2011 Louisiana Laws
Revised Statutes
TITLE 44 — Public records and recorders
RS 44:9 — Records of violations of municipal ordinances and of state statutes classified as a misdemeanor or felony

§9. Records of violations of municipal ordinances and of state statutes classified as a misdemeanor or felony

A.(1) Any person who has been arrested for the violation of a municipal or parish ordinance or for violation of a state statute which is classified as a misdemeanor may make a written motion to the district, parish, or city court in which the violation was prosecuted or to the district court located in the parish in which he was arrested, for expungement of the arrest record, under either of the following conditions:

(a) The time limitation for the institution of prosecution on the offense has expired, and no prosecution has been instituted; or

(b) If prosecution has been instituted, and such proceedings have been finally disposed of by dismissal, sustaining of a motion to quash, or acquittal.

(2) If the court finds that the mover is entitled to the relief sought as authorized by this Subsection, it shall order all agencies and law enforcement offices having any record of the arrest, whether on microfilm, computer card or tape, or on any other photographic, electronic, or mechanical method of storing data, to destroy any record of arrest, photograph, fingerprint, or any other information of any and all kinds or descriptions. The court shall order such custodians of records to file a sworn affidavit to the effect that the records have been destroyed and that no notations or references have been retained in the agency's central repository which will or might lead to the inference that any record ever was on file with any agency or law enforcement office. The original of this affidavit shall be kept by the court so ordering same and a copy shall be retained by the affiant agency which said copy shall not be a public record and shall not be open for public inspection but rather shall be kept under lock and key and maintained only for internal record keeping purposes to preserve the integrity of said agency's files and shall not be used for any investigative purpose. This Subsection does not apply to arrests for a first or second violation of any ordinance or statute making criminal the driving of a motor vehicle while under the influence of alcoholic beverages or narcotic drugs, as denounced by R.S. 14:98 or 98.1.

(3)(a) The Bureau of Criminal Identification and Information may charge a processing fee of two hundred fifty dollars for the expungement of any record of arrest when ordered to do so by the court in compliance with the provisions of this Section.

(b) The clerk of court shall collect the processing fee at the time the motion for expungement is filed and may collect a fee of up to ten dollars to cover the clerk's administration costs. If the court finds the mover is entitled to the relief sought, the clerk shall direct the collected processing fee to the Bureau of Criminal Identification and Information and the processing fee amount shall be deposited immediately upon receipt into the Criminal Identification and Information Fund. If the court does not grant such relief, the clerk of court shall return the fee to the moving party.

(c) Notwithstanding the provisions of Subparagraphs (a) and (b) of this Paragraph, a juvenile who has participated in and has successfully completed any juvenile drug court program operated by a court of this state shall be exempt from payment of the processing fees otherwise authorized by this Paragraph.

(4)(a) The sheriff and the district attorney may each charge a processing fee of fifty dollars for the expungement of any record of arrest when ordered to do so by the court in compliance with the provisions of this Section.

(b) The clerk of court shall collect the processing fee at the time the motion for expungement is filed. If the court finds the mover is entitled to the relief sought, the clerk shall direct the collected processing fee to the sheriff and the district attorney and the processing fee amount shall be remitted immediately upon receipt in equal proportions to the office of the district attorney and the sheriff's general fund. If the court does not grant such relief, the clerk of court shall return the processing fee to the moving party.

(5)(a) Any person who has been convicted for the violation of a municipal or parish ordinance, a traffic violation, or for violation of a state statute which is classified as a misdemeanor may make a written motion to the district, parish, or city court in which the violation was prosecuted or to the district court located in the parish in which he was arrested, for expungement of the arrest record if five or more years has elapsed between the date of the motion and the successful completion of any sentence, deferred adjudication, or period of probation or parole. Notwithstanding the provisions of Code of Criminal Procedure Article 892.1 or 894, or any other provision of law to the contrary regarding the set aside of a conviction or the dismissal of a prosecution, an expungement shall occur only once with respect to any person during a five-year period, except in the case of a misdemeanor offense of operating a vehicle while intoxicated which may occur only once with respect to any person during a ten-year period.

(b) No person shall be entitled to an expungement if the misdemeanor conviction arose from circumstances involving a sexual act or act of domestic violence.

(c) The motion for expungement shall include a certification obtained from the district attorney which verifies that, to his knowledge, the applicant has no felony convictions and no pending misdemeanor or felony charges under a bill of information or indictment.

(d) If, after a contradictory hearing with the district attorney and the arresting law enforcement agency, the court finds that the mover is entitled to the relief sought for the above reasons, it shall order all law enforcement agencies to expunge but not destroy the record of the same in accordance with the provisions of this Paragraph; however, nothing in this Paragraph shall limit or impede the authority under law to consider prior arrests or convictions in pursuing prosecution under multiple offender provisions or impede the investigation of any law enforcement official seeking to ascertain or confirm the qualifications of any person for any privilege or license authorized by law.

