Five Things You Should Know About Getting an Expungement in Orleans Parish

October 21 2019 | Committees

 

Every lawyer has that aunt or uncle who is always asking for free legal advice about a practice area we may or may not practice in. Some of the most common questions lawyers get are about expungements.

The next time you get a question about expungements, you can refer to this list for answers to some of the most common questions when it comes to expungements.

1. Am I Eligible to Get an Expungement in Orleans Parish?

Lawyers like to give this answer but clients hate to hear it – “it depends.”

So let us try to do a little better than just “it depends.” Mainly, whether you’re eligible for an expungement will depend on the following: what you were arrested for/pleaded guilty to/were convicted of; the time between this offense and any others; whether you were sentenced (if pleaded guilty or convicted) under Article 894 or 893; and how much time has passed between your sentence and your sexpungement.

Because there are many different factors to being eligible for an expungement that require knowledge of the law, we strongly recommend consulting with an attorney before proceeding with your expungement.

Here is what we mean. You may be eligible for an immediate expungement if:

  • You were arrested, but the arrest did not result in a conviction or guilty plea
  • You received a deferred sentence under Article 894 for a misdemeanor conviction or guilty plea, and have successfully finished all of the requirements of your sentence
  • You received a deferred sentence under Article 893 for a felony conviction or guilty plea, and have successfully finished all of the requirements of your sentence

But if you were convicted of a misdemeanor, but you did not receive a deferred sentence under Article 894, then you will need to wait 5 years from the date that you finish the requirements of your sentence to file a motion to expunge. La. C.Cr.P. art. 977. Generally, you also need to wait 5 years between expunging each misdemeanor conviction that was not deferred under Article 894. Id. However, you need to wait 10 years between expunging each arrest and conviction of a misdemeanor offense of driving while intoxicated. Id.

Things get even more complicated when it comes to felonies. For example, if you were convicted of a felony, and you did not receive a deferred sentence under Article 893, then you will need to wait 10 years from the date that you finish the requirements of your sentence to file a motion to expunge. La. C.Cr.P. art. 978. Generally, you also need to wait 15 years between expunging each felony conviction that was not deferred under Article 893. Id.

If you were convicted of or pleaded guilty to one of the following offenses, then it is unlikely (though there are some exceptions) that you are eligible for an expungement:

  • Domestic abuse battery
  • Stalking
  • A sex offense as defined in La. R.S. 15:541
  • A crime of violence as enumerated in La. R.S. 14:2(B)
  • Distribution of a controlled dangerous substance
  • A conviction for a violation of the Uniform Controlled Dangerous Substances Law for which you could have received a sentence of 5 years or more

2. What Effect Will Getting an Expungement Have on Future Employment?

A previous arrest or conviction can have tremendous, life-long consequences on a person’s ability to get a job. It is often the main reason people want to get an expungement in the first place. You’ve moved on in your life, only to have some past incident pop up when applying for a new job.

There are a couple of important things to know about the limitations of an expungement. The first is that law enforcement never “forgets” about your previous arrest or conviction even when they destroy or eliminate records pursuant to an expungement order. They simply remove that information from public view. But internally, they still have a record of it.

This has several implications. First, if you’re applying for any type of government job for which the agency or department you’re applying to likely can get access or request from law enforcement records of your expunged arrest/guilty plea/conviction, then that government agency or department will find out about your arrest or conviction. The same goes for when you’re applying for most types of state professional licenses, such as for lawyers, doctors, nurses, and accountants.

Second, if you’re ever arrested again for anything else, that previously expunged offense can be used against you in various ways.

3. Do I Need an Expungement for an Arrest that Did Not Result in a Conviction?

In our experience, yes. This is because most background checks do not show what happened with the charges for which you were arrested. For example, let’s say you were arrested for theft. After your arrest, you went to court, and the case was dismissed right away. In all likelihood, a background check will still show that you were arrested for theft without showing that the charge was dismissed. Even though you were never convicted of theft, you may find yourself having to explain the theft charge to future employers.

4. How Long Does an Expungement in Orleans Parish Take?

There is no simple answer to this question despite what many have said about it. Each expungement case is different, and therefore the amount of time it will take complete each case can be different. Nevertheless, a typical expungement in Orleans Parish will take about six (6) months to fully complete. This estimated time period covers the time you turn in your expungement paperwork to the time you receive a letter from the Louisiana State Police verifying that your information is sealed.

Again, there are many exceptions to this general rule, so please keep that in mind when you’re thinking about getting an expungement.

5. How Do I Get Started on My Expungement?

The first thing you need to decide is whether to hire an attorney to handle your expungement. You may also wish to attend the monthly expungement seminars offered by the Orleans Parish Public Defender’s Office. An expungement is supposed to be a straight forward matter that a non-attorney can handle. But, as we mentioned above, that is, in our experience, rarely actually the case.

In addition to legal research and legal knowledge being required, there are also processing fees involved with an expungement that are non-refundable. So it may end up costing you even more if you’re attempt to do it on your own does not succeed.

After deciding on whether to get an attorney, you will need your case number and basic case information. This will be needed to full out the standard expungement paperwork that most courts, including Orleans Parish Criminal District Court, require. You may get an expungement packet by going to the Clerk’s Office at the Orleans Parish Criminal District Court.

In addition to the expungement packet, your expungement will require a background check, printout of the docket report, and money orders, or a signed fee waiver from the District Attorney. (Individuals whose arrests did not result in a conviction and did not complete diversion are eligible for a fee waiver.) You may also be required to file a motion to set aside conviction before you file your motion to expunge.

The District Attorney’s Office, the arresting agency, the Orleans Parish Sheriff’s Office, and the Louisiana State Police will then have sixty (60) days to object to the motion to expunge. If there are objections, you will have to litigate why the objections are not valid and demonstrate that you are in fact eligible for an expungement. If there are no objections or if the court rules in your favor, the court will then enter an order of expungement.

However, you are not done. You must ensure that the order is actually served and carried out by each government department or agency that has records of your arrest or conviction such that all of the records are removed from public view. This is not always an easy or straightforward process.

Conclusion

            As we mentioned, each case is different and the above is not meant to be specific legal advice for your particular situation. If you have additional questions or need help with an expungement, you can contact us at our offices at the information listed below.

 

Vice Chair, Criminal Law Committee
Mr. Winston is a New Orleans-based defense attorney whose practice foxuses on appeals, federal litigation, and white-collar criminal defense. 

Contact Information:
Law Office of Sam Winston
1700 Josephine Street
New Orleans, LA 70113
(504) 577-2500
www.samwinstonlaw.com
Chair, Criminal Law Committee
Mr. Capitelli is a white-collar lawyer whose practicefocuses on litigation, white collar criminal defense, professional liability claims and select civil matters.

Contact Information:
Capitelli & Wicker
1100 Poydras St #2950
New Orleans, LA 70163
(504) 582-2425
https://capitelliandwicker.com/


 

 



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