Many felony charges can also be expunged – even after a guilty plea or conviction. And like misdemeanors, any felony charge that was dismissed, not prosecuted or in which you were found not guilty can be expunged.
Expungement of Certain Felonies
Mississippi law allows for the expungement of the following felony convictions:
- A bad check offense under Miss. Code Ann. § 97-19-55;
- Possession of a controlled substance or paraphernalia under Miss. Code Ann. § 41-29-139(c) or (d);
- False pretense under Miss. Code Ann. § 97-19-39;
- Larceny under Miss. Code Ann. § 97-17-41;
- Malicious mischief under Miss. Code Ann. § 97-17-67; or
- Shoplifting under Miss. Code Ann. § 97-23-93.
A person is only eligible to expunge one of the above felony convictions. Further, any person convicted of one of the above felonies must wait 5 years from the successful completion of all terms and conditions of the sentence before expungement is available. Miss. Code Ann. § 99-19-71(2)(a).
Mississippi allows for the expungement of additional felony convictions if committed while the person was under the age of twenty-one (21). In these cases, any one felony conviction may be expunged 5 years after the successful completion of all terms and conditions of the sentence for the conviction. However, eligibility for an expungement under Miss. Code Ann. § 99-19-71(2)(b) does not apply to felonies classified as a crime of violence in Miss. Code Ann. §97-3-2 and any felony that, in the determination of the circuit court, is related to the distribution of a controlled substance and in the court’s discretion it should not be expunged.
The felonies considered crimes of violence include:
(a) Driving under the influence as provided in Sections 63-11-30(5) and 63-11-30(12)(d);
(b) Murder and attempted murder as provided in Sections 97-1-7(2), 97-3-19, 97-3-23 and 97-3-25;
(c) Aggravated assault as provided in Sections 97-3-7(2)(a) and (b) and 97-3-7(4)(a);
(d) Manslaughter as provided in Sections 97-3-27, 97-3-29, 97-3-31, 97-3-33, 97-3-35, 97-3-39, 97-3-41, 97-3-43, 97-3-45 and 97-3-47;
(e) Killing of an unborn child as provided in Sections 97-3-37(2)(a) and 97-3-37(2)(b);
(f) Kidnapping as provided in Section 97-3-53;
(g) Human trafficking as provided in Section 97-3-54.1;
(h) Poisoning as provided in Section 97-3-61;
(i) Rape as provided in Sections 97-3-65 and 97-3-71;
(j) Robbery as provided in Sections 97-3-73 and 97-3-79;
(k) Sexual battery as provided in Section 97-3-95;
(l) Drive-by shooting or bombing as provided in Section 97-3-109;
(m) Carjacking as provided in Section 97-3-117;
(n) Felonious neglect, abuse or battery of a child as provided in Section 97-5-39;
(o) Burglary of a dwelling as provided in Sections 97-17-23 and 97-17-37;
(p) Use of explosives or weapons of mass destruction as provided in Section 97-37-25;
(q) Statutory rape as provided in Section 97-3-65(1), but this classification is rebuttable on hearing by a judge;
(r) Exploitation of a child as provided in Section 97-5-33;
(s) Gratification of lust as provided in Section 97-5-23; and
(t) Shooting into a dwelling as provided in Section 97-37-29.
SO WHAT CAN BE EXPUNGED?
If you have ever been arrested or charged with a misdemeanor offense in Mississippi, contact us at your convenience to discuss your options for obtaining an expungement. There are several methods to expunge a misdemeanor charge from your record in Mississippi, including the following:
Expungement of First Offense
By statute in Mississippi, “Any person who is convicted of a misdemeanor, excluding a conviction for a traffic violation, and who is a first offender, may petition the justice, county, circuit or municipal court in which the conviction was had for an order to expunge any such conviction from all public records.” Miss. Code Ann. § 99-19-71.
In some instances a person may seek the expungement of additional misdemeanor convictions obtained in justice court and municipal court. Miss. Code Ann. § 9-11-15(3) and Miss. Code Ann. § 21-23-7(6) provide that upon prior notice to the prosecuting attorney and upon a showing in open court of (1) rehabilitation, (2) good conduct for a period of 2 years since the last conviction in any court and (3) that the best interest of society would be served, the court may, in its discretion, order the record of conviction of a person of any or all misdemeanors in that court expunged. Once the expungement is granted, the petitioner legally stands as though he had never been convicted of the said misdemeanor(s) and may lawfully so respond to any query of prior convictions.