B.(1) Any person who has been arrested for the violation of a felony offense or who has been arrested for a violation of R.S. 14:34.2, R.S. 14:34.3, or R.S. 14:37 may make a written motion to the district court for the parish in which he was arrested for the expungement of the arrest record if:

(a) The district attorney declines to prosecute, or the prosecution has been instituted, and such proceedings have been finally disposed of by acquittal, dismissal, or sustaining a motion to quash; and

(b) The record of arrest and prosecution for the offense is without substantial probative value as a prior act for any subsequent prosecution.

(2) If, after a contradictory hearing with the district attorney and the arresting law enforcement agency, the court finds that the mover is entitled to the relief sought for the above reasons, it shall order all law enforcement agencies to expunge the record of the same in accordance herewith. However, nothing in this Paragraph shall limit or impede the authority under law to consider prior arrests or convictions in pursuing prosecution under multiple offender provisions or impede the investigation of any law enforcement official seeking to ascertain or confirm the qualifications of any person for any privilege or license authorized by law.

C.(1) Any person who has been arrested for the violation of a state statute which is classified as a felony may make a written motion to the district court for the parish in which he was arrested for expungement of the arrest record if the time limitation for the institution of prosecution on the offense has expired, and no prosecution has been instituted.

(2) If, after a contradictory hearing with the arresting agency, the court finds that the mover is entitled to the relief sought for any of the above reasons, it shall order all law enforcement agencies to expunge same* in accordance herewith. However, the arresting agency may preserve the name and address of the person arrested and the facts of the case for investigative purposes only.

D. Whoever violates any provisions of this section shall be punished by a fine of not more than two hundred fifty dollars or by imprisonment of not more than ninety days, or both, if the conviction is for a first violation; second and subsequent violations shall be punished by a fine of not more than five hundred dollars or imprisonment of six months, or both.

E.(1)(a) No court shall order the destruction of any record of the arrest and prosecution of any person convicted of a felony, including a conviction dismissed pursuant to Article 893 of the Code of Criminal Procedure.

(b) After a contradictory hearing with the district attorney and the arresting law enforcement agency, the court may order expungement of the record of a felony conviction dismissed pursuant to Article 893 of the Code of Criminal Procedure. Upon the entry of such an order of expungement, all rights which were lost or suspended by virtue of the conviction shall be restored to the person against whom the conviction has been entered, and such person shall be treated in all respects as not having been arrested or convicted unless otherwise provided in this Section or otherwise provided in the Code of Criminal Procedure Articles 893 and 894.

(2) No court shall order the expungement or destruction of any record of the arrest and prosecution of any person convicted of a sex offense as defined by R.S. 15:541(14.1), involving a child under the age of seventeen years. The provisions of this Paragraph shall apply to all records of any proceedings, order, judgment, or other action under Code of Criminal Procedure Article 893.

(3)(a) A court may order the destruction or the expungement of the record of a misdemeanor conviction dismissed pursuant to Article 894 of the Code of Criminal Procedure. However, no destruction of the record shall be ordered for any conviction for a first or second violation of any ordinance or statute making criminal the driving of a motor vehicle while under the influence of alcoholic beverages or narcotic drugs, as denounced by R.S. 14:98 or 98.1.

(b) Upon the entry of such an order of expungement, all rights which were lost or suspended by virtue of the conviction shall be restored to the person against whom the conviction has been entered, and such person shall be treated in all respects as not having been arrested or convicted unless otherwise provided in this Section or otherwise provided in the Code of Criminal Procedure Articles 893 and 894.

(4) However a criminal background check requested by a health care provider pursuant to R.S. 40:1300.51 et seq. shall include records which would inform a potential employer of any crimes enumerated in said statute which were committed by an applicant for employment.

F. For investigative purposes only, the Department of Public Safety and Corrections may maintain a confidential, nonpublic record of the arrest and disposition. Upon specific request therefor and on a confidential basis, the information contained in this record may be released to the following entities who shall maintain the confidentiality of such record: any law enforcement agency, criminal justice agency, the Louisiana State Board of Medical Examiners, the Louisiana State Board of Nursing, the Louisiana State Board of Dentistry, the Louisiana State Board of Examiners of Psychologists, the Louisiana State Board of Social Work Examiners, the Emergency Medical Services Certification Commission, Louisiana Attorney Disciplinary Board, Office of Disciplinary Counsel, the Louisiana Supreme Court Committee on Bar Admissions, or any person or entity requesting a record of all criminal arrests and convictions pursuant to R.S. 15:587.1.

G. "Expungement" means removal of a record from public access but does not mean destruction of the record. An expunged record is confidential, but remains available for use by law enforcement agencies, criminal justice agencies, the Louisiana State Board of Medical Examiners, the Louisiana State Board of Nursing, the Louisiana State Board of Dentistry, the Louisiana State Board of Examiners of Psychologists, the Louisiana State Board of Social Work Examiners, the Emergency Medical Services Certification Commission, the Louisiana Attorney Disciplinary Board, Office of Disciplinary Counsel, the Louisiana Supreme Court Committee on Bar Admissions, or any person or entity requesting a record of all criminal arrests and convictions pursuant to R.S. 15:587.1.

