Expungement of Tennessee Criminal Record

Quite often someone will say to me, I have read where I can get my DUI taken off of my record, well in Tennessee that is wrong, no other way to put it, not possible, not now, not ever. There are many instances where both judicial diversion and pre trial diversion are available in Tennessee, a DUI is absolutely not one of them. Ok so what is judicial diversion and what is pre trial diversion? And yes they are two separate things, accomplishing the same goal, but with one important difference.

Judicial diversion is under a statute in Tennessee entitled 40-35-313. It is quite possibly the most important statute to first time offenders. This statute allows someone to complete a probationary term, (should all requirements be satisfied), the judge may then allow you to expunge these charges off of your record forever. Judicial diversion allows you to honestly answer on all applications (after completion of probation) that you have never plead guilty to a crime. There are several crimes to which you cannot use 40-35-313, many involve violence and sex crimes, and again you cannot use 40-35-313 on a Nashville Tennessee DUI charge. The main difference in judicial diversion and pre trial diversion, you agree in a judicial diversion 40-35-313 that you are going to be convicted of the crime that you are on probation for, should you not complete the probation, you in effect have a conviction hanging over your head while you are on probation, and if you fail at probation, then it becomes a conviction, and the judge can have a sentencing hearing and sentence you to jail. Should you complete the probation you are eligible to have your entire record cleared of the charges, ie all records destroyed.

What is pre trial diversion in Tennessee? Pre trial diversion involves actually suspending the prosecution of your case. If you will, the prosecutor agrees to hold the prosecution of your case until you complete all of the requirements of probation. In pre trial you have not agreed to be guilty of a crime, should you fail to complete the probation, the prosecution of your crime will start again if you fail the probation time, you have not agreed that you will automatically be guilty of the crime, should you not complete your probation, and once again this is not available for a Nashville DUI. Just like judicial diversion there are crimes to which this pre trial program is not available, such as some violent crimes and sex crimes. Once all the terms of probation have been met you are illegible to have your record expunged, ie all the paperwork destroyed.

To qualify for these programs it is necessary to complete a TBI records check, most courts await this decision from the TBI before proceeding under either program. As I represent many people in many different counties in Tennessee, these programs are administered very differently from county to county, some are very formal in using these programs, ie quite a lot of paperwork by the attorney to make sure the client gets in the program and gets their record expunged, to some counties simply holding the charge in abeyance, ie just setting it aside in the clerks office for a year and then returning a year later to dismiss the charge as long as the client has done everything the judge has requested.

Does the state ever refuse diversion? Yes the state does refuse sometimes, following the proper procedure rules in Tennessee you may appeal this denial to the Court of Appeals or if you are in General Sessions you may appeal to the trial courts for a determination on whether the diversion was properly denied.

There are many time specific requirements, prior conviction determinations, and prior sentence served determinations that have to be made in applying either of these programs. Should you wish to consult with me, please call my law office at (615) 308-2633.http://nashvilleduiinfo.com

I have used both of these programs to help many first time offenders keep life altering convictions off of their records