When you are screening a client to determine eligibility, it is also very important that you have a complete and accurate picture of the criminal record. Eligibility will depend on several factors:

• Is the record of an arrest-only incident or a conviction?
• If there was a conviction, what was the conviction for?
• What was the sentence?
• Have there been any later convictions, and if so, for which offenses?

Generally, it is best to organize all records chronologically. Many individuals will come to you with a specific charge in mind that they want expunged because they believe it is holding them back, but without a complete picture of the entire record, you will not know if that record is eligible or when it may become eligible.

In practice, if the person knows that the entirety of their record is within one or two parishes, it is likely easiest, cheapest, and fastest to determine eligibility by requesting court records from the courts where the cases were heard or for an attorney to look up the records if online access is available. A Bill of Information and a Disposition or Sentencing Minutes is sufficient to determine eligibility. Orleans Parish Criminal District Court will provide a more complete “Expungement Packet” that includes arrest information and district attorney screening forms.

If the person is unsure of their records or these records are spread out across many parishes, the only agency that is supposed to hold all fingerprinted records of arrest is the Louisiana State Police (LSP). An LSP background check can be obtained in person at the headquarters in Baton Rouge or through the mail with a return to either you or your client. The mail option will often take 6–8 weeks. Unfortunately, these records are often incomplete and may not include records of arrests or incidents without fingerprints. Practitioners must also keep in mind that a background check from either a parish sheriff or LSP is only good for 60 days. Because a background check will also be required when filing the expungement, you should request a background check for screening purposes only if it is impossible to determine eligibility without it or to confirm completeness of the expungement packet when a person is ready to file. This will save clients multiple background check fees.

The combination of arrests, convictions, sentences, and time periods is nearly infinite. A few examples will demonstrate the process of evaluating a client’s record for expungement eligibility.

Example 1: A client brings court records for an arrest on domestic abuse battery and a conviction for the lesser offense of disturbing the peace. Client was sentenced to 6 months incarceration deferred under Article 894 and 2 years probation. The client also has an arrest for misdemeanor possession from 2020 that did not result in conviction.

• First, regardless of the conviction, the arrest charge is eligible for expungement without any waiting period and should receive a fee waiver because there are no felony convictions on this individual’s record.
• Second, the conviction may be eligible based on outcome because domestic abuse battery is only ineligible for expungement if it was a conviction; an arrest for domestic abuse battery with a lesser conviction (like this example) is eligible.
• However, the time that has elapsed since the date of conviction will also be relevant. To take two examples:
  • You are reviewing the records in 2022. The conviction occurred in 2020, and the client satisfactorily completed probation. The conviction may be expungable if the court first grants a Motion to Set Aside because the client had no pending charge when probation ended.
  • You are reviewing the records in 2022. The conviction occurred in 2018, but the client was terminated unsatisfactorily from probation in 2020 because of the pending misdemeanor possession charge. The conviction will not be eligible until 5 years after the probationary sentence completed. You cannot use a Motion to Set Aside to avoid the waiting period because the client was terminated unsatisfactorily; if you can get the court to reconsider the unsatisfactory termination based on the later dismissal of the possession charges, it may be possible to obtain a set aside.

Example 2: Review of a client’s background check shows only 2 arrest incidents: 1) 2014 conviction for misdemeanor theft with a sentence of 2 years of probation; and 2) 2010 conviction for felony aggravated battery with a sentence of 1 year incarceration with credit for time served and 3 years of probation. Assuming review in 2022:

• The 2014 misdemeanor is eligible for expungement because 5 years have elapsed since the likely completion of the sentence in 2016.
• The cleansing period for the 2010 felony was interrupted by the 2014 misdemeanor conviction, so the cleansing period for this felony restarted in 2016 and will run until 2026. A First Offender Pardon would not make the 2010 conviction expungable because it was for a crime of violence under La. R.S. 14:2(B).

Example 3: Client’s record shows 4 convictions: 1) 2006 conviction for felony possession of cocaine with a 5-year sentence; 2) 2010 conviction for misdemeanor theft with a sentence of 2 years probation; 3) 2012 conviction for felony theft with a sentence of 2 years probation; and 4) a 2014 conviction for misdemeanor theft with a sentence of 2 years probation.

• The 2006 conviction for felony possession of cocaine is eligible immediately if the person received a First Offender Pardon; if not, expungement requires 10 years with no convictions (as with the 2012 felony theft conviction discussed below).
• For the 2010 misdemeanor theft conviction, the 5-year cleansing period was interrupted by the felony conviction in 2012, but not by the misdemeanor conviction in 2014. This record is eligible 5 years after the conclusion of the felony sentence in 2014, so it has likely been eligible since 2019.
• The 2012 felony theft conviction will not have a First Offender pardon. Assuming that there was no deferred sentence under Article 893,1  the client will require 10 years with no convictions after the latest conviction. Because the supervision for the 2014 misdemeanor likely ended in 2016, the 2012 felony conviction will likely be eligible for expungement in 2026.
• The 2014 misdemeanor theft conviction requires the 5-year cleansing period after completion of the sentence (likely in 2016). Hence, this conviction has likely been eligible for expungement since 2021.

• 1In addition, if this record is being reviewed in 2022, it is no longer possible to seek reconsideration of the sentence.