H. A convicted felon while in the custody of the secretary of the Department of Public Safety and Corrections shall have no right or standing to petition the court for expungement under this Section.

I. Except to those entities listed in Subsection G of this Section, no person whose record of arrest and conviction has been expunged pursuant to the provisions of this Section shall be required to disclose that he was arrested or convicted for the subject offense or that the record of the arrest and conviction has been expunged, unless otherwise provided in this Section.

J.(1) Any person who has obtained from the appropriate district court an order expunging an arrest may, with the consent of the district attorney, petition the same court alleging actual innocence for an order to destroy the records previously expunged.

(2) Such petition must be served on the arresting agency and the custodian of such records at least fifteen days in advance of any consideration by the court.

(3) No such petition may be entertained by the court without the express written consent of the district attorney. Such consent may be withdrawn at any time prior to consideration by the court.

(4) Upon consideration of the petition to destroy records properly authorized by the district attorney, the court shall order all agencies and law enforcement offices having any record of the arrest, whether on microfilm, computer card or tape, or on any other photographic, electronic or mechanical method of storing data, to destroy any record of arrest, photograph, fingerprint, or any other information of any and all kinds or descriptions.

(5) Any such order may include a requirement that the custodian of records file a sworn affidavit attesting that the records have been destroyed and that no notations or references have been retained in the agency's or law enforcement office's central repository which will or might lead to the inference that any record ever was on file with any agency or law enforcement office. The original of this affidavit shall be kept by the court so ordering same, and a copy shall be retained by the affiant agency or law enforcement office which said copy shall not be a public record and shall not be open for public inspection but rather shall be kept under lock and key and maintained only for internal recordkeeping purposes to preserve the integrity of said agency's or law enforcement office's files and shall not be used for any investigative purpose.

K. The following applicants for expungement shall not be required to pay any fee to the clerk of court, the Bureau of Criminal Identification and Information, sheriff, the district attorney, or any other agency to obtain or execute an order of a court of competent jurisdiction to expunge the arrest from the individual's arrest record if a certification obtained from the district attorney is presented to the clerk of court which verifies that the applicant has no felony convictions and no pending felony charges under a bill of information or indictment and at least one of the following applies:

(1) The applicant was acquitted, after trial, of all charges derived from the arrest, including any lesser and included offense.

(2) The district attorney consents, and the case against the applicant was dismissed or the district attorney declined to prosecute the case prior to the time limitations prescribed in Chapter 1 of Title XVII of the Code of Criminal Procedure, and the applicant did not participate in a pretrial diversion program.

(3) The applicant was arrested and was never prosecuted within the time limitations prescribed in Chapter 1 of Title XVII of the Code of Criminal Procedure and did not participate in a pretrial diversion program.

L.(1) The Louisiana State Law Institute shall develop a uniform expungement form for persons seeking an expungement without the necessity of employing counsel.

(2) The Louisiana State Law Institute shall develop a uniform order of expungement. The order shall provide for any information deemed appropriate by the Louisiana State Law Institute including the following:

(a) The signatures of the judge, district attorney, and any other parties required by law.

(b) The statutory authority for granting or denying the expungement.

(c) A place for the court to provide written reasons when the expungement is denied.

(3) After development of the forms provided for by the provisions of this Subsection, the Louisiana State Law Institute shall make the forms available to the Judicial Council for distribution to the appropriate courts throughout the state of Louisiana.

(4) The clerks of court in all parishes shall make this information available to the public upon request.

Added by Acts 1970, No. 445, §1. Amended by Acts 1972, No. 715, §§2, 3; Acts 1974, No. 531, §1; Acts 1976, No. 678, §1; Acts 1978, No. 570, §1; Acts 1981, No. 936, §1, eff. Aug. 2, 1981; Acts 1985, No. 852, §1; Acts 1989, No. 606, §1; Acts 1995, No. 295, §1; Acts 1995, No. 1251, §3; Acts 1996, 1st Ex. Sess., No. 5, §2, eff. April 23, 1996; Acts 1997, No. 1296, §5, eff. July 15, 1997; Acts 1999, No. 1111, §1; Acts 2001, No. 1206, §2; Acts 2003, No. 1043, §1; Acts 2004, No. 797, §2, eff. July 8, 2004; Acts 2005, No. 53, §1; Acts 2006, No. 673, §1; Acts 2007, No. 314, §1; Acts 2009, No. 282, §1; Acts 2010, No. 348, §1; Acts 2010, No. 355, §2; Acts 2010, No. 587, §1; Acts 2010, No. 609, §1; Acts 2010, No. 781, §2; Acts 2011, No. 214, §1.

*NOTE: As appears in enrolled bill.

NOTE: Acts 1996, 1st Ex. Sess., No. 5, amending R.S. 44:9(B), is retroactive to Aug. 15, 1995.

NOTE: See Acts 2006, No. 673, §2, regarding prospective and retroactive application of R.S. 44:9(J).