New Alabama Expungement Law.
June 13, 2014 – Birmingham Business Journal
Alabama Expungement Law – Stephen W. Shaw
For many years, individual business owners have been faced with a dilemma in hiring and promoting employees. Are they influenced by the employer’s knowledge of an applicants criminal record even if the event may have occurred decades before. Should it be a consideration that someone applying for a job at age 40 was arrested for a public intoxication charge in their early 20s? Should an employee be denied a promotion because a neighbor made a false criminal charge against them? Beginning in July, many individuals in Alabama will have the opportunity to have their criminal arrest record expunged, or destroyed, for certain misdemeanor and felony charges. How can this help businesses?
One provision of the new law specifically states “after the expungement of records…the charge shall be deemed to never have occurred…the court and other agencies shall reply to any inquiry that no record exists on the matter.” Continuing the law provides that the petitioner whose record was expunged “shall not have to disclose the fact of the record…on an application for employment, credit or other type application.”
Many applications include a provision concerning arrests or criminal charges even if the individual was never convicted or if it was later determined that the charges were baseless. The mere fact that someone has been arrested remains a permanent mark on their record, even if they have gone decades without any other incidents. The issue becomes more complicated due to the ease of online court records. Through the efforts of one of the sponsors of the law, Sen. Roger Bedford, and bipartisan support of the Legislature and the governor, the new law can help businesses by opening up the pool of otherwise qualified applicants and allowing the employer to have a more objective view of an applicant, not tarnished by an isolated indiscretion or mistake.
When confronted with a job application which includes the listing of a criminal charge, the employer is faced with the consideration of whether this person should be given a second chance or should an arrest without a conviction even be considered. If this person was hired or promoted over someone else, does this subject the employer to potential lawsuits for rejecting another individual?
A cornerstone of our judicial system is that someone is considered to be innocent until proven guilty beyond a reasonable doubt. However, if someone is charged with a crime and the charges are unfounded or dismissed, the public records create a scar on an otherwise qualified employee’s record. An underlying theme of the new law is that if someone’s case is dismissed, it should not be held against them. The new law applies only to arrests or charges and not to convictions. Also excluded are certain serious crimes of violence. For the most part, the law would cover incidents such as public intoxication, driving under the influence, drug possession charges, disorderly conduct, writing bad checks, driving offenses and certain felonies. Many individuals have gone through alcohol awareness programs or other classes and, as a result of their compliance, prosecutors have agreed to dismiss charges. Many of these programs have also been very successful in allowing the individual the opportunity to attain the skills so that the behavior which caused them to be arrested will not occur again. Having learned from these experiences, the individuals may now may be able to have their arrest records expunged.
A judge will have the opportunity to consider all factors related to the charge before making the determination of whether to grant the petition to expunge. If the judge grants the motion then the records in the court system would be destroyed but a permanent file would still be maintained by law enforcement.
Employers should become knowledgeable of the law and enable their human resource departments to make any necessary revisions to their employment policies. Thus, the door may be opened for more qualified employees with protection for employers in their decision making process.
Stephen W. Shaw is an attorney with Redden Mills Clark & Shaw LLP. He can be reached at [email protected] or 205-322-0457.