How do I go about researching my old arrest in TN?
July 25, 2011 10:30 AM   Subscribe

How do I go about researching an expunged shoplifting charge (my own) in Tennessee? (And what does expunged mean in this case anyway?)

About 15 years ago I was arrested for a misdemeanor (shoplifting) in Tennessee. A lawyer helped me go into some sort of pre-trial diversion program, and my understanding was that the charge would be expunged. After paying the initial costs (I cannot recall if I pleaded guilty or not), and the lawyer fee, I didn’t address it again. Last month, I got an FBI criminal record check for a job I am applying for, and the charge appears on the FBI rap sheet.

As shamed as I was by the arrest at the time, I basically put it completely behind me. I have no paperwork associated with it, no record of who the lawyer I worked with was, no evidence other than the notation on the FBI rap sheet that it even occurred. I called the Clerk of the Court today, and was told that I am not listed in their records anywhere, which, while good, actually complicates my ability to explain the situation. I have a couple of questions:

1) Who should I hire to research this for me? A lawyer?

2) How much would it be likely to cost?

4) Can anyone recommend someone in Cleveland, TN who could do this type of work?

3) If the charge was indeed supposed to be expunged, would it stay on the FBI sheet? If it is there in error I can contest it, but it appears that the FBI will want it corroborated by TN, which might be hard given the disappearance of the information.
posted by anonymous to Law & Government (5 answers total)
IANAL, but am given to understand that the FBI does not have to follow State level guidance irt expunges. So, it may well be that your record will not show up on anything lower than a federal based back ground check (which may be why the Clerk's office didn't find anything). But it is likely to always be available to the Feds unless specific laws are changed/enacted.
posted by edgeways at 10:44 AM on July 25, 2011

Tennessee Expungement Law

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.
posted by fozzie33 at 10:52 AM on July 25, 2011

IAMAL, but I am a paralegal in Tennessee working in criminal defense. Because the Court Clerk has no record of your case, it sounds like your record has been expunged. It has always been my understanding that having a case expunged means that the average background check would/ should not be able to see the arrest or disposition of the case, but it would still be accessible to the Feds.
posted by allnamesaretaken at 11:14 AM on July 25, 2011

I do expungement work on a limited pro bono basis in Chicago. Here is my general advice about this, but, obviously, I don't practice in Tennessee and some of this may not apply.

In order to research this, you need to deal with the original arresting agency, not the clerk of the court because if the record has been expunged, the clerk of the court will no longer have access to the file, and pertinent information (the case number, your name, the arrest record number) won't call up the original case. The police should also not have access to a properly expunged arrest record. But if the record has only been sealed, the police will have access to the record, while the clerk of the court will not. You need a case number, an arrest record number and/or a police fingerprint record number. The FBI background check should have some of that information on it. If you have a case number, the clerk of the court should be able to get a copy of an order requiring the record to be expunged or sealed--even if the clerk cannot pull up any part of the original case or arrest record.

If you have a case record showing an expungement, and an arrest record number still showing up in the system, you have a record which was not properly expunged. You should be able to go to court and get the expungement order enforced. If the record was simply sealed, not expunged, the FBI will have access to it, however. You'll need a local attorney to tell you how to proceed if an expunged record is being reported to the FBI.

I'd call the county courthouse and ask if there is a legal aid / expungement help desk in the courthouse. If there isn't one, call the legal aid services listed at Legal Service Corporation and talk to them.

Generally, expungement means the record is destroyed. Laws vary from state to state as to what sorts of arrests and convictions can be expunged. Orders of expungement are not reported to federal agencies. Furthermore, there is no system in place that reports expungements to the thousands of private background check companies and nothing that compels them to remove records which have been expunged. Therefore, if the arrest was reported to--or otherwise archived by--a nonlaw enforcement background check agency, they have no way of knowing that the record has been expunged and may continue to report it, if someone runs a background check on you. Generally speaking, as well, orders of expungement entered in one state don't get reported to other states, although a record of arrest/conviction may have been transferred at the request of law enforcement. There are many serious flaws in the expungement/sealing system.

Typically, an motion for an order of expungement is sent only to the original arresting agency, the state police and other state and local law enforcement agencies who might process arrests that come from the original arresting agency. The state's attorney for that area usually gets the order as well. Any order entered in response to the motion will be sent to all those people too. Anyone who is named in the order of expungement is supposed to destroy the record. Orders of expungement do not impact existing federal law enforcement records; but once the record is expunged, it shouldn't be pulled and reported any longer. But see above about private "find out anything about anybody" companies, who are not parties to the expungement order.

Records ineligible for expungement are sometimes eligible for an order sealing the record. Sealed records are available to a host of law enforcement agencies, for law enforcement and sentencing purposes. In Illinois, they are not released to employers in background checks, but the FBI would have access to a sealed record, whereas a clerk in the courthouse would not necessarily find it in the database.
posted by crush-onastick at 11:37 AM on July 25, 2011 [2 favorites]

From a user who would prefer to remain anonymous:
I practice criminal law in Tennessee. If you have completed a diversion program, and had the record expunged, the only record that should be retained of that arrest and prosecution is contained in a database maintained by the Tennessee Bureau of Investigation, for the sole purpose of determining whether an applicant for diversion (which is available only once in a person's life) has been granted diversion before. When I make application on behalf of my clients for diversion (whether pretrial or judicial), I request a certification from the Tennessee Bureau of Investigation that the individual is eligible for diversion. The TBI checks that database in order to make this determination.

I don't know whether the FBI checks the TBI database. I agree with the above commenter that expungement does not always remove a record of arrest and prosecution from private databases.

In determining how you will address this with the FBI, you may want to recall whether you pled guilty or not, prior to being placed on diversion. Pretrial diversion (a deferment of prosecution by the district attorney) does not involve a guilty plea, while judicial diversion (a deferment of sentencing by the court, after the defendant has pled guilty) are different programs, but assuming successful completion of the probationary period, they both result in dismissal of the charge. I know nothing about federal background checks, but it occurred to me that whoever is reviewing your file may inquire into whether or not you pled guilty.
posted by jessamyn at 7:03 PM on July 26, 2011

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