2021 -- H 5304

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LC000073

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2021

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A N   A C T

RELATING TO CRIMINAL PROCEDURE -- IDENTIFICATION AND APPREHENSION OF

CRIMINALS

     Introduced By: Representatives Williams, Knight, Biah, Giraldo, Morales, and Batista

     Date Introduced: January 29, 2021

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 12-1-12 and 12-1-12.1 of the General Laws in Chapter 12-1 entitled

"Identification and Apprehension of Criminals" are hereby amended to read as follows:

     12-1-12. Destruction or sealing of records of persons acquitted or otherwise

exonerated.

     (a)(1) Any fingerprint, photograph, physical measurements, or other record of

identification, heretofore or hereafter taken by or under the direction of the attorney general, the

superintendent of state police, the member or members of the police department of any city or town

or any other officer authorized by this chapter to take them, of a person under arrest, prior to the

final conviction of the person for the offense then charged, shall be destroyed by all offices or

departments having the custody or possession within sixty (60) days after there has been an

acquittal, dismissal, no true bill, no information, or the person has been otherwise exonerated from

the offense with which he or she is charged, and the clerk of court where the exoneration has taken

place shall, consistent with § 12-1-12.1, place under seal all records of the person in the case

including all records of the division of criminal identification established by § 12-1-4.

     (2) Any person previously convicted of any felony offense shall not be entitled to relief

under this section except for those records in cases of acquittal after trial.

     (3) Any person who shall violate any provision of this section shall be fined not exceeding

one hundred dollars ($100).

     (b) Requirements of this section shall also apply to persons detained by police, but not

arrested or charged with an offense, or to persons against whom charges have been filed by the

court, and the period of such filing has expired.

     (c) Notwithstanding any other provision of this section, any person who has been charged

with a complaint for a crime involving domestic violence where the complaint was filed upon a

plea of not guilty, guilty or nolo contendere pursuant to § 12-10-12, must wait a period of three (3)

years from the date of filing before the records associated with the charge can be expunged, sealed

or otherwise destroyed.

     12-1-12.1. Motion for sealing of records of persons acquitted or otherwise exonerated.

     (a) Any person who is acquitted or otherwise exonerated of all counts in a criminal case,

including, but not limited to, dismissal or filing of a no true bill or no information, may file a motion

for the sealing of his or her court records in the case, provided, that no person who has been

convicted of a felony shall be entitled to relief under this section except for those records in cases

of acquittal after trial.

     (b) Any person filing a motion for sealing his or her court records pursuant to this section

shall give notice of the hearing date set by the court to the department of the attorney general and

the police department that originally brought the charge against the person at least ten (10) days

prior to the hearing.

     (c) If the court, after the hearing at which all relevant testimony and information shall be

considered, finds that the person is entitled to the sealing of the records, it shall order the sealing

of the court records of the person in that case.

     (d) The clerk of the court shall, within forty-five (45) days of the order of the court granting

the motion, place under seal the court records in the case in which the acquittal, dismissal, no true

bill, no information or other exoneration has been entered.

     (e) Notwithstanding any other provision of this section, in all cases involving a filing

subsequent to a plea of not guilty, guilty, or nolo contendere to a charge of a crime involving

domestic violence, the court having jurisdiction over the case shall retain the records of the case

for a period of three (3) years from the date of filing. The records shall not be expunged or sealed

for a period of three (3) years from the date of the filing.

     (f) The defendant shall be advised at the hearing that any and all bail money relating to a

case that remains on deposit and is if not claimed at the time of within forty-eight (48) hours from

the time of the sealing shall be escheated to the state's general treasury in accordance with chapter

12 of title 8.

     SECTION 2. Sections 12-1.3-2, 12-1.3-3 and 12-1.3-4 of the General Laws in Chapter 12-

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1.3 entitled "Expungement of Criminal Records" are hereby amended to read as follows:

     12-1.3-2. Motion for expungement.

     (a) Any person who is a first offender may file a motion for the expungement of all records

and records of conviction for a felony or misdemeanor by filing a motion in the court in which the

conviction took place; provided, that no person who has been convicted of a crime of violence shall

have his or her records and records of related to that conviction expunged; and provided, that all

outstanding court-imposed or court-related fees, fines, costs, assessments, charges, and/or any other

monetary obligations have been paid, unless such amounts are reduced or waived by order of the

court.