Expungement after Nonadjudication
When a misdemeanor charge has been nonadjudicated, Mississippi law provides that upon successful completion of court-imposed conditions, the charge is to be dismissed. Upon dismissal, and in other circumstances, the law directs the Court to expunge the record upon petition to the Court.
Expungement after Dismissal or Case Retired to File
Upon petition to the Court, Mississippi law requires the Court to expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of the case. Miss. Code Ann. § 99-19-71(4); Miss. Code Ann. § 21-23-7(12)
Expungement of Minor in Possession Charge
In addition to expungement under one of the methods discussed above, a minor in possession or “MIP” conviction can be expunged in certain circumstances by separate statute “not sooner than one (1) year after the dismissal of the charge or completion of any sentence and/or payment of any fine.” Miss. Code Ann. § 67-3-70(6).
You must meet certain conditions for expungement. Mississippi law sets out six (6) conditions which individuals must meet to qualify for an expungement in Mississippi:
- Did not refuse a blood, breath, or urine test;
- Your blood alcohol concentration was below .16% if tested;
- At the time of arrest, you were not the holder of a commercial driver’s license or a commercial learner’s permit;
- After your conviction, you completed all terms and conditions of the sentence imposed for the conviction;
- You have not been convicted of nor have any other driving under the influence charges pending; and
- You can show the court why the conviction should be expunged.
Breath Test Refusal
First, if you refused a blood, breath, or urine test at the time you were charged with the DUI in Mississippi you likely will not qualify for a DUI. Often when you are charged with a DUI and you refused a test, it is in your best interest to hire an attorney to file a petition contesting the breath test refusal. If you win at the breath test refusal hearing, you may still qualify for an expungement. Otherwise, you may not qualify for a DUI expungement down the road.
Blood Alcohol Content (BAC)
Second, when the arresting agency performed the alcohol-related tests, your blood alcohol concentration (BAC) could not test above 16% when they performed the test(s). Courts generally will not expunge a DUI where the blood alcohol concentration was more than double the legal limit. Therefore, it is recommended again you retain an attorney when you are first charged to represent you on your Mississippi DUI defense. Doing so could greatly help with your expungement later.
Commercial Driver’s License
Next, if you possessed a commercial driver’s license (CDL) when you received the DUI, then you will not qualify for expungement. Unfortunately, this is a hard and fast rule in Mississippi.
Complete Your Sentence And Pay The Fines
Further, you must complete all the terms and conditions of the sentence imposed for the conviction of the Mississippi DUI. This can include attending and completing the Mississippi Alcohol Safety Education Program (MASEP), attending a victim’s impact panel, paying all fines, completing all probation, and serving any jail time. You must complete all of the terms of your sentence and pay all fines before you can apply for a Mississippi DUI Expungement.
Do Not Get Any Other Driving Under The Influence Charges Or Convictions
Additionally, any convictions or pending charges can ruin your chances of an expungement. It’s extremely important to keep that in mind after you have received a DUI conviction.
- Differences in Conviction and Pending Charges
- Conviction = you were charged, tried, found guilty or plead guilty, and convicted of another driving under the influence crime.
- Pending Charges = you were charged, but have not resolved the charge. An example would be you are charged and waiting on your court date.
Show The Court Why Expungement Of The Conviction Is Proper
Lastly, the court will not grant an expungement for the sake of granting it. You show why the court the reason it should restore you to the legal position you held before your conviction.
A common way to show the court the conviction expungement is proper is to show you rehabilitation. Often showing you went on to obtain a career or completed school is a valuable way of showing rehabilitation. Every jurisdiction and judge looks at things a little differently though.
What crimes are eligible for Expungement in Mississippi?
Any person who has been convicted of a misdemeanor, excluding a conviction for a traffic violation, and who is a first offender, may petition the justice, county, circuit or municipal court in which the conviction was had for an or to expunge such conviction from all public records.
In 2010, the Mississippi felony expungement law was enacted which allows six felony convictions to be expunged for first time offenders of the following felony convictions:
• Malicious mischief
• Possession of controlled substances (including marijuana or drug paraphernalia)
• Bad checks and
• False pretense
You are not eligible for expungement until five (5) years after you have completed all of the terms and conditions of the sentence (incarceration, fines, probation, etc.), and you are only allowed to do this once.
