Call us for a free consultation 225.338.9703 Download our free guide on how to hire a lawyer

Archive for tag: expungement

Can You Expunge A Case That Was Dismissed?

Louisiana has recently revised its expungement laws making the process of placing a conviction behind less burdensome. Fortunately, any felony arrest that was either not prosecuted or resulted in a dismissal or an acquittal at trial can be expunged from your record.  The only exception to this rule would be for those placed into a pre-trial diversion program for a DWI. Drunk driving diversions, by statute, must wait five years from their successfully completing the program before they can expunge the DWI arrest from their record.

Obtaining an expungement is not too difficult though there are some bureaucratic hurdles and expenses to incur.  The good news is that expungements for arrests not resulting in a conviction can get most, if not all, of the filing fees waived.

All expungements in Louisiana are simply shielding mechanisms.  The Court does not order the destruction and erasure of your files. From a practical stand point, expungements  will prevent the public at large from finding out about your arrest. This is important for people applying for schools or jobs requiring background checks. That said, the police department will maintain a permanent record of your arrest, the reports and records of any DNA samples or fingerprint cards generated. You'll also have a booking photo that can be used in future lineups.

If you were arrested but were not convicted of a crime, we'll gladly meet with you to discuss the process of obtaining the expungement.  Call MGK&B and speak to oe of our lawyers today at 225-383-9703.

Will a Louisiana DWI stay on my record?

This is a good and common question. The answer depends on what ultimately happens with your case.  You can move for an immediate expungement of your arrest if you are either acquitted at trial or your DWI is dismissed by the prosecutor.  However, if your DWI arrest isn’t prosecuted because you are placed into the district attorney's pretrial diversion program then , by law, you must wait five years before you expunge the DWI arrest from your record.  This provision is new and is an exception to the normal rules governing expungements for diverted crimes.  That being said, even though you must wait longer to expunge a DWI arrest that is dismissed through a pretrial diversion program, there are benefits of entering and completing the program that can not be offered by the court.  The biggest benefit is that you are never convicted of a DWI.  

However should you enter a plea of guilty to a DWI 1st offense or are convicted at a trial for that charge you will likely be placed on probation pursuant to La. C.Cr.P. Art. 894.  This is Louisiana’s misdemeanor expungement provision that allows you to remove the conviction from your record after successfully completing probation.  In fact, you can immediately move to expunge the arrest and conviction from your record after completing your probation. However , please keep in mind that this type of expunged conviction is simply shielded from the public but will always be known by law enforcement for purposes of enhancing your sentence in the future.  In other words an expunged

How long does a DWI arrest remain on my record in Louisiana?

This is a good and common question. The answer depends on what ultimately happens with your case. You can move for an immediate expungement of your arrest if you are either acquitted at trial or your DWI is dismissed by the prosecutor. However, if your DWI arrest isn’t prosecuted because you are placed into the district attorney's pretrial diversion program then , by law you can get an expungement but you’ll need to wait 5 years.  This extended time period for an expungement is an important consideration for people deciding whether to pursue diversion of an 894 plea.

What happens if you fail to abide by the probationary conditions required for an 893 plea?

This is a good question.  An 893 plea does not impose a sentence but, instead, places the person on to probation for a period of time.  When the probationary period is over, the probationer can move to set aside the conviction  and obtain an expungement.  So, most people mistakenly believe that someone who doesn’t complete their probation successfully and gets their probation revoked will only have to serve a sentence equal to the amount of time they were on probation.  But, this isn’t so.  Since there wasn’t a sentence imposed, there isn’t a specified period of time in jail that is “suspended.”  This differs from regular probation which specifies a sentence of jail to serve but suspends it and places the person on to probation.  With an 893 plea, the person could be jailed for the maximum sentence available for the crime.  So, for example, someone with an 893 plea to felony theft who was given a 3 year probationary period, could serve the maximum penalty of 10 years if they are revoked.  Of course, revocation isn’t mandatory for someone who doesn’t successfully complete 893 probation.  The judge could simply terminate the probation unsatisfactorily and allow the conviction to remain on the offender’s record forever.  Another option, is to impose a regular probated sentence.

What is an 893 Plea in Louisiana?

“893” is simply the code of criminal procedure article that allows for a felony conviction to be expunged after successfully completing probation.  So the term “893 plea” simply means you are pleading guilty to a felony with an expungement opportunity.  Under article 893, a guilty plea conviction is recorded but a sentence is not imposed.  Instead, the offender is placed on to probation.  Upon completing the probationary conditions, the probationer can petition the court to set aside and the conviction and having the prosecution dismissed.  I suspect the sentence is not imposed in order to read this article in harmony with the procedural articles giving the court discretion to allow a guilty plea to be withdrawn prior to sentencing.  A conviction set aside under article 893 has many of the same civil effects as an acquittal but can be used as a prior conviction for any habitual offender or statutory enhancements available on a new arrest and prosecution.  However, the restoration of your civil rights does not extend to gun ownership.  An 893 conviction can still be used for state and federal gun prosecutions.  The benefits of article 893 can only be used one time during an offender’s life.  

