2015 -- S 0432

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LC000490

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2015

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A N   A C T

RELATING TO CRIMINAL PROCEDURE - EXPUNGEMENT OF CRIMINAL RECORDS

     Introduced By: Senators Archambault, Lombardi, Metts, McCaffrey, and Jabour

     Date Introduced: February 25, 2015

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 12-1.3-1, 12-1.3-2 and 12-1.3-3 of the General Laws in Chapter

12-1.3 entitled "Expungement of Criminal Records" are hereby amended to read as follows:

     12-1.3-1. Definitions. -- For purposes of this chapter only, the following definitions

apply:

      (1) "Crime of violence" includes murder, manslaughter, first degree arson, kidnapping

with intent to extort, robbery, larceny from the person, first degree sexual assault, second degree

sexual assault, first and second degree child molestation, assault with intent to murder, assault

with intent to rob, assault with intent to commit first degree sexual assault, burglary, and entering

a dwelling house with intent to commit murder, robbery, sexual assault, or larceny.

      (2) "Expungement of records and records of conviction" means the sealing and retention

of all records of a conviction and/or probation and the removal from active files of all records and

information relating to conviction and/or probation.

      (3) "First offender" means a person who has been convicted of a felony offense or a

misdemeanor offense, excluding any violation of § 31-11-18, and who has not been previously

convicted of or placed on probation for a felony or a misdemeanor and against whom there is no

criminal proceeding pending in any court.

      (4) "Law enforcement agency" means a state police organization of this or any other

state, the enforcement division of the department of environmental management, the office of the

state fire marshal, the capitol police, a law enforcement agency of the federal government, and

any agency, department, or bureau of the United States government which has as one of its

functions the gathering of intelligence data.

      (5) "Records" and "records of conviction and/or probation" include all court records, all

records in the possession of any state or local police department, the bureau of criminal

identification and the probation department, including, but not limited to, any fingerprints,

photographs, physical measurements, or other records of identification. The terms "records" and

"records of conviction, and/or probation" do not include the records and files of the department of

attorney general which are not kept by the bureau of criminal identification in the ordinary course

of the bureau's business.

     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 conviction

expunged.

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

expungement of records relating to a misdemeanor conviction after five (5) years from the date of

the completion of his or her sentence.

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

expungement of records relating to a felony conviction after ten (10) years from the date of the

completion of his or her sentence.

     (d) Any person who is not a first time offender or previously convicted of a "crime of

violence," as defined in § 12-1.3-1 may petition the court for the expungement of all records of

misdemeanor and felony convictions by filing a motion in the court with the proper jurisdiction

consistent with the requirements of § 12-1.3-3 and requesting an evidentiary hearing before a

magistrate or judge.

     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 which 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 order the expungement of the records of conviction of the person

filing the motion if it finds:

      (1) That in the five (5) years preceding the filing of the motion, if the conviction was for

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a misdemeanor, or in the ten (10) 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, and he or she has exhibited good

moral character;

      (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.

     (3) In the case of a petitioner who is not a first time offender under § 12-1.3-1, the court

shall make specific findings on the record as to the reasons why the motion should be granted or

denied. The court shall make specific findings which shall include, but are not limited to, the

number of prior convictions, the length of time since the prior convictions, the offenses for which

the petitioner was convicted, along with all other considerations consistent with this section. If the

court, after the presentation of the evidence, finds that in the interest of justice the petitioner

should be permitted the expungement, the motion shall be granted. Notwithstanding the above, no

convictions for capital offenses may be considered for expungement.

      (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 deleted. 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

records. Compliance with the order shall be according to the terms specified by the court.

     SECTION 2. 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 - EXPUNGEMENT OF CRIMINAL RECORDS

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     This act would exclude violations of operating a motor vehicle with a suspended or

expired license from the definition of convictions within the expungement statute. This act would

also allow a non-first time offender, as defined by the definitions listed in this section, to apply

for an evidentiary hearing in seeking expungement by the court. This act would also exclude

individuals convicted of "crimes of violence".

     This act would take effect upon passage.

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