Safety Fund.

"(6) Eighty dollars ($80) 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.

"(b) (c) Notwithstanding subsection (a) or (b), 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) (d) If a petitioner seeks expungement of an arrest 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).

§15-27-6.

"(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 shall have the right to 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. 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 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.

§15-27-8.

"Once the records are expunged pursuant to this chapter, the records, except for records held electronically in the Criminal Justice Information System (CJIS), shall be forwarded to the Alabama Criminal Justice Information Center 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 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 in CJIS shall be sealed from view and only available by a court order obtained pursuant to this chapter."

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

District Attorneys

Court, Circuit

Code Amended