By Stephen W. Shaw
Why do we have or need an expungement law? Since judicial records are generally considered to be public records, they are usually available for inspection and copying by the public. See, Ex parte Consolidated Publ’g Co., Inc., 601 So. 2d 423 (Ala. 1992). As a public record, anyone with access to the AlaCourt system, or who requests information from municipal court, can obtain information regarding the charges against an individual–even if the charges were erroneous, or voluntarily dismissed by the prosecutor. This could have an effect on potential employment, or it could serve as a basis for declining someone the opportunity to serve as a volunteer.
What is the benefit of an expungement? Succinctly stated in our expungement law: “After the expungement of records … the proceeding regarding the charge shall be deemed never to have occurred.” Ala.Code § 15-27-6 (b) (1975). Further “the petitioner whose record was expunged shall not have to disclose the fact of the record or any matter related thereafter on an application for employment, credit, or other type of application [subject to statutory exceptions].” § 15-27-6 (b).
Overview of Sealed Records, Sealed Cases, and Expungement Cases
First, a quick analysis of cases that led to the need for, and passage of, our expungement law. In Holland v. Eads, 614 So. 2d 1012 (Ala. 1993), the plaintiff filed a motion to intervene in a case seeking to unseal court records in a case in which they had not been a party. The jury returned a verdict, but before the entry of a judgment, the parties reached a settlement. As a part of the settlement agreement, the court dismissed the case with prejudice and sealed the entire court file, including notes and tapes of the court reporter. Two years later, Holland sought to intervene to obtaining the trial transcript for use in a similar case against one of the defendants in a separate case. The Alabama Supreme Court noted that there were no comprehensive standards to guide the courts in this state in determining whether to seal a record or reopen a sealed file. Examining different approaches used in other jurisdictions, the Alabama Supreme Court held that the trial court shall not seal records except where a written finding that the moving party has proved by clear and convincing evidence that the information sought to be sealed and met certain specific requirements. The court observed:
We have examined the different approaches used in other jurisdictions. In light of the public policy in favor of public access and the prevailing analysis of this presumption in most American courts, we hold that if a motion to seal is filed, then the trial court shall conduct a hearing. The trial court shall not seal court records except upon a written finding that the moving party has proved by clear and convincing evidence that the information contained in the document sought to be sealed:
(1) constitutes a trade secret or other confidential commercial research or information;1 or
(2) is a matter of national security; or
(3) promotes scandal or defamation; or
(4) pertains to wholly private family matters, such as divorce, child custody, or adoption;3,4,5 or
(5) poses a serious threat of harassment, exploitation, physical intrusion, or other particularized harm to the parties to the action; or
(6) poses the potential for harm to third persons not parties to the litigation.
In 2006, the Alabama Supreme Court urged the Alabama Legislature to consider an expungement law. In Mobile Press Register, Inc., v. Lackey, 938 So. 2d 398 (Ala. 2006), the Mobile Press Register filed suit against the presiding municipal judge and court administrator seeking expunged records. The circuit court entered an order holding that the municipal court had no authority to expunge its records and a permanent injunction prohibiting the court from doing so in the future.
However, the circuit court refused to order the municipal court to grant the plaintiff access to previously expunged files. The supreme court reversed the circuit court’s ruling denying the plaintiff access to the expunged records. The court held:
Whether citizens should be entitled to have their criminal arrest records expunged is a substantive matter involving policy considerations within the purview of the legislature, not this Court. Cf. § 12-15-103, Ala. Code 1975 (allowing for the sealing and destruction of juvenile court files). We take this opportunity to urge the legislature to address the policy of expunging the criminal records of adults and to clarify the applicability of the ACJIC Act to courts. It is of course the legislature’s prerogative to allow expungement, to reject it, or to refuse to address the issue at all. If the legislature chooses to allow expungement, we note that important considerations include whether to require notice to the State or other prosecuting agency of the expungement proceedings, along with an opportunity to object, and the right of parties to appeal the grant or denial of an expungement request, thereby giving finality to the determination. Further, what is the legal effect of an expungement? Is a person whose record is expunged entitled to state in a job application, without risk of making a false statement, that the [**14] expunged matters, such as an arrest, did not take place? We note that the legislatures of other states have provided clear guidelines for courts to follow in determining whether to expunge the criminal records of adults. See generally, Kristin K. Henson, Comment, Can You Make This Go Away?: Alabama’s Inconsistent Approach to Expunging Criminal Records, 35 Cumb. L. Rev. 385 (2005). Id at 403.
