117442-1:n:01/28/2010:KBH/ll LRS2010-763
| SYNOPSIS: | Existing law does not authorize the criminal record related to a charge to be sealed or expunged if the person is found not guilty of a crime or if the charges are dismissed or for a conviction record to be sealed or expunged. |
| This bill would authorize a person charged or convicted of certain felony or misdemeanor criminal offenses, a violation, or a traffic violation to petition the court in which the charges where filed or in which the conviction occurred to have his or her records expunged, including, but not limited to, arrest records, fingerprints, photographs, or index references in documentary or electronic form, relating to the arrest or charge, or both, and conviction in certain instances. | |
| 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. | |
| 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. |
To authorize a person to petition a court to have the record of certain felony or misdemeanor offenses, a violation, or traffic violations expunged in certain instances; 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. (a) A person who has been charged with a misdemeanor criminal offense, a violation, or a traffic violation may file a petition in the court in the county or municipality in which the charges were filed, or the court that dismissed the charges, to expunge all 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, 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.
Section 2. A person who has been convicted of a violation, a misdemeanor criminal offense, or a traffic violation may file a petition in the court in the county or municipality 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.
(2) Three years have passed from the date of conviction. If the conviction is for domestic violence in the third degree, five years must have passed from the date of conviction.
(3) The person has no conviction for a violent felony offense. For purposes of this act, a violent felony offense shall be defined as capital murder, murder, manslaughter, rape in the first degree, sodomy in the first degree, attempted murder, assault in the first degree, assault in the second degree, robbery in the first degree, or robbery in the second degree.
(4) The person has no conviction for a sexual offense involving a minor.
(5) The person is not a convicted sex offender.
(6) The person was not operating a commercial motor vehicle which required the person to possess a commercial driver's license at the time of the violation which led to the conviction.
(7) The person was not convicted of any of the offenses enumerated in 49 C.F.R. Section 383.51.
Section 3. A person who has been charged with a felony offense may file a petition in the court in the county or municipality in which the charges were filed, or the court that dismissed the charges, to expunge all 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) The charge was dismissed after successful completion of a drug court program, mental health court program, diversion program, or any court-approved deferred prosecution program.
(5) The charge was dismissed without prejudice, 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.
Section 4. (a) A petition filed under this act 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 Section 1, 2, or 3.
(b) A petitioner shall serve the prosecuting authority a copy of the petition and the sworn affidavit. The prosecuting authority shall notify the victim of the petition and the victim's right to object. The prosecuting authority shall have a period of 45 days to file a written objection to the granting of the petition or the prosecuting authority will be deemed to have consented to the granting of the petition. The prosecuting authority shall serve the petitioner or the petitioner's counsel a copy of the written objection.
Section 5. (a) An administrative assessment fee of six hundred dollars ($600) shall be paid at the time the petition is filed. The administrative fee shall be distributed as follows:
(1) Three hundred dollars ($300) to the Fair Trial Tax Fund.
(2) Seventy-five dollars ($75) to the district attorney's office or municipal attorney's office that is the prosecuting authority in the case to be expunged.
(3) One hundred dollars ($100) to the clerk's office of the circuit, district, or municipal court for the court having jurisdiction over the matter, for the use and benefit of the circuit, district, or municipal court clerk.
(4) Twenty-five dollars ($25) to the Alabama Crime Victim's Compensation Commission.
(5) One hundred dollars ($100) to the Alabama Department of Public Safety.
(b) A person seeking relief under this act 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.
Section 6. (a) If the prosecuting authority or victim files an objection to the granting of a petition under Section 5, the court having jurisdiction over the matter shall set a date for a hearing. The court shall notify the prosecuting authority and the petitioner of the hearing date. The prosecuting authority shall produce the petitioner's criminal history at the hearing. In the discretion of the court, the court may consider 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) Social conditions which may have contributed to the offense.
(7) An available probation or parole record, report, or recommendation.
(8) 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.
(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) 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 Section 1, 2, or 3. The court shall have discretion over the number of cases that may be expunged pursuant to this act after the first case is expunged. The ruling of the court shall be subject to certiorari review and shall 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 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 Section 1, 2, or 3. The court shall have discretion over the number of cases that may be expunged pursuant to this act after the first case is expunged.
Section 7. (a) Upon the granting of a petition pursuant to Section 1 or 3, the court shall order the destruction 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. On the effective date of this act 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 destroy 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) Eighteen months after the effective date of this act, every agency with records relating to the arrest, charge, or other matters arising out of the arrest or charge that is ordered to destroy the records shall certify to the court within 60 days of the entry of the expungement order that the required expungement action has been completed.
(c) After the expungement of records pursuant to subsection (a), the proceedings regarding the charge shall be deemed never to have occurred. 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.
Section 8. (a) Upon the granting of a petition pursuant to Section 2, the court shall order that all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records, be sealed and removed from public disclosure. On the effective date of this act 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 seal 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) Eighteen months after the effective date of this act, every agency with records relating to the arrest, charge, or other matters arising out of the arrest or charge that is ordered to seal records shall certify to the court within 60 days of the entry of the expungement order that the required expungement action has been completed.
(c) After the sealing of the records pursuant to subsection (a), the proceedings regarding the charge shall be deemed never to have occurred. The court and other agencies shall reply to any inquiry that no record exists on the matter. The petitioner whose record was sealed 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.
(d) Inspection of the expunged records may be permitted by the court only upon an application by the person who is the subject of the records and only to those persons directed to receive the information in the application except for those circumstances provided for in this section. The prosecuting authority may inspect the expunged records for any legitimate law enforcement or prosecutorial purpose, without requirement of notice or judicial process. A defendant may move the court having jurisdiction over that defendant's case to allow inspection by the defendant of the records of a witness against the defendant to determine if that witness has had any records expunged or to require the prosecuting authority to provide all expunged records of its witnesses to the defendant. Information contained in the expunged records cannot be used by the prosecuting authority or the defendant in future proceedings without approval of the court having jurisdiction over the matter and only after the court has sufficiently notified the person who is the subject of the records and conducted a hearing on the matter prior to the hearing or trial in which the records are sought to be used. The admission of those records in any proceeding shall be subject to the Alabama Rules of Evidence.
Section 9. For purposes of this act, the term record includes, but is not limited to, all of the following:
(1) Arrest records.
(2) Booking or arrest photographs of the petitioner.
(3) Index references such as SJICS or any other governmental index references for public records search.
(4) Other data, whether in documentary or electronic form, relating to the arrest, charge, or other matters arising out of the arrest or charge or relating to the conviction or other matters arising out of the conviction.
Section 10. Nothing in this act shall prohibit a law enforcement agency or official or a prosecuting authority or the Alabama Department of Forensic Sciences from maintaining an investigative file, which may include evidence, biological evidence photographs, exhibits, or information in documentary or electronic form.
Section 11. No order of expungement shall be granted unless all court ordered restitution is paid in full, including interest, to any victim, or the Alabama Crime Victim's Compensation Commission, as well as court costs, fines, or statutory fees ordered by the sentencing court to have been paid, absent a finding of indigency by the court.
Section 12. 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 13. 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.