How Do I Get Records Expunged in Tennessee?
Full Question:
In 1989, I was arrested on false charges and received a disposition of 'no bill'. The courts failed to enter the disposition to GCIC. Almost 20 years later, the disposition is being entered solely because I requested it. Is this something that I can get expunged or is it automatically erased due to no conviction? And, once the courts enter this into GCIC, is the FBI electronically notified/updated?
07/06/2009 |
Category: Criminal ยป Expungement ... |
State: Tennessee |
#17363
Answer:
A petition to expunge must generally be made before records are expunged. When a case is dismissed, other records of arrest, etc. may still exist. Procedures for interchange of information between government agences is covered in the policies of each agency, and some information may be secret or classified. I'm not sure whether you are referring to a charge in Georgia.
When a conviction is expunged, there still may be other records in existence. Public records," for the purpose of expunction only, does not include arrest histories, investigative reports, intelligence information of law enforcement agencies, or files of district attorneys general that are maintained as confidential records for law enforcement purposes and are not open for inspection by members of the public and do also not include records of the department of children's services or department of human services which are confidential under state or federal law and which are required to be maintained by state or federal law for audit or other purposes. Whenever an order of expunction is given to the department of children's services or department of human services, the department shall notify the defendant if there are records required to be maintained as directed above and the basis for such maintenance. The department shall delete identifying information in these records whenever permitted by state or federal law. These records are to be expunged whenever their maintenance is no longer required by state or federal law.
"Public records", for the purpose of expunction only, does not include appellate court records or appellate court opinions. TCA § 40-32-101.
The following is a TN statute:
40-32-101. Destruction or release of records.
(a)
(1)
(A) All public records of a person who has been
charged with a misdemeanor or a felony shall, upon petition by
that person to the court having jurisdiction in the previous
action, be removed and destroyed without cost to the person,
if:
(i) The charge has been dismissed;
(ii) A no true bill was returned by a grand jury;
(iii) A verdict of not guilty was returned, whether by the
judge following a bench trial or by a jury; or
(iv) The person was arrested and released without being
charged.
(B) A person applying for the expunction of records because
the charge or warrant was dismissed in any court as a result
of the successful completion of a pretrial diversion program
pursuant to §§ 40-15-102 — 40-15-107, shall be charged the
appropriate court clerk's fee pursuant to § 8-21-401 for
destroying such records.
(C) A person applying to a court after October 1, 1998, for
the expunction of the persons records following the successful
completion of a judicial diversion program authorized by
§ 40-35-313 shall be charged a fee of fifty dollars ($50.00).
The fee shall be transmitted and used in the manner set out in
§ 40-35-313(d)(2).
(D) Notwithstanding the provisions of subdivisions (a)(1)(B)
and (C), the records of a person who successfully completes a
pretrial diversion program pursuant to §§ 40-15-102 — 40-15-107,
or a judicial diversion program pursuant to § 40-35-313,
shall not be expunged pursuant to this section, if the
offense for which the person was diverted was a sexual
offense as defined by § 40-39-202, or a violent sexual
offense as defined by § 40-39-202.
(E) A person shall not be entitled to the expunction of such
person's records in a particular case if the person is
convicted of any offense or charge, including a lesser
included offense or charge.
(2) All public records of a person required to post bond
under § 38-3-109 or § 38-4-106 [repealed] shall be removed and
destroyed as required by this chapter upon the expiration of
any bond required, if no surety on the bond is required to
fulfill the obligations of the bond.
(3) Upon petition by a defendant in the court that entered a
nolle prosequi in the defendant's case, the court shall order
all public records expunged.
(4) For purposes of this section, "court" includes any court
exercising juvenile jurisdiction.
(5) All public records concerning an order of protection
authorized by title 36, chapter 3, part 6, which was
successfully defended and denied by the court following a
hearing conducted pursuant to § 36-3-605, shall, upon petition
by that person to the court denying the order, be removed and
destroyed without cost to the person.
(b)
(1) "Public records," for the purpose of expunction only,
does not include arrest histories, investigative reports,
intelligence information of law enforcement agencies, or files
of district attorneys general that are maintained as
confidential records for law enforcement purposes and are not
open for inspection by members of the public and shall also
not include records of the department of children's services
or department of human services that are confidential under
state or federal law and that are required to be maintained by
state or federal law for audit or other purposes. Whenever an
order of expunction issues under this section directed to the
department of children's services or department of human
services, the department shall notify the defendant if there
are records required to be maintained as directed above and
the basis therefor. The department shall delete identifying
information in these records whenever permitted by state or
federal law. These records are to be expunged whenever their
maintenance is no longer required by state or federal law.
(2) "Public records", for the purpose of expunction only,
does not include appellate court records or appellate court
opinions.
(c)
(1) Release of confidential records or information
contained therein other than to law enforcement agencies for
law enforcement purposes shall be a Class A misdemeanor.
