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Current as of January 02, 2024 | Updated by Findlaw Staff
(a) A person seeking expunction pursuant to § 40-32-107 shall petition the court in which the petitioner was convicted of the offense sought to be expunged. A person applying for expunction of records pursuant to this section must be charged the appropriate court clerk's fee pursuant to § 8-21-401.
(b) Upon filing of the petition, the clerk shall serve the petition on the district attorney general for that judicial district. Not later than sixty (60) days after service of the petition, the district attorney may submit recommendations to the court and provide a copy of such recommendations to the petitioner.
(c)(1) Both the petitioner and the district attorney general may file evidence with the court relating to the petition.
(2) The district attorney general may file evidence relating to the petition under seal for review by the court. Evidence filed under seal by the district attorney general is confidential and is not a public record.
(d)(1) The court shall enter an order granting or denying the petition no sooner than sixty-one (61) days after service of the petition upon the district attorney general. Prior to entering an order on the petition, the court shall review the Tennessee bureau of investigation certificate, as required by § 40-32-102(c), and consider all evidence submitted by the petitioner and the district attorney general, including any evidence submitted by the district attorney general under seal pursuant to subdivision (c)(2).
(2) In making a decision on the petition, the court shall weigh the interest of the petitioner against the best interests of justice and public safety. If the petitioner is an eligible petitioner pursuant to § 40-32-107(a)(1)(A)-(E) and meets the applicable requirements in § 40-32-107, then there is a rebuttable presumption that the petition should be granted. If the petitioner is an eligible petitioner pursuant to § 40-32-107(d), the court shall consider, in weighing the best interests of justice and public safety, whether the offense sought to be expunged was violent and any other relevant factors presented by the petitioner and the district attorney general.
(3) If the court denies the petition, the petitioner shall not file another such petition until at least two (2) years from the date of the denial.
(e) The petition and proposed order must be prepared by the office of the district attorney general and given to the petitioner to be filed with the clerk of the court. A petitioner is entitled to a copy of the order of expunction, and such copy is sufficient proof that the person named in the order is no longer under any disability, disqualification, or other adverse consequence resulting from the expunged conviction.
(f) The clerk of the court maintaining records expunged pursuant to this section shall keep such records confidential. Records expunged pursuant to § 40-32-107 are not public and can only be used to enhance a sentence if the petitioner is subsequently charged and convicted of another crime. This confidential record is only accessible to the district attorney general, the defendant, the defendant's attorney, and the judge.
(g) There is created within the district attorneys general conference a district attorneys expunction fund. Moneys in the district attorneys expunction fund must be used to defray the expense incurred for the required record search and preparation of the petition and the proposed order of expunction under this section. Any remaining moneys in the district attorneys expunction fund may be used by the district attorneys general for law enforcement purposes, including, but not limited to, the hiring of expert witnesses, training, matching federal grants directly related to prosecutorial duties, the purchase of equipment and supplies necessary to carry out prosecutorial functions, and the expenses of travel in the performance of official duties of the office; provided, all reimbursement for travel expenses must be in accordance with the provisions of the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter, and salaries and salary supplements, which may only be paid through the district attorneys general conference for support staff. Such payments are subject to the limitation of § 40-3-209(b) on the use of any funds to supplement the salary of any assistant district attorney. Moneys in the district attorneys expunction fund do not revert to the general fund but must be carried forward into the subsequent fiscal year. All funds in the district attorneys expunction fund are subject to annual audit by the comptroller of the treasury.
(h) There is created within the state treasury a public defenders expunction fund. Moneys in the public defenders expunction fund must be used to defray the expenses incurred by conducting educational activities. Subject to annual appropriation, any remaining moneys in the public defenders expunction fund may be used in furtherance of the services and programs provided by public defenders for each judicial district. Moneys in the public defenders expunction fund do not revert to the general fund but must be carried forward into the subsequent fiscal year.
(i) An order of expunction granted pursuant to this section has the effect provided in § 40-32-110.
Cite this article: FindLaw.com - Tennessee Code Title 40. Criminal Procedure § 40-32-108 - last updated January 02, 2024 | https://codes.findlaw.com/tn/title-40-criminal-procedure/tn-code-sect-40-32-108/
FindLaw Codes may not reflect the most recent version of the law in your jurisdiction. Please verify the status of the code you are researching with the state legislature before relying on it for your legal needs.
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