TITLE FIVE — EXPUNGEMENT PROCEEDINGS
Rule 38.2. Vacatur of Arrest
Authority. The Attorney General may, upon motion to the court, vacate an arrest of any person on the grounds that such arrest was not conducted in good faith, was a result of a corrupt practice by a law enforcement officer, or was conducted absent sufficient or adequate evidence, as 6 R. Stat. § 131.608 provides.
Who May Move. Only the Attorney General may move under this rule. No other person, and no other officer, may move to vacate an arrest, and the court shall not vacate an arrest upon its own initiative. An assistant attorney general or other state attorney may sign and file the motion on the authority of the Attorney General, and the motion shall so state.
Remedies of the Arrested Person. A person seeking relief from an arrest otherwise than under this rule may file a writ of habeas corpus at any time under 7 R. Stat. § 133.001, or may petition for expungement under Rule 36. A person may request that the Attorney General move under this rule; the request is not a motion and the court shall take no action upon it.
Not Applicable to Convictions. The authority conferred by this rule shall not apply to convictions by the court, as 6 R. Stat. § 131.608(a) provides. No motion under this rule shall be directed to a conviction, to an adjudication of guilt, or to a sentence, and the court shall deny any motion so directed. Relief from a conviction is obtained under Rule 30 or under Title Five.
Form and Contents of the Motion. The motion shall be in writing, shall be filed and served as Rule 32 provides, and shall state:
The username of the arrested person;
The date, time, and place of the arrest;
The arresting officer and the agency employing that officer, so far as they are known;
Each offense recorded upon the arrest, and the offense record sought to be vacated;
The case number of any criminal proceeding arising from the arrest, and its status;
That the arrest is not a conviction;
The ground relied upon, being that the arrest was not conducted in good faith, that it was the result of a corrupt practice by a law enforcement officer, or that it was conducted absent sufficient or adequate evidence; and
The facts supporting that ground.
Where Filed. Where a criminal proceeding arising from the arrest is pending or has been concluded, the motion is filed in that case. Where no case was opened, the motion opens a matter of the appropriate type, naming the arrested person.
Determination.
Where such authority is exercised, the court shall grant the motion, as 6 R. Stat. § 131.608(b) requires. The court’s function upon a motion regular upon its face is ministerial.
The court shall satisfy itself only that the motion is made upon the authority of the Attorney General, identifies the arrest with reasonable certainty, is not directed to a conviction, and states a ground enumerated in Rule 38.2(5)(g).
No hearing is required. The court may hear the arrested person upon request, and shall hear that person before denying a motion made upon that person’s request.
Expungement Upon Vacatur. Upon granting the motion the court shall issue an expungement of the offense record vacated, as 6 R. Stat. § 131.608(b) requires. The expungement issues in the manner Rule 38(3) prescribes. No petition under Rule 36 is required, no class applies, no waiting period applies, and no condition of community service shall be imposed.
Contents of the Order. The order shall state the username of the arrested person, the arrest vacated with the date and time of it, the offense record expunged, the ground upon which the arrest was vacated, and that the arrest is vacated and the record expunged.
Notice; Recording. The court shall cause notice of the order to be given to the arrested person, to the Attorney General, and to the agency employing the arresting officer. The clerk shall record the order as 3 R. Stat. § 131.102 requires. The court may direct that a copy of an order founded upon a corrupt practice be transmitted to the head of the agency employing the officer.
Effect.
The arrest is vacated and the offense record expunged. A vacated arrest is not an arrest-based criminal record for the purpose of determining eligibility under Rule 36.
Vacatur of an arrest does not vacate a conviction, an adjudication of guilt, or a sentence.
Rule 38(6) states the limits of every expungement, and applies to an expungement issued under this rule.
Scope. This rule prescribes procedure only. It creates no right of action and confers no substantive right upon any person.