ALABAMA EXPUNGEMENT LAW – THE DETAILS
DETAILS ON THE NEW ALABAMA EXPUNGEMENT LAW
The Alabama expungement law became effective the first of July, and reports thus far are encouraging.
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QUESTIONS AND ANSWERS ABOUT THE ALABAMA EXPUNGEMENT LAW
CAN A CRIMINAL CONVICTION BE EXPUNGED?
No. Under the new Alabama expungement law only cases where the charges are dismissed (with or without prejudice), no billed by the Grand Jury, or where the person is acquitted after a trial can be expunged. In cases where the charges were dismissed without prejudice, special restrictions apply.
WHAT IS THE RESTRICTION ON CASES DISMISSED WITHOUT PREJUDICE?
A case that is dismissed without prejudice may be refiled at a later date. Because of this, the Alabama expungement law requires that the case have been dismissed at least two years prior to filing the expungement petition, that the case has not beed refiled, and that the person has not been convicted of any other crime (excluding minor traffic violations) in the past two years.
WHAT KINDS OF CASES CAN BE EXPUNGED?
Misdemeanors, violations, traffic citations and violations, and municipal ordinance violations can be expunged. Felony cases can be expunged with certain restrictions.
WHAT ARE THE SPECIAL RESTRICTIONS ON FELONY CASE EXPUNGEMENT?
Under the new Alabama expungement law felony cases involving “violent felonies” may not be expunged. More information on what crimes are classified as “violent felony” offenses in Alabama.
WHAT COURT WILL HEAR MY EXPUNGEMENT PETITION?
The Circuit Court in the county were the charges were originally filed has jurisdiction over an expungement petition.
I WENT THROUGH A DEFERRED PROSECUTION PROGRAM, SUCH AS DRUG COURT, MENTAL HEALTH COURT, VETERAN’S COURT. IS THE CASE ELIGIBLE FOR EXPUNGEMENT?
Generally Yes. Most deferred prosecution programs ultimately result in the charges being dismissed. Therefore, they fall under the types of cases which may be expunged under the Alabama expungement law. Note, however, that you must wait for one year after completion of the program before you can apply for expungement.
IS THERE A WAITING PERIOD FOR FELONY CASES WHICH WERE DISMISSED WITHOUT PREJUDICE?
Yes. If your offense was a felony, and the case was dismissed without prejudice, you must wait five years from the time of the dismissal before you can apply for expungement. In addition, the charges cannot have been refiled and you cannot have been convicted of any other criminal offense during the five year period (excluding minor traffic offenses).
IS THERE A WAITING PERIOD FOR FELONY CASES DISMISSED WITH PREJUDICE?
Yes. If the case is a felony, and the case is dismissed with prejudice, you must wait ninety days before you can apply for expungement under the Alabama expungement law.
WHAT IS THE COST FOR FILING A PETITION FOR EXPUNGEMENT?
The new Alabama expungement law provides that you must pay an administrative filing fee of $300.00 to file the expungement petition. This could be in addition to any court costs or docket fee imposed by your local Circuit Court Clerk.
WILL I HAVE TO HAVE A HEARING ON MY EXPUNGEMENT PETITION?
Potentially, Yes. If either the prosecuting authority or the victim / complainant objects to the expungement, the Court must schedule a hearing. If there are no objections, and the judge has enough information from what is contained in your Petition to make a decision, no hearing may be necessary.
WHAT DOES THE COURT TAKE INTO CONSIDERATION WHEN RULING ON MY EXPUNGEMENT PETITION?
The Alabama expungement law sets out a list of 10 factors that the judge in your case must take into consideration when deciding to grant your petition for expungement. A list of those factors is fully set out and explained here.
WHAT HAPPENS WHEN THE EXPUNGEMENT PETITION IS GRANTED AND MY CASE IS EXPUNGED?
The Court will order that all records concerning your arrest and the case be expunged, or removed from the records of the court, any agency or official, law enforcement, the Board of Pardons and Paroles, and the district attorney. The records are forwarded to the Alabama Criminal Justice Information Center (ACJIC) in Montgomery. Although the records have been expunged, the ACJIC will retain a copy of the records which may be accessed and used in a very limited set of circumstances. More about when and how the records may be accessed after expungement.
WILL MY EXPUNGED RECORD ALSO BE REMOVED FROM THE FBI NATIONAL DATABASE?
Most likely, Yes. The Alabama expungement law provides that the ACJIC request the withdrawal of the records from the FBI national criminal records repository. However, a state court order for expungement is not binding on the FBI.
CAN MY RECORD BE EXPUNGED IF I STILL OWE FINES, COSTS, FEES OR RESTITUTION?
No. No order expunging a record can be issued unless all court ordered monies have been paid, including restitution, fines, court costs, fees, or statuary fees.
DOES AN EXPUNGEMENT AFFECT MY RIGHT TO HAVE A FIREARM?
An expungement does not entitle a person otherwise restricted from shipping, transporting, possessing or receiving a firearm to possess, ship or transport a firearm.
I NO LONGER LIVE IN ALABAMA, CAN I HAVE MY RECORD EXPUNGED?
Yes. An Alabama lawyer can assist you in filing the proper Petition here in Alabama to have your record expunged.
SHOULD I HIRE A LAWYER TO ASSIST ME IN FILING MY PETITION?
Absolutely, Yes. The Alabama expungement law is full of technicalities, restrictions, and exceptions. An experienced Alabama criminal lawyer can determine whether you are in fact eligible for expungement. In addition, an attorney can draft a proper petition for expungement which will maximize your chances of obtaining an expungement. The law does not guarantee an expungement. There may be objections to having your record expunged and it may be necessary to attend a hearing on the petition. You will need the assistance of an attorney to help you obtain the expungement.