Expungement of Criminal Records – General – Tennessee
1. What is an expungement?
Expungement is the Process by which a record of criminal conviction and/or arrest are removed by order of the court. The expunged records are deemed not to exist and the person who is the subject of the records may deny their existence, however, they may be sued to impeach them or as character evidence in future proceedings.
2. Do the records just disappear?
No. For an expungement granted under TCA § 40-32-101, the release of arrest histories of a defendant or potential witness in a criminal proceeding to an attorney of record in the proceeding shall be made to the attorney upon request. Non-public records may be maintained for determining eligibility for alternative sentencing under TCA § 40-35-313. If a person granted expungement later assumes the role of plaintiff in a civil action based upon the same transaction or occurrence as the expunged criminal record, the non-public records are also admissible for the following purposes:
(1) A plea of guilty is admissible into evidence in the civil trial as a judicial admission; and
(2) A verdict of guilty by a judge or jury is admissible into evidence in the civil trial as either a public record or is admissible to impeach the truthfulness of the plaintiff. In addition, the non-public records retained by the court shall constitute the official record of conviction and are subject to the subpoena power of the courts of civil jurisdiction. TCA § 40-32-101.
3. Who is eligible to get records expunged?
1) A person who is exonerated by the governor under TCA § 40-27-109. Executive pardons are not eligible for expungement. See, State v. Blanchard, 100 S.W.3d 226 (Tenn.Crim.App. 2002).
2) A person who was dismissed and the proceedings against the person discharged under TCA § 40-35-313, except if such discharge and dismissal was for a sexual offense.
3) i) The charge has been dismissed;
(ii) A no true bill was returned by a grand jury;
(iii) A verdict of not guilty was returned, whether by the judge following a bench trial or by a jury; or
(iv) The person was arrested and released without being charged.
(v) Successful completion of a pretrial diversion program.
(vi) All public records of a person required to post bond under § 38-3-109 shall be removed and
destroyed upon the expiration of any bond required, if no surety on the bond is required to
fulfill the obligations of the bond.
(vii) Upon petition by a defendant in the court that entered a nolle prosequi in the defendant’s case, the court shall order all public records expunged. TCA § 40-32-101.
6) A first-time offender of other than a sexual offense when the offense that was committed prior to such person’s twenty-first birthday and has since had no other convictions. TCA § 40-32-101.
7) A person who has complied with terms of a diversion agreement made pursuant to TCA §40-15-105.
4. What records may be expunged?
For persons dismissed and discharged under TCA § 40-35-313, they may apply to the court for an order to expunge from all official records, other than the non-public records to be retained by the court and the public records which are defined below, all recordation relating to the person’s arrest, indictment or information, trial, finding of guilty, and dismissal and discharge. This is not applicable to sexual offense records
Public records,” for the purpose of expunction only, does not include arrest histories, investigative reports, intelligence information of law enforcement agencies, or files of district attorneys general that are maintained as confidential records for law enforcement purposes and are not open for inspection by members of the public and do also not include records of the department of children’s services or department of human services which are confidential under state or federal law and which are required to be maintained by state or federal law for audit or other purposes. Whenever an order of expunction is given to the department of children’s services or department of human services, the department shall notify the defendant if there are records required to be maintained as directed above and the basis for such maintenance. The department shall delete identifying information in these records whenever permitted by state or federal law. These records are to be expunged whenever their maintenance is no longer required by state or federal law.
“Public records”, for the purpose of expunction only, does not include appellate court records or appellate court opinions. TCA § 40-32-101.
5. How do I get records expunged?
Persons exonerated by the governor need not petition for expungement, it shall be done automatically as a matter of law. TCA § 40-27-109.
For expungement under TCA § 40-35-313 or TCA § 40-32-101, an eligible person must petition the court having jurisdiction over the records for an order to expunge. The court shall send or cause to be sent a copy of such dismissal and expungement order to the Tennessee bureau of investigation for entry into its expunged criminal offender and pretrial diversion database; provided, however, the court shall not be required to send to the bureau a copy of any dismissal and expungement order dated on or after July 1, 1999, if the charge dismissed is classified as a Class B or C misdemeanor. The order shall contain the name of the person seeking dismissal and expungement, the person’s date of birth and social security number, the offense that was dismissed and the date such dismissal and expungement order is entered.
A defendant applying to a court for expungement of such defendant’s records following successful completion of the diversion program authorized by this section shall be assessed a fifty dollar ($50.00) fee. The fifty dollar ($50.00) fee shall not apply to any case where there has been an acquittal, nolle prosequi, or dismissal for failure to prosecute or where the law does not require a copy of the expungement order be sent to the Tennessee bureau of investigation.