     (b) Notwithstanding § 12-1.3-1(3) ("first offender"), any person who has been convicted

of more than one misdemeanor, but fewer than six (6) misdemeanors, and has not been convicted

of a felony offense constituting a crime of violence may file a motion for the expungement of any

or all of those misdemeanors by filing a motion in the court in which the convictions took place;

provided that convictions for offenses under chapter 29 of title 12, § 31-27-2 or § 31-27-2.1 are not

eligible for and may not be expunged under this subsection; provided, however, that convictions

for offenses under chapter 29 of title 12 or §§ 31-27-2 or 31-27-2.1 shall not be counted toward the

number of relevant convictions under this subsection and further, provided, that any person with

only one conviction under chapter 29 of title 12 or §§ 31-27-2 or 31-27-2.1 shall be eligible to have

their records expunged for those offenses five (5) years after the conviction occurs and any person

with no more than two (2) convictions for those offenses shall be eligible to have those records

expunged ten (10) years after those convictions occur if they have not otherwise been arrested or

convicted for any other offense subsequent to the last conviction.

     (c) Subject to subsection (a), a person may file a motion for the expungement of records

relating to a misdemeanor conviction after five (5) three (3) years from the date of the completion

of his or her sentence.

     (d) Subject to subsection (a), a person may file a motion for the expungement of records

relating to a felony conviction after ten (10) five (5) years from the date of the completion of his or

her sentence. Notwithstanding § 12-1.3-1(3) ("first offender"), any person who has been convicted

of more than one felony, but fewer than six (6) felonies, and has not been convicted of a felony

offense constituting a crime of violence, may file a motion for the expungement of any or all of

those felonies by filing a motion in the court in which the convictions took place; provided, that

convictions for felony offenses under chapter 29 of title 12, § 31-27-2 or § 31-27-2.1 are not eligible

for and may not be expunged under this subsection.

     (e) Subject to § 12-19-19(c), and without regard to subsections (a) through (c) of this

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section, a person may file a motion for the expungement of records relating to a deferred sentence

upon its completion, after which the court will hold a hearing on the motion.

     (f) Subject to subsection (b) of this section, a person may file a motion for the expungement

of records relating to misdemeanor convictions after ten (10) three (3) years from the date of the

completion of their last sentence. Further subject to subsection (b) of this section, a person may file

a motion for the expungement of records relating to felony convictions after ten (10) years from

the date of the completion of their last sentence.

     (g) Notwithstanding the provisions of subsections (a) through (f) of this section, a person

may file a motion for the expungement of records related to an offense that has been decriminalized

subsequent to the date of their conviction, after which the court will hold a hearing on the motion

in the court in which the original conviction took place. The court shall expunge any records of

conviction for any offense that has been decriminalized.

     12-1.3-3. Motion for expungement -- Notice -- Hearing -- Criteria for granting.

     (a) Any person filing a motion for expungement of the records of his or her conviction

pursuant to § 12-1.3-2 shall give notice of the hearing date set by the court to the department of the

attorney general and the police department that originally brought the charge against the person at

least ten (10) days prior to that date.

     (b) The court, after the hearing at which all relevant testimony and information shall be

considered, may, in its discretion, shall order the expungement of the records of conviction of the

person filing the motion if it finds:

     (1)(i) That in the five (5) three (3) years preceding the filing of the motion, if the conviction

was for a misdemeanor, or in the ten (10) five (5) years preceding the filing of the motion, if the

conviction was for a felony, the petitioner has not been convicted nor arrested for any felony or

misdemeanor; there are no criminal proceedings pending against the person; that the person does

not owe any outstanding court-imposed or court-related fees, fines, costs, assessments, or charges,

unless such amounts are reduced or waived by order of the court, and he or she has exhibited good

moral character;

     (ii) That after a hearing held under the provisions of § 12-19-19(c), the court finds that the

person has complied with all of the terms and conditions of the deferral agreement including, but

not limited to, the payment in full of any court-ordered fines, fees, costs, assessments, and

restitution to victims of crimes; there are no criminal proceedings pending against the person; and

he or she has established good moral character. Provided, that no person who has been convicted

of a crime of violence shall have their records relating to a deferred sentence expunged; or

     (iii) Subject only to §§ 12-1.3-2(b) and (f), that in the ten (10) three (3) years preceding the

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filing of the motion, if the convictions were for multiple misdemeanors, or ten (10) years if the

convictions were for multiple felonies, the petitioner has not been convicted nor arrested for any

felony or misdemeanor; there are no criminal proceedings pending against the person; and they

have exhibited good moral character; and, provided, subject to § 12-1.3-2 (b), (d) and (f), that

convictions for offenses under chapter 29 of title 12, § 31-27-2 or § 31-27-2.1 are not eligible and

may not be expunged under this subsection.

