One of the most vital roles a pro bono attorney can play in the process of extending the reach of expungement laws to as many individuals as possible is to screen them for eligibility to avoid wasted time, money, and emotional energy pursuing expungements that are not available.

Because the legislature modifies the rules for expungement nearly every year, always check the most current and up-to-date version of the Louisiana Code of Criminal Procedure to ensure that you are applying the proper screening requirements. When these laws change, they will often go into effect on August 1 of the year of the session in which the new law was enacted. It may take some time for the amended language to be updated online at the website of the Louisiana legislature (http://legis.la.gov), so you may also need to check legislative updates or reports from local bar associations or other places to determine if any laws could impact your client. JAC will provide critical expungement updates through CLEs or updates on its website or in its newsletter when changes occur. The Louisiana Association of Criminal Defense Lawyers (LACDL) and sponsoring legislators will also push out similar updates.

Anyone currently, physically incarcerated by the Louisiana Department of Public Safety and Corrections (DOC) cannot file an expungement for any arrest or offense (even those unrelated to the conviction that resulted in the current incarceration).1  Such individuals will be those serving felony sentences, although they may be serving them in either state or parish facilities. Individuals on probation or parole for a felony offense can file for expungement, but only if they are under supervision in the community.

If you get a request for expungement help from a facility, save yourself some time and figure out if the person is incarcerated on a felony sentence.

• 1La. C.Cr.P. art. 975.

Expungement of arrest-only records is controlled by Article 976 of the Code of Criminal Procedure.

An arrest can be expunged if any of the following apply:

• The offense was not prosecuted.
• The charges were dismissed.
• Prescription has run.
• The conviction was overturned on a finding of factual innocence.

​​​​Prescription rules vary by offense.1  While noncapital offenses generally have a prescriptive period of six years or less,2  the period has been extended for certain offenses such as certain sex offenses or when individuals were indicted for an offense punishable by death or life imprisonment. If there is no evidence that the charges were disposed of by the court, expungement may be unavailable if a lengthier prescriptive period has not run.  

If an arrest-only incident is eligible for expungement, there is no required waiting period; the expungement can be filed at any time, even if the person has later convictions. However, if the arrest was for a DWI offense (under La. R.S. 14:98 or a similar parish or municipal ordinance) and the individual completed pretrial diversion, additional time limitations may apply.3 ​​​​​​​ Check the current version of the statutes carefully.

• 1See La. C.Cr.P. arts. 571, et seq.
• 2La. C.Cr.P. 572(A).
• 3La. C.Cr.P. art. 976(B); La. R.S. 15:578.1.

Eligibility for expungement of these records is governed by Article 977 of the Code of Criminal Procedure.

In general, expungement of a misdemeanor conviction requires a 5-year waiting period after completion of the misdemeanor sentence and no felony conviction during that 5-year period. However, if the sentence was deferred under La. C.Cr.P. art. 894(B) and successfully set aside, the waiting period does not apply. The fact that subsequent felony convictions may alter eligibility for expungement of a misdemeanor conviction reinforces the importance of having a complete picture of a person’s record.

There are several misdemeanor offenses that are never eligible for an expungement under any circumstance, including domestic abuse battery and stalking.1  Practitioners should be especially careful if the misdemeanor conviction arises from an arrest for a felony sex offense; typically, this happens if an individual pleads guilty to a misdemeanor offense regarding the incident of arrest. In this situation, the individual is only eligible for an “Interim Expungement” under La. C.Cr.P. art. 985.1. The interim expungement will remove the felony arrest record from public view, but the misdemeanor conviction can never be expunged.

• 1La. C.Cr.P. art. 977(C).

Eligibility for expungement of the record of a felony conviction is controlled by Article 978 of the Code of Criminal Procedure.

In general, an individual is eligible for expungement when the conviction is not for an ineligible offense under paragraph (B) and one of the following apply:

• The conviction was set aside under La. C.Cr.P art. 893(E) following successful completion of probation for a “deferred” sentence or successful completion of a drug court program.1
• It has been 10 years since the completion of a sentence, probation, or parole for a felony offense, and the individual has no other convictions (either felony or misdemeanor) during that 10-year period.
• The individual received a First Offender Pardon (unless the offense was for a crime of violence or certain sex offenses).

In practice, many individuals may not know if they qualify for a First Offender Pardon. These are automatically created and generated by the Department of Probation and Parole upon completion of a person’s sentence. There are some limits on eligibility under La. R.S. 15:572(B). To check eligibility, request a copy of this letter from the person’s file. To do so, contact the District Office that supervised the person on felony probation or parole. If the person was never under supervision, contact the District Office for the jurisdiction of the sentencing court.

All exceptions to felony expungement eligibility are listed in paragraph (B) of Article 978 and have remained fairly consistent, but should be confirmed during the screening process. Ineligible felony offenses currently include:

• Any crime of violence defined in La. R.S. 14:2(B) unless the conviction falls within the paragraph (E) exceptions (as listed at the time of the application for expungement, not as listed at the time of conviction)
• Any sex offense or a criminal offense “against a victim who is a minor” as both are defined in R.S. 15:541
• A conviction for distribution of a controlled dangerous substance under R.S. 40:966(A), 967(A), 968(A), 969(A), or 970(A) unless a First Offender Pardon has been granted
• Felony domestic abuse battery

Paragraph (E) of Article 978 provides a limited exception to the list of ineligible offenses under Paragraph (B) (i.e., it is an exception to the exception). The following crimes can be expunged if 10 years have elapsed since the completion of the sentence, probation, or parole: aggravated battery, second degree battery, aggravated criminal damage to property, simple robbery, purse snatching, or illegal use of weapons or dangerous instrumentalities.

• 1La. C.Cr.P. art. 893(E)(4). A person may have only two felony set asides in one lifetime. La. C.Cr.P. art. 893(E)(2), (3)(c).

Juvenile record expungement is controlled by Articles 917 to 926 of the Children’s Code.

Generally, all juvenile records are sealed and cannot be made available except under specific court orders. Because these records are already considered confidential and are sealed, many individuals do not seek to expunge juvenile records. Expungement is available, however, without cost and in almost all cases without a waiting period once the court ceases to supervise the youth. Any practitioner working with youth can and should move to expunge juvenile records when these cases are closed or as soon as eligible.

Many individuals may be seeking gun rights restoration, which is an unsettled area of law with overlapping and potentially inconsistent federal and state requirements.

A person who can be prosecuted under La. R.S. 14:95.1 as a “felon with a firearm” is legally barred from gun ownership. The Louisiana State Police (LSP) will generally not grant a gun license to such a person. After a cleansing period and/or expungement, however, it may be possible to get a license. Nevertheless, a permit from the state of Louisiana following an expungement does not guarantee that the federal government will recognize that an individual’s firearm rights have been restored. For example, anyone who was arrested on a crime related to domestic violence and pleaded to a lesser charge that included an element of violence (i.e., arrested for domestic abuse battery, but pleaded to simple battery) may be permanently barred from carrying a weapon under current federal law.1

As a result, an individual with a Louisiana permit found carrying a weapon by a sheriff or LSP may face no charges or issues after showing the license, but the same person investigated or stopped by the FBI, ATF, or federal game wardens may still face federal firearm charges. Many advocates encourage individuals with criminal records to get the most stringent license – a conceal carry permit – to ensure as much compliance as possible with federal law

• 118 U.S.C §§ 921–922.