What is an 894 Plea in Louisiana?

“894” is simply the code of criminal procedure article that allows for a misdemeanor conviction to be expunged after successfully completing probation.  So the term “894 plea” simply means you are pleading guilty to a misdemeanor with an expungement opportunity.  Under article 894, a guilty plea conviction can be set aside and the prosecution dismissed after the conclusion of the probationary period when the probationary conditions are satisfied; there are no new convictions; and no new arrests pending against the probationer.  A conviction set aside under article 894 has the same civil effects as an acquittal but can be used as a prior conviction for any habitual offender or statutory enhancements available on a new arrest and prosecution.  As a general rule, article 894 can be used every 5 years unless it is for a DWI.  In that case, it can be used every 10 years.

What happens if I can not pay off my restitution order while I am on probation in Louisiana?

There are four possibilities.  The first possibility is that the court could terminate the probation unsatisfactorily.  The problem with this resolution is that you will be unable to expunge the conviction from your record and will never be eligible for probation again even if you would otherwise be eligible for it.  The second possibility, and by far the worst outcome, is that the court could revoke your probation.  While there is case law suggesting that a probationer cannot be revoked if they are poor and cannot afford to pay fines and court costs, this prohibition does not seem to apply to restitution.  The third possibility, and probably the most likely, is that the probationer’s term of probation can be extended providing the probationer with more time to pay restitution.  The fourth option is simply converting the balance owed into a monetary judgment against the probationer subjecting him to wage garnishments etc.  Since this civil judgment is part of a criminal restitution award, some argue that it can not be discharged in bankruptcy.  And, like other civil judgments, must be re-inscribed every 10 years in order to remain effective

What does it mean to have my probation terminated unsatisfactorily?

First, you need to consider yourself fortunate that your probation was not revoked which would send you to jail.  By definition, an unsatisfactory probationary disposition means that you did not do everything you promised the judge you would do if he wouldn’t send you to jail following your conviction.  Even though you are free, there are some long term consequences that you need to know.  First, if you pled guilty under one of Louisiana’s expungement provisions, you will not be able to get the conviction removed from your record.  Second, the finding of “unsatisfactory’ means that you are ineligible for probation  so if you get convicted of another felony offense and are otherwise eligible.  Third, it is arguable that you would not be eligible for the “first offender pardon” if the probated sentence was for a first felony conviction since you would not have “completed” your sentence.  This means that the right to vote isn’t restored to you.

 

Obviously, it is best to complete all of your probationary conditions so you do not face any of these risks.

What every Louisiana lawyer needs to know about Mississippi's non-adjudication probation.

In my opinion, Mississippi's non-adjudication probation is the "gold standard" for expungements and it is vital for every criminal law practitioner to understand it in order to advise clients with Mississippi convictions or those newly arrested in Mississippi. In essence, Mississippi's non-adjudication probation is a hybrid of Louisiana's felony expungement provision found in La C.Cr.P.Art. 893 and the pretrial diversion programs offered by many Louisiana District Attorneys. The best feature of Mississippi's non-adjudicated probation is that it will allow the offender to walk away from an arrest without ever having a conviction entered against him. In this regard the non-adjudication probation is identical to Louisiana's pretrial diversion. By statute, Mississippi's non-adjudication probation can only be used one time and, in this regard, is also similar to most pretrial diversion programs offered in Louisiana.

Mechanically, your client will go before the court and enter a guilty plea. The court will impose probationary conditions that must be fulfilled. But, the court will not accept the plea. Once the probationary conditions are satisfied you can move the court to dismiss the case and have the record sealed so you can expunge the arrest. The withholding and set aside procedures are similar to Louisiana’s felony expungement procedures outlined in Article 893. However there is a critical distinction. Louisiana's felony expungement simply shields a conviction from the public. It can still be used to adjudicate the offender as a habitual offender; it can be used to enhance a DWI or marijuana offense; it counts for criminal history points during a subsequent federal prosecution; and it infringes upon the offender's rights to bear arms and vote. This is not the case for the Mississippi offender who successfully completes the non-adjudication probation.The Mississippi offender is, in all respects, never convicted of a crime. That being said, Mississippi's Department of Corrections will always maintain a record of the case in order to ensure that the offender only participates in the program one time during the course of his life.

Recent changes in Mississippi law makes non-adjudication probation available to a larger class of offenders. If you have any questions concerning your eligibility simply call our office so we can discuss your case further.