Tennessee Code Title 40. Criminal Procedure § 40-32-106

Current as of January 02, 2024 | Updated by Findlaw Staff

(a)(1) All public records of a person who has been charged with a misdemeanor or a felony must, upon petition by that person to the court having jurisdiction in the previous action, be removed and destroyed without cost to the person, if:

(A) The charge against the person has been dismissed for a reason other than the successful completion of a pretrial diversion program pursuant to §§ 40-15-102--40-15-107 or a judicial diversion program pursuant to § 40-35-313;

(B) A no true bill was returned by a grand jury;

(D) A nolle prosequi was entered in the defendant's case;

(E) A verdict of not guilty was returned, whether by a judge following a bench trial or by a jury on all charges for which the defendant was accused;

(F) Except as provided in subdivision (b)(2), the person has been charged with an implied consent violation under § 55-10-406 and the violation was dismissed without cost;

(G) The charge has been abated by death, in which case, notwithstanding this subsection (a) to the contrary, a personal representative of the decedent may apply for an order of expunction;

(H) The court finds that the person was arrested or charged due to mistaken identity. A person seeking expunction due to a case of mistaken identity may provide evidence of the relevant circumstances in a petition and may request that the court order the expunction to be expedited. If the court finds that the person was arrested or charged due to mistaken identity, then the court may order the Tennessee bureau of investigation and any other entity that performs expunction to expunge the records of the person in an expedited manner; or

(I) A person has been charged and convicted with a misdemeanor or felony while protesting or challenging a state law or municipal ordinance the purpose of which was to maintain or enforce racial segregation or racial discrimination, if:

(i) Thirty-seven (37) years or more have elapsed since the date of conviction for the offense being expunged and the petitioner has not been convicted of any other offense, excluding minor traffic violations, during that period of time;

(ii) Any period of supervision due to conviction has been completed;

(iii) The offense was a misdemeanor, Class C, Class D, or Class E felony not otherwise excluded pursuant to subdivision (a)(1)(I)(iv), or, if committed prior to November 1, 1989, would be an eligible offense under § 40-32-107(a) if committed after November 1, 1989;

(iv) The offense was not:

(a) A Class A or Class B felony or a Class C felony described in § 40-15-101(a)(1)(B)(iii);

(b) A sexual offense described in § 40-15-105(a)(1)(B)(ii);

(d) Vehicular assault as prohibited by § 39-13-106; or

(e) For an offense committed prior to November 1, 1989, an ineligible offense under § 40-32-107(a) if the offense had been committed after November 1, 1989; and

(v) The district attorney general is served a copy of the petition for expunction by certified mail, return receipt requested, and the district attorney general does not file an objection with the court within twenty (20) calendar days of receipt of the petition.

(2) All public records of a person must, upon petition by that person to the court having jurisdiction in the previous action, be removed and destroyed without cost to the person if:

(A) An order of protection authorized by title 36, chapter 3, part 6 was successfully defended and denied by the court; or

(B) The bond has expired, if no surety on the bond is required to fulfill the obligations of the bond, for a person required to post bond under § 38-3-109.

(b) Notwithstanding subsection (a), a person is not entitled to the expunction of their records if:

(1) The person was charged with an implied consent violation under § 55-10-406 and the violation was dismissed with costs;

(2) The person was charged with an implied consent violation under § 55-10-406 and the violation was dismissed without costs, but the person held:

(A) A commercial driver license or a commercial learner permit, as defined in § 55-50-102, and the offense was committed within a motor vehicle, as defined in § 55-50-102; or

(B) Any driver license and the offense was committed within a commercial motor vehicle, as defined in § 55-50-102;

(3) The person was found not guilty by reason of insanity or incompetent to stand trial by a court in a criminal proceeding; or

(4) Except as provided in subsection (c):

(A) The person is charged with an offense, is not convicted of the charged offense, but is convicted of an offense relating to the same criminal conduct or episode as the charged offense, including a lesser included offense; provided, however, any moving or nonmoving traffic offense must not be considered an offense as used in this subdivision (b)(4); or

(B) The person is charged with multiple offenses or multiple counts in a single indictment and is convicted of:

(i) One (1) or more of the charged offenses or counts in the indictment; or

(ii) An offense relating to the same criminal conduct or episode as one (1) of the offenses charged in the indictment, including a lesser included offense.

