The word expungement means to erase, delete, zap or get rid of something. In the legal world expungement is a method of doing away with records of a prior criminal case.
Alabama’s new expungement law applies to both misdemeanors and felonies where the case was resolved in the person’s favor. With respect to felonies, however, violent felonies are excluded from this expungement law. A listing of the violent felonies where expungement is not allowed is set out in § 12-25-32 (14) of the Code of Alabama, 1975. There are 45 different so called violent felonies listed there, and these violent crimes are not subject to expungement.
No, the 2014 Alabama expungement law applies to all felonies except violent felonies, and all misdemeanors that were resolved in favor of the accused. This is true, regardless of how old the case is. This law has retroactive application. For example, if you were accused of selling marijuana when you were a college student in 1965, you can apply for expungement under this new 2014 expungement law.
The felony charges that are not subject to expungement are:
- Capital murder pursuant to § 13A-6-20 and § 13A-5-40.
- Murder pursuant to § 13A-6-2.
- Manslaughter pursuant to § 13A-6-3.
- Criminally negligent homicide pursuant to § 13A-6-4.
- Assault I pursuant to § 13A-6-20.
- Assault II pursuant to § 13A-6-21.
- Compelling street gang membership pursuant to § 13A-6-26.
- Kidnapping I pursuant to § 13A-6-43.
- Kidnapping II pursuant to § 13A-6-44.
- Rape I pursuant to § 13A-6-61.
- Rape II pursuant to § 13A-6-62.
- Sodomy I pursuant to § 13A-6-63.
- Sodomy II pursuant to § 13A-6-64.
- Sexual torture pursuant to § 13A-6-65.
- Sexual abuse I pursuant to § 13A-6-66.
- Enticing a child to enter a vehicle for immoral purposes pursuant to § 13A-6-69.
- Stalking pursuant to § 13A-6-90.
- Aggravated stalking pursuant to § 13A-6-91.
- Soliciting a child by computer pursuant to § 13A-6-110.
- Domestic violence I pursuant to § 13A-6-130.
- Domestic violence II pursuant to § 13A-6-131.
- Burglary I pursuant to § 13A-7-5.
- Burglary II pursuant to § 13A-7-6.
- Burglary III pursuant to § 13A-7-7.
- Arson I pursuant to § 13A-7-41.
- Criminal possession of explosives pursuant to § 13A-7-44
- Extortion I pursuant to § 13A-8-14.
- Robbery I pursuant to § 13A-8-41.
- Robbery II pursuant to § 13A-8-42.
- Robbery III pursuant to § 13A-8-43.
- Pharmacy robbery pursuant to § 13A-8-51.
- Terrorist threats pursuant to § 13A-10-15.
- Escape I pursuant to § 13A-10-31.
- Promoting prison contraband I pursuant to § 13A-10-36, involving a deadly weapon or dangerous instrument.
- Intimidating a witness pursuant to § 13A-10-123.
- Intimidating a juror pursuant to § 13A-10-127.
- Treason pursuant to § 13A-11-2.
- Discharging a weapon into an occupied building, dwelling, automobile, etc., pursuant to § 13A-11-61.
- Promoting prostitution I pursuant to § 13A-12-111.
- Production of obscene matter involving a minor pursuant to § 13A-12-197.
- Trafficking pursuant to § 13A-12-231.
- Child abuse pursuant to § 26-15-3.
- Elder abuse pursuant to § 38-9-7.
- Terrorism pursuant to § 13A-10-152.
- Hindering prosecution for terrorism pursuant to § 13A-10-154.
- Any substantially similar offense for which an Alabama offender has been convicted under prior Alabama law or the law of any other state, the District of Columbia, the United States, or any of the territories of the United States.
The specifics of when, how and where to file the application for expungement are set out within the wording of the Expungement Act and are extremely technical in the legal sense.
Since the when, how and where to file an application for expungement are extremely technical, do you recommend the use of an attorney?
Yes, I recommend that the person who seeks expungement utilize the skill of lawyer who does this type of work. For example, a criminal case that was “dismissed with prejudice” will be treated differently from a case that was “dismissed without prejudice” which would be treated the same as a case that was “nolle prossed.” Knowing the differences in legal terminology can make the difference of success or failure in court. In addition, the Rules of Evidence apply to the hearings. I don’t know many non-lawyers who are familiar with those rules.
Generally speaking, “record” is defined under § 9 of the 2014 Alabama expungement law. There it says “record” includes but is not limited to:
- Arrest records
- Booking or arrest photographs
- Index references such as the State of Alabama Information System or other governmental index references for public records search.
- Other data, whether in documentary or electronic form relating to the arrest or charge.
What is the net effect of the granting of an expungement application to a person who was once accused of a crime in Alabama?
To quote the law itself it is as if the [criminal] proceeding “had never occurred.” So that in effect, in many job applications for example, one can answer, “No” if asked if they have ever been arrested for a criminal offense.
Yes, even though the expungement is granted the person shall still have the duty to disclose the existence of their record to:
- Any governmental regulatory agency. For example, those seeking a security clearance would have to disclose.
- Banks or other financial institutions
- Any utility and its agents and affiliates.
What happens to someone who willfully discloses or allows disclosure of information that has been ordered to be expunged?
They will be guilty of a Class B misdemeanor.
Yes, the Alabama legislature, in its 2014 spring session passed a new expungement law. This law, for the first time in Alabama, sets forth a method for citizens to ask the courts to expunge records of their arrests (and other records) when their criminal case has been resolved in their favor. Although technically Alabama has had an expungement statute of sorts for many years, its application has been very limited in practice. Expungements of criminal records have been ordered from time to time, but case law decisions of Alabama’s appellate courts made it clear that Alabama’s expungement statute did not provide a procedure, nor did it allow the expungement of arrest records even though they had been found not guilty of the criminal charge. Prior to this 2014 expungement law, Alabama courts limited expungement of criminal records to only when the record was “inaccurate, incomplete, or misleading.” (See § 41-9-646, Code of Alabama, 1975). The new 2014 expungement law has a much wider application and will allow many more people the opportunity for expunging their records.