Opinion Number ( 1994 )

Dear Superintendent Orticke:

Your request for an opinion concerning expungement of criminal records has been forwarded to me for research and reply. You asked the following questions:

1. May records of D.W.I. arrests and/or convictions, pursuant to La. R.S. 14:98, be expunged even if La. C.Cr.P. art. 894 is invoked?

2. May records of convictions and guilty pleas for first offense possession, in which upon fulfillment of the terms of probation the defendant is discharged and the charges dismissed pursuant to the procedure contained in La. R.S. 40:983, be expunged?

In response to your first question, misdemeanor and felony arrests for D.W.I., pursuant to La. R.S. 14:98, which do not result in convictions may be expunged from the public records pursuant to the requirements and procedures of La. R.S. 44:9, as any other arrest. In State v. Bradley, 360 So.2d 858 (La. 1978), the Supreme Court held that the final sentence of La. R.S.44:9(A)(1), which prohibited the expungement of arrests for the misdemeanor offense of D.W.I., was unconstitutional as a violation of defendant's equal protection rights. The Court, using a rational basis test, found that the State could provide no rational basis for excluding D.W.I. arrests from the expungement provisions of La. R.S. 44:9(A)(1).

As for expungement of D.W.I. convictions, La. C.Cr.P. art. 894 outlines a scheme whereby the sentence for a misdemeanor conviction may be suspended for a probationary period fixed by the court. When the probationary period has ended without any subsequent conviction of the defendant and without any new charges pending, the court may set aside the conviction and dismiss the prosecution. The dismissal has the same effect as an acquittal, except that the prosecution can serve as the basis for prosecution in a subsequent multiple offender proceeding. The record of the misdemeanor conviction for D.W.I. may then be expunged just as any other acquittal as provided by La. R.S.44:9(B). See State v. Sims, 357 So.2d 1095 (La. 1978). However, even when a misdemeanor D.W.I. conviction is expunged, a record of the conviction may be kept and used for two purposes: (1) for charging and penalty enhancement purposes upon subsequent prosecution for D.W.I and (2) to prevent offenders from receiving the benefits of Article 894 more than once in five years. Id.

Under La. R.S. 44:9(E), the destruction of any records pertaining to the arrest and prosecution of any person convicted of a felony is prohibited. It should be noted that La. R.S.14:98(F) provides that after five years a prior D.W.I. offense cannot be used as a predicate offense for sentencing purposes:

[A]ny offense under this statute committed more than five years prior to the commission of the crime for which the defendant is being tried shall not be considered in the assessment of penalties hereunder.

This provision does not, however, amount to an expungement.

Thus, although a misdemeanor conviction for D.W.I. may be expunged if the conditions of La. R.S. 44:9 are met, felony convictions may not be expunged. See La. C.Cr.P. art. 893(F).

In response to your second question, arrests for first offense possession should be treated as any other arrest for expungement purposes. La. R.S. 40:983 provides a scheme applicable to convictions for first offense possession under which the conviction may be discharged and dismissed upon fulfillment of the terms and conditions of probation imposed by the court. Thereafter, in accordance with La. R.S. 44:9(B), the record of the conviction may be expunged from the public records. However, La. R.S. 40:983(E) provides: "Discharge and dismissal under this Section may occur only once with respect to any person." Therefore, information as to the conviction may be kept to prevent a second discharge and dismissal under this statute. See Sims, supra.

In conclusion, both misdemeanor and felony arrests which do not result in conviction may be expunged from the public records pursuant to La. R.S. 44:9. Misdemeanor convictions for D.W.I. which are dismissed pursuant to La. C.Cr.P. art. 894 may be expunged from the public records, but limited records may be retained for enhancement of the penalty upon subsequent arrest and conviction for D.W.I. for a five year period following conviction and to prevent the offender from receiving the benefits of Article 894 for five years. Felony convictions for D.W.I. may not be expunged. Convictions under La. R.S. 40:983 for first offense possession may be expunged from the public records once a discharge and dismissal is obtained following satisfactory completion of the probationary period. As when a conviction is dismissed pursuant to Opinion No. 93-786 La. C.Cr.P. article 894, limited records may be retained for the purpose of preventing another dismissal under La. R.S. 40:983.

I hope the foregoing has adequately answered your questions. If our office can be of any further assistance, please do not hesitate to contact us.

Sincerely,

RICHARD P. IEYOUB Attorney General

BY: M. PATRICIA JONES Assistant Attorney General

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