Can you have a criminal or dui conviction taken off your record in TN?
June 2, 2008
Fellow Memphis criminal and DUI attorney Patrick Stegall had a great blog post about this subject that I wanted to share with all of my readers.
Diversion, expungment, and dismissal–can I get this taken off my record?
I frequently get asked this question. If you’ve already been through the justice system and your case is disposed of, you’re too late. Expungment of a conviction is something your attorney needs to talk to you about on the front end, because that’s the only time you can get it. You can’t just go and ask for it later on. You have to set it all up beforehand. What does it take, then, to get a conviction removed from your record? In Tennessee, it is a process called diversion. There are two types, pre-trial and judicial. I’ll discuss both here.
Pre-trial diversion is the quicker, easier way to go, but the requirements are tougher and a client can do it only after they’ve been indicted. An indictment is a formal notice of the charge issued by the grand jury. Here in Memphis, it takes several months after arrest to get indicted in State court. See, before being indicted a person handles their case in General Sessions. One of two things will happen when the case is in Sessions: it will either be disposed of (guilty plea, dismissal, etc.) or it will move up to Criminal Court. On the way to Criminal Court, the case must pass through the grand jury. If the grand jury finds there is enough evidence, they will indict the person. So only after a client’s been indicted can I look into pre-trial diversion. Pre-trial diversion is great if you can get it. What it is is a suspension of the prosecution against the defendant. It’s also known as attorney general diversion because it is the attorney general (prosecutor) who will suspend the case. They basically will agree not to do anything on it for up to two years, and if at the end of that time the defendant’s done everything they need to do and has stayed out of trouble, the case will be dismissed. Whether the client gets it is completely up to the prosecutor. What’s great is that the client doesn’t have to enter a guilty plea. This is especially beneficial to immigrant clients who are trying to get citizenship or residency, because a guilty plea of any kind, even if it’s later removed, would be bad for them. I don’t know immigration law, but I do know that to ICE a criminal conviction is like the death penalty. The drawback to pre-trial diversion is that you have to wait to be indicted. Like I said, here in Memphis that’s going to take several months. You may want to dispose of your case when it first gets into General Sessions, but to do that you have to enter a guilty plea. Also, the case can be suspended only for up to two years, which means the case for which you’ve been charged must have a maximum two-year sentence. Many diversion-eligible charges fall outside of this. For instance, a person eligible for diversion indicted on a class C felony in Tennessee is looking at 3-6 years. They would not qualify for pre-trial diversion.
The other type of diversion is called judicial diversion. This is where a client enters a guilty plea and begins their probation, but the judge does not enter a judgment of guilt. It’s a deferral. Clients can enter judicial diversion at any time, whether in General Sessions or Criminal Court, and the deferment can last up to six years. At the end of their probation, the client can request to have the record of their conviction expunged. All public records of the conviction are destroyed, although the court keeps a non-public record for the sole purpose of preventing the individual from qualifying again.
How does one qualify for diversion in Tennessee? The biggest thing is that a client cannot have a prior felony or Class A misdemeanor conviction, and cannot have gone on diversion before. As part of the application process, the client must go through a Tennessee Bureau of Investigation background check. This check will tell if they qualify. Also, the charge for which they are applying for diversion cannot be a Class A or B felony, a sex offense, a DUI, or Driving with a Suspended, Canceled, or Revoked License. That means if you are convicted of one of those offenses, it will stay on your record forever.
An important thing to remember about diversion is that you qualify for it only once. So if you’re facing a criminal charge and you qualify, might as well use it while you’ve got it. Notice that any conviction below a class A misdemeanor does not disqualify one from future diversion. So if a client is facing, say, a reckless driving (Class B) or disorderly conduct (Class C) charge, they could be convicted and keep their eligibility. However, I would not want the words “reckless driving” or “disorderly conduct” next to my client’s name for the rest of their life. At that point I would try to get a dismissal of the charge, followed by an expungment.
Comments
Got something to say?