The Alabama Supreme Court was clear with its legislative request, and the wheels were placed in motion for the Alabama expungement law, which became effective on July 7, 2014, as §§ 15-27-1 through -20. This act has been recently amended to allow for convictions to be expunged but only when the defendant is “a victim of human trafficking and that the person committed the felony offense during the period that the person was being trafficked and that the person would not have committed the felony offense but for being trafficked.” § 15-27-2(a)(6).
Prior Efforts to Use Other Statutes to Expunge Records
Before the passage of the current expungement law, Alabama lawyers made some creative efforts to get records expunged.
Alabama has a process for the correction of inaccurate criminal records. § 41-9-645. This section provides the process for purging, modifying, or supplementing criminal records. If an individual believes such information in their state criminal records is
inaccurate or incomplete, they may request the original agency having custody or control of the detailed records to purge, modify, or supplement them and to so notify the Alabama law enforcement of such changes. But this is a correction of records and does not expunge the record.
An example of a case which attempted to expunge a conviction was State v. Blane, 985 So. 2d 384 (Ala. 2007). The defendant plead guilty to theft of property. After a Homeland Security check on him, he later moved to expunge his record under § 41-9-646 as misleading. Rejecting this contention, the Alabama Court of Criminal Appeals suggested to the Alabama Legislature the need of a specific expungement statute:
“If there is erroneous information in the record, the record may be purged of that information; if the record misstates the offense, it may be modified; or, if the record is incomplete, it may be supplemented. The legislature knows how to draft a statute providing for the expungement of a criminal record.” State v. Blane, 985 So. 2d at 387.
Continuing, the Blane court analyzed other legislative efforts toward expungements. In § 12-15-103(g),6 in juvenile delinquency cases, the legislature provided that “[u]pon the entry of a sealing order or a destruction order, all references including arrest, complaint, referrals, petitions, reports and orders shall be removed from all agency … files and sealed or destroyed … and a finding of delinquency shall be deemed never to have occurred.”
The next year, the Alabama Supreme Court again affirmed the denial of a defendant’s efforts to use the “correcting inaccurate records” provision of § 41-9-645 to expunge records. In Jackson v. State, 993 So. 2d 491 (Ala. Civ. App. 2008), the Alabama Supreme Court noted: “Like the petitioner in Blane, Jackson has failed to demonstrate that the records of the pertinent criminal cases are ‘inaccurate, incomplete, or misleading’ so as to potentially warrant relief.”
In Ex parte City of Dothan, 18 So. 3d 930 (Ala. 2009), the defendant contended the charge of “carrying a pistol without a permit” was inaccurate because the pistol was under the seat of the passenger side of car and his plea of guilt was entered without benefit of counsel. The trial court ordered the record purged under § 41-9-646. The Alabama Supreme Court granted mandamus and held the circuit court exceeded its authority.
Alabama Expungement Law
You should first read all of the expungement statutes. §§ 15-27-1 through -20.
The process and forms for obtaining an expungement have been assisted by the Alabama Law Enforcement Agency (ALEA) and the Alabama Administrative Office of Courts (AOC). First, go to www.alea.gov, the website for the Alabama Law Enforcement Agency (ALEA). On the first page, go to the pull-down entitled “Services” and click on “Criminal History.” There you will find the documents needed to obtain a copy of your client’s criminal history, which include the Application to Review Alabama Criminal History Record Information (which includes a specific authorization for ALEA to release the criminal information to the attorney); the Application to Challenge a Criminal Record. (you do not need this, and you will not use this for an expungement), and application instructions. This will provide you with the information you need to obtain the Criminal History Report which will later be included in the Petition for Expungements.
After obtaining the Criminal History Report from ALEA, you will then complete the Petition for Expungement. Forms for the Expungement Petition are located at www.alacourt.gov, the website for the Alabama Administrative Office of Courts. Under the “Home” pulldown tab, go to “Eforms.” This will take you to the page for various forms. Go to “Criminal Forms” and scroll down to the forms beginning “CR-65 through 65D.” These are the Expungement Forms you can use.
Expungement Law Checklist–2021
- Confirm Client Eligibility: Only arrests, and not convictions, are eligible. If the client was charged with a crime of violence, the charge is not eligible with an exception for a victim of sexual trafficking who committed the felony while they were being trafficked.
- Review Alacourt records (obtain certified copy of records)
- Review municipal court records (obtain certified copy of records)
- Engagement letter with fee and expenses outlined ($300 per case administrative fee)
- Your client will have to obtain a blue fingerprint card (for you to send to ALEA).
- The client will provide you with a copy of their driver’s license or passport (to send to ALEA).
