By Nashville Expungement Attorney Daniel A. Horwitz:
*Note: This is a free informational resource about expungement law in Tennessee. If you are looking to hire an attorney to expunge your record for you, please click here instead.*
A new expungement law enacted in 2015 is finally being applied to cases in Nashville. The reform will benefit tens of thousands of people who were charged with multiple offenses but were only convicted of some of them.
Tennessee’s “partial expungement” law permits people to expunge records in cases where they were convicted of some charges but not others. The relevant portion of the law states that: “A person . . . shall be entitled to partial expunction of any public records relating to the person’s arrest, indictment, charging instrument, or disposition for any charges other than the offense for which the person was convicted.” Thus, if a person was indicted on three charges but was only found guilty of one of them, then the two charges that did not result in a conviction can both be expunged from the person’s record. As explained in this summary of Tennessee’s expungement law, dismissed charges are also eligible to be expunged from a person’s record free of charge.
Although the text of Tenn. Code Ann. § 40-32-101(j) is and always has been clear, government attorneys who oppose the entire concept of expungement persistently refused to acknowledge that this law actually meant what it said. Sadly, denying people access to expungement also commonly results in job loss, housing discrimination, and other lost opportunities. Until last week, however, people in Nashville who sought to take advantage of the new partial expungement law were all denied their rights.
Fortunately, several recent events finally caused the law to be enforced in Nashville as intended.
First, after being denied the opportunity to expunge a dismissed charge on his record stemming from a two-count indictment, Mr. Bobby Doe (a pseudonym) decided to demand his rights and sue. Regrettably, the Metro Legal Department had incorrectly advised the Criminal Court Clerk not to process any partial expungements after the new partial expungement law went into effect in July 2015. Unfortunately, because most people can’t afford to hire an attorney to fight the government, others who had been wrongfully denied their rights under the new partial expungement law did nothing about it. However, because he needed his record expunged for a job opportunity, Mr. Doe insisted that his rights be respected. Accordingly, Mr. Doe hired the author of this blog post (Daniel Horwitz) to represent him. This author then filed suit in Davidson County Criminal Court on August 8, 2016 and demanded a court order directing the clerk to expunge Mr. Doe’s dismissed charge.
Next, three weeks after Mr. Doe filed suit, the Attorney General finally issued an opinion interpreting Tenn. Code Ann. § 40-32-101(j). It is not clear whether the release of the Attorney General’s opinion – which had been requested long beforehand but had not been forthcoming – was prompted by Mr. Doe’s lawsuit. Regardless, however, the Attorney General opined that the partial expungement law did, in fact, mean exactly what it said. Thus, the opinion confirms that: “criminal court clerks must destroy public records that relate  to offenses for which a petitioner was not convicted.”
Despite the Attorney General’s opinion on the matter, however, local prosecutors and attorneys in the Metro Legal Department still refused to comply. Accordingly, they attempted to fight Mr. Doe’s lawsuit in court, and a contested hearing was held on September 16, 2016. Thereafter, on September 20, 2016, the Court issued a groundbreaking order (accessible here) in favor of Mr. Doe. The Court’s ruling declared that Mr. Doe’s reading was correct and that the Government’s reading had been wrong all along. Consequently, the Court ordered the clerk to expunge Mr. Doe’s record immediately.
Finally, faced with binding judicial precedent on the matter, the government’s attorneys have officially backed down, and hundreds of partial expungements have since followed. The ruling is a major victory for expungement access that will ultimately benefit tens of thousands of people. However, it should never have taken fourteen months and a court order for Metro officials to comply with the law in the first place.
If you think that you may be eligible for expungement in Nashville, please click here for a summary of Tennessee’s expungement law or click here to purchase an expungement eligibility evaluation from a licensed Tennessee attorney. You can also reach the author at daniel@ExpungementNashville.com