     (2) That the petitioner's rehabilitation has been attained to the court's satisfaction and the

expungement of the records of his or her conviction is consistent with the public interest.

     (c) If the court grants the motion, it shall, after payment by the petitioner of a one hundred

dollar ($100) fee to be paid to the court, order all records and records of conviction relating to the

conviction expunged and all index and other references to it removed from public inspection. A

copy of the order of the court shall be sent to any law enforcement agency and other agency known

by either the petitioner, the department of the attorney general, or the court to have possession of

the record including, but not limited to, the department of probation and parole. Compliance with

the order shall be according to the terms specified by the court.

     (d) The defendant shall be advised at the hearing that any and all bail money relating to a

case that remains on deposit and is not claimed at the time of expungement shall be escheated to

the state's general treasury in accordance with chapter 12 of title 8; provided, however, that any

fees due pursuant to subsection (c) of this section, shall be paid to the court from the bail money.

     (e) In cases of expungement sought pursuant to § 12-1.3-2(g), the court shall, after a hearing

at which it finds that all conditions of the original criminal sentence have been completed, and any

and all fines, fees, and costs related to the conviction have been paid in full, order the expungement

without cost to the petitioner. At the hearing, the court may require the petitioner to demonstrate

that the prior criminal conviction would qualify as a decriminalized offense under current law. The

demonstration may include, but is not limited to, an affidavit signed by the petitioner attesting to

the fact that the prior conviction qualifies as a decriminalized offense under current Rhode Island

law.

     12-1.3-4. Effect of expungement of records -- Access to expunged records -- Wrongful

disclosure.

     (a) Any person having his or her record expunged shall be released from all penalties and

disabilities resulting from the crime of which he or she had been convicted, except, upon conviction

of any subsequent crime, the expunged conviction may be considered as a prior conviction in

determining the sentence to be imposed.

     (b) In any application for employment, license, or other civil right or privilege, or any

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appearance as a witness, a person whose conviction of a crime has been expunged pursuant to this

chapter may state that he or she has never been convicted of the crime; provided, that if the person

is an applicant for a law enforcement agency position, for admission to the bar of any court, an

applicant for a teaching certificate, under chapter 11 of title 16, a coaching certificate under § 16-

11.1-1, or the operator or employee of an early childhood education facility pursuant to chapter

48.1 of title 16, the person shall disclose the fact of a conviction.

     (c) Whenever the records of any conviction and/or probation of an individual for the

commission of a crime have been expunged under the provisions of this chapter, any custodian of

the records of conviction relating to that crime shall not disclose the existence of the records upon

inquiry from any source unless the inquiry is that of the individual whose record was expunged,

that of a sentencing court following the conviction of the individual for the commission of a crime,

or that of a bar admission, character and fitness, or disciplinary committee, board, or agency, or

court which is considering a bar admission, character and fitness, or disciplinary matter, or that of

the commissioner of elementary and secondary education, or that of any law enforcement agency

when the nature and character of the offense with which an individual is to be charged would be

affected by virtue of the person having been previously convicted of the same offense.

     (d) The custodian of any records which have been expunged pursuant to the provisions of

this chapter shall only release or allow access to those records for the purposes specified in

subsections (b) or (c) of this section or by order of a court. Any agency and/or person who willfully

refuses to carry out the expungement of the records of conviction pursuant to § 12-1.3-2, or this

section or willfully releases or willfully allows access to records of conviction, knowing them to

have been expunged, shall be civilly liable.

     SECTION 3. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO CRIMINAL PROCEDURE -- IDENTIFICATION AND APPREHENSION OF

CRIMINALS

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     This act would make any acquittal or dismissal of any offense eligible for sealing under

chapter 1 of title 12, would lower the time limitations for certain expungements and amend the

eligibility requirements for certain expungements.

     This act would take effect upon passage.

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