(c)(1) Subdivision (b)(4) does not apply if the person is a victim of a human trafficking offense, the conviction is a result of victimization, and the person is applying for expunction relief under § 40-32-105 or if the person is seeking relief under subdivision (c)(2).

(2) A person who is ineligible for expunction of the person's records pursuant to subdivision (b)(4) is, upon petition by that person to the court having jurisdiction in the previous action, entitled to removal of public records from electronic databases relating to the person's arrest, indictment, charging instrument, or disposition for any charges other than the offense for which the person was convicted. The public records must be removed from the relevant electronic databases of the national crime information center system and similar state databases, and the person must be entered into the Tennessee bureau of investigation's expunged criminal offender and pretrial diversion database with regard to the offenses removed pursuant to this subdivision (c)(2). The public records must also be removed from any public electronic database maintained by a court clerk. This subdivision (c)(2) does not require court clerks to expunge records relating to an offense for which the person was convicted. Court clerks are not liable for any errors or omissions relating to the removal and destruction of records under this section.

(d)(1) Except as provided in subdivision (d)(2), a person may petition for expunction of public records in a criminal case if the charges were dismissed as a result of the person's successful completion of a pretrial diversion program pursuant to §§ 40-15-102--40-15-107 or a judicial diversion program pursuant to § 40-35-313.

(2) The records of a person who successfully completes a pretrial diversion program pursuant to §§ 40-15-102--40-15-107 or a judicial diversion program pursuant to § 40-35-313, must not be expunged pursuant to this section if the offense for which the person was diverted was a sexual offense or a violent sexual offense, as defined in § 40-39-202.

(3) A person applying for expunction of records pursuant to subdivision (d)(1) must be charged the appropriate clerk's fee pursuant to § 8-21-401 for destroying the records.

(e)(1) A person meeting the requirements of this section may apply to the court having jurisdiction in the previous action for an order of expunction.

(2) Upon a verdict of not guilty being returned, whether by a judge following a bench trial or by a jury, on all charges for which the defendant was accused, the judge shall inquire of the person acquitted whether such person requests that all public records associated with the charges for which such person was acquitted be removed and destroyed without cost to the person and without the requirement that the person petition for destruction of such records. If the person requests that the public records related to such charges be removed and destroyed, then the court shall so order. If the person acquitted does not request that such records be destroyed at the time the judge inquires pursuant to this subsection (e), but subsequently requests that such records be destroyed, then the person must apply to the court having jurisdiction in the previous action for an order of expunction.

(3) If a person charged and convicted with a misdemeanor or felony while protesting or challenging a state law or municipal ordinance whose purpose was to maintain or enforce racial segregation or racial discrimination is deceased, then a petition for expunction pursuant to subdivision (a)(1)(l) may be filed by a person who is able to establish legal authority to act on the behalf of the deceased person.

(f) An order of expunction granted pursuant to this section has the effect provided in § 40-32-110.

(g) Notwithstanding another law to the contrary, upon request of the petitioner, records or documents subject to the destruction requirement of this section that are utilized exclusively for education purposes and are displayed in public museums, libraries, and buildings are exempt from the destruction requirement.

(h) It is the intent of the general assembly that a person is entitled to the expunction of public records in a criminal case only if the person is entitled to have all public records removed and destroyed by reason of one (1) of the results specified in this chapter.

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Cite this article: FindLaw.com - Tennessee Code Title 40. Criminal Procedure § 40-32-106 - last updated January 02, 2024 | https://codes.findlaw.com/tn/title-40-criminal-procedure/tn-code-sect-40-32-106/

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