- You will prepare request for ALEA records and include:
- $25 admin fee for one copy, $5 for each additional copy requested
- Letter requesting a certified copy for every case to be filed
- Consent to release of information directly to attorney signed by client (this is now included in the ALEA forms at www.alea.gov/services/Criminal History Records Information
- Include blue fingerprint card for client (available at your local police/sheriff’s department)
- Include color copy of client’s identification, current driver’s license, passport, etc.
- Complete the Forms–and file in circuit court where the charges were made, not where the client resides.
- Use forms from Alabama Administrative Office of Courts, www.alacourt.gov/Home/EForm/Criminal Forms/CR-65.
- Include certified copy of arrest disposition or case action summary from clerk’s office at county courthouse or municipality.
- Include certified copy of ALEA record
- Complete certificate of service to district attorney, law enforcement agency making the arrest, law enforcement agency where the client was booked or jailed, and the clerk of court of the jurisdiction of the records sought to be expunged
- Certified mail receipt (or service form from clerk’s office)
- Pay clerk’s office $300 per case as administrative fee (it is technically not a filing fee) and deliver to District Attorney
- Mark your calendar and follow up with the judicial assistant of the court to whom the case is assigned for their procedure on expungement cases.
- Prepare proposed final order–if requested by the judge.
- Following the entry of the expunged order send a letter to your client and include:
- Copy of order
- Copy of all pleadings
- Copy of applicable code sections
- Advise client on potential answers to job applications and exceptions.
- Have and maintain file retention policy or agreement with client. Remember the records are expunged so the only copy remaining may be with you or the client.
- Check AlaCourt to see if the record of the petition for expungement has been designated as confidential. (When the petition for expungement is filed, it is a public accessible record. Once the order is signed by the court, the clerk’s office is due to designate the case as confidential or private. If a search is run under your client’s name, nothing will appear or you will see a notice that “No records match this search.” In the event someone checks the status of the case by using a case number, they will see a note that “This case is confidential” but it will not include your client’s name.)
Other Code Sections
Alabama Board of Pardons and Parole. Remember, a pardon is not an expungement. Under § 15-22-36 the Alabama Board of Pardons and Parole has the authority to pardon as follows:
(a) In all cases, except treason and impeachment and cases in which sentence of death is imposed and not commuted, as is provided by law, the Board of Parsons and Paroles after conviction and not otherwise, may grant pardons and paroles and to remit fines and forfeitures.
(b) Each member of the Board of Parsons and Paroles favoring a pardon, parole, remission of a fine or forfeiture, or restoration of civil and political rights shall enter in the file his or her reasons in detail, which entry and the order shall be public records, but all other portions of the file shall be privileged.
Mayoral Pardon. This is not an expungement. The mayor may remit fines and such costs as are payable to the municipality and commute sentences imposed by a municipal court of the court to which an appeal was taken for violation of municipal ordinances and may grant pardons, after conviction, for violation of such ordinances, and he shall report his action to the council or other governing body at the first regular meeting thereof in the succeeding month with his reasons therefor in writing. § 12-14-15.
Rule 609 of the Alabama Rules of Evidence allows your client to be impeached “even if the conviction has been the subject of a pardon, annulment, or equivalent procedure.”
Youthful Offender. The records of a youthful offender are handled differently. “No determination made under the provisions of this chapter shall disqualify any youth for public office or public employment, operate as a forfeiture of any right or privilege or make the youth ineligible to receive any license granted by public authority, and such determination shall not be deemed a conviction of crime; provided however, that if the youth is subsequently convicted of a crime, the prior adjudication as a youthful offender shall be considered.” § 15-19-7.
Expungement of DNA Records. Upon the reversal of conviction, the director (of Forensic Sciences) shall be authorized and empowered to expunge DNA records upon request of the person from whom the sample was taken. § 36-18-26.
Alabama Department of Forensic Sciences. Expungement of Records Regarding Allegations of Child Abuse or Neglect. “In the case of any child abuse or neglect investigation which is determined to be ‘not indicated,’ the alleged perpetrator may request after five years from the completion of the investigation that his or her name be expunged from the central registry so long as the Department of Human Resources has received no further reports concerning the alleged perpetrator during the five years, at which time the department shall expunge the same.” § 26-14-8(e).
Endnotes 1. Brown & Williamson Tobacco Corp., supra, at 1179. 2. Barron, supra, at 118. 3. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978). 4. Ex parte Balogun, 516 So. 2d 606, 612 (Ala.1987). 5. Holcombe v. State ex rel. Chandler, 240 Ala. 590, 200 So. 2d 739 (1941). 6 Subsection (g) was removed under the Alabama Juvenile Justice Act. Acts 2008, No. 08-277, effective January 1, 2009.