Expungement due to Dismissal of the Charge
Section 99-19-71(4) of the Mississippi Code states: “Upon petition therefor, a justice, county, circuit or municipal court [basically any judge or any court in Mississippi] shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.”
First offense DUI Convictions
Mississippi law allows for some first DUI convictions can be expunged, if it’s a FIRST OFFENSE DUI, the DUI CONVICTION must be PRIOR to the effective date of the new law (October 1, 2014) as well as five other requirements that must be met:
- All conditions of the sentence must have been successfully completed;
- Petitioner did not refuse a breath or blood test;
- Petitioner’s blood alcohol concentration must have been below (.16%) if test results are available;
- Petitioner has no subsequent DUI Conviction nor has a pending DUI charge; and
- Petitioner must provide justification for the expungement
In recent years, many people have relaxed their opinions on the use of controlled substances, and many believe that drugs such as marijuana should be completely legal for recreational and medicinal use. However, the State of Mississippi does not share that opinion. While younger Mississippians and college students may be more stereotypical users of controlled substances, all residents of our State should know what legal consequences may come along with the possession of those substances.
Mississippi’s simple possession law depends on the amount of whatever drug is found on the person. For marijuana and similar synthetic substances, weight is the metric used to dole out punishment. For other substances classified in Schedules I or II besides marijuana (such as LSD), the punishment is determined by the amount of “dosage units,” the form on which depend on the drug.
This article will focus mainly on marijuana, as it is far and away the most common Schedule I drug used by Mississippians. Mississippi Code Annotated § 41-29-139(c) defines simple possession of drugs as the unlawful possession of any controlled substance that is not validly prescribed. The punishment for possession of marijuana starts at thirty (30) grams or less, and is punishable by a fine of between $100 and $250 with no jail time. This section probably pertains to more people than others, as this is a common amount of marijuana used for personal recreation.
As light as the above punishment may seem, it increases with every subsequent violation. A second conviction under the above law within 2 years will get you a $250 fine and between 5 and 60 days in the county jail, as well as mandatory participation in a drug education program. A third violation within 2 years is a misdemeanor that comes with a fine between $250 and $500, and confinement in the county jail between 5 days and 6 months. Don’t forget; this is the smallest amount of marijuana that Mississippi law speaks to, and naturally the possible fines and jail time increase with the amount.
Penalties are considerably stricter when a controlled substance is found in a motor vehicle (not including the trunk). Possession of between 1 and 30 grams of marijuana while operating a motor vehicle is automatically a misdemeanor, and may lead to a fine of not more than $1,000 and no more than 90 days in the county jail. Miss. Code Ann. § 41-29-139(c)(2)(A)(2). Of course, the punishment increases when higher amounts of marijuana are discovered.
More prevalent with younger Mississippians, and college students in particular, is the possession of paraphernalia with which to use controlled substances. In Mississippi, it is illegal for a person not authorized by a lawful authority to use or possess paraphernalia used to engage in drug use. Mississippi Code Annotated § 41-29-139(d)(1) contains 22 different words to describe “use” or “grow,” and therefore paraphernalia can take many forms. Violation of the section regarding paraphernalia is a misdemeanor, and may lead to a stay in the county jail no longer than 6 months, a $500 fine, or both. When paraphernalia is sold to someone under 18 years old who is at least 3 years younger than the seller, the maximum punishment doubles to a jail sentence of up to 1 year, a fine of up to $1,000, or both.
To many, marijuana and other controlled substances are simply a source of entertainment or an escape from the stress of daily life. However, when the State of Mississippi gets involved, these substances can become drain on your finances, and possibly even your freedom.
Under new MS Law any fourth or subsequent conviction of DUI, WITHOUT regard to the TIME PERIOD within which the violations occurred, the person SHALL be guilty of a FELONY and fined not less than $3,000.00 nor more than $10,000.00, and SHALL serve NOT LESS than two (2) years nor more than ten (10) years in the custody of the MS Dept. of Corrections. In addition, a person convicted of a fourth or subsequent offense may be ineligible to exercise the privilege to operate a motor vehicle for 10 years. However, a person may be eligible for expunction of a DUI conviction if one meets certain criteria. Please email our office for further details.