(2) This section shall not be construed to deny access to
any record to the comptroller of the treasury or the
comptroller of the treasury's agent for purposes of audit
investigation; the comptroller of the treasury or the
comptroller of the treasury's agent having this access shall
protect the confidential nature of the records that are not
otherwise public under other statutes.
(3) Release of arrest histories of a defendant or potential
witness in a criminal proceeding to an attorney of record in
the proceeding shall be made to the attorney upon request.
(d)
(1) Any court ordering the expunction of a person's
public records of a criminal offense, including orders issued
as a result of the successful completion of a diversion
program pursuant to §§ 40-15-105 and 40-15-106 or judicial
diversion program, shall send or cause to be sent a copy of
the expunction order to the Tennessee bureau of investigation
for entry into its expunged offender and pretrial diversion
database. The order shall contain the name of the person
seeking expunction, the person's date of birth and social
security number, the offense that was dismissed, the date and
cause of the dismissal and the date the order of expunction is
entered.
(2) After April 25, 2000, a defendant petitioning a court
for expunction of records because the charge against the
person was dismissed as a result of the successful completion
of a diversion program pursuant to §§ 40-15-102 — 40-15-106
shall be assessed a fifty dollar ($50.00) fee. The
fifty dollar ($50.00) fee shall not apply to any case where
there has been an acquittal, nolle prosequi, or dismissal for
failure to prosecute or where the law does not require a copy
of the expunction order be sent to the Tennessee bureau of
investigation. The fee shall be transmitted by the clerk of
the court to the state treasurer for deposit in a special fund
to be used by the Tennessee bureau of investigation for the
exclusive purpose of establishing and maintaining the expunged
criminal offender and pretrial diversion database. The moneys
received in the fund shall be invested for the benefit of the
fund by the state treasurer pursuant to § 9-4-603. Amounts in
the fund shall not revert to the general fund of the state but
shall, together with interest income credited to the fund,
remain available for expenditure in subsequent fiscal years.
(e) It is the intent of the general assembly that no fee
ever be charged a person who is petitioning a court for
expunction of records because:
(1) The charge against the person was dismissed for a reason
other than the successful completion of a diversion program
pursuant to §§ 40-15-102 — 40-15-106 or § 40-35-313;
(2) A no true bill was returned by a grand jury;
(3) A verdict of not guilty was returned, whether by the
judge following a bench trial or by a jury; or
(4) The person was arrested and released without being
charged.
(f)
(1) All public records of a person who has been charged
and convicted with a misdemeanor or felony while protesting or
challenging a state law or municipal ordinance whose purpose
was to maintain or enforce racial segregation or racial
discrimination shall, upon petition by that person to the
court having jurisdiction in the previous action, be removed
and destroyed without cost to the person, if:
(A) The charge has been dismissed;
(B) A no true bill was returned by a grand jury;
(C) A verdict of not guilty was returned, whether by the
judge following a bench trial or by a jury;
(D) The person was arrested and released, without being
charged; or
(E)
(i) Thirty-seven (37) years or more have elapsed since
the date of conviction for the offense being expunged and the
petitioner has not been convicted of any other offense,
excluding minor traffic violations, during that period of
time;
(ii) Any period of supervision due to conviction has been
completed;
(iii) The offense was a misdemeanor, Class C, D or E felony
not otherwise excluded pursuant to subdivision (f)(1)(E)(iv),
or, if committed prior to November 1, 1989, would be an
included Class C, D, or E felony if committed after
November 1, 1989;
(iv) The offense was not a Class A or Class B felony or a
Class C felony described in § 40-15-105(a)(1)(B)(iii), a
sexual offense described in § 40-15-105(a)(1)(B)(ii), or an
offense prohibited by title 55, chapter 10, part 4, vehicular
assault as prohibited by § 39-13-106, or if committed prior to
November 1, 1989, would not be an excluded offense if
committed after November 1, 1989; and
(v) The district attorney general is served a copy of the
petition for expungement by certified mail, return receipt
requested, and the district attorney general does not file an
objection with the court within twenty (20) calendar days of
receipt of the petition.
(2) All public records of a person required to post bond
under § 38-3-109 shall be removed and destroyed as required by
this section upon the expiration of any bond required, if no
surety on the bond is required to fulfill the obligations of
the bond.
(3) Upon petition by a defendant in the court that entered a
nolle prosequi in the defendant's case, the court shall order
all public records expunged.
(4) For purposes of this subsection (f), "court" includes
any court exercising juvenile jurisdiction.
(5) If the person charged or convicted is deceased, the
petition may be filed by a person who is able to establish
legal authority to act on the behalf of the deceased person.
(6) Notwithstanding any law to the contrary, upon request of
the petitioner, records or documents subject to the
destruction requirement of this subsection (f) that are
utilized exclusively for education purposes and are displayed
in public museums, libraries, and buildings are exempt from
the destruction requirement.
