2020 -- H 7929

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LC003943

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2020

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A N   A C T

RELATING TO CRIMINAL PROCEDURE -- IDENTIFICATION AND APPREHENSION OF

CRIMINALS

     

     Introduced By: Representatives Williams, and Millea

     Date Introduced: February 26, 2020

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

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

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

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

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exonerated.

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

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

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

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

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

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

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

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

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

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

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

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

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

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exceeding one hundred dollars ($100).

 

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

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

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court, and the period of such filing has expired.

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

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

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

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(3) years from the date of filing before the records associated with the charge can be expunged,

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sealed or otherwise destroyed.

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

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exonerated.

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

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

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

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

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cases of acquittal after trial.

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

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

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

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prior to the hearing.

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

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

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of the court records of the person in that case.

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

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granting the motion, place under seal the court records in the case in which the acquittal,

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dismissal, no true bill, no information or other exoneration has been entered.

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

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

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

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

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

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

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

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

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12 of title 8.

 

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

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

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     12-1.3-2. Motion for expungement.

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

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

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

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violence shall have his or her records and records of related to that conviction expunged; and

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provided, that all outstanding court-imposed or court-related fees, fines, costs, assessments,

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charges, and/or any other monetary obligations have been paid, unless such amounts are reduced

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or waived by order of the court.

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

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

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

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

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provided that convictions for offenses under chapter 29 of title 12, § 31-27-2 or § 31-27-2.1 are

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

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

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counted toward the number of relevant convictions under this subsection and further, provided,

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that any person with only one conviction under chapter 29 of title 12 or §§ 31-27-2 or 31-27-2.1

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shall be eligible to have their records expunged for those offenses five (5) years after the

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conviction occurs and any person with no more than two (2) convictions for those offenses shall

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be eligible to have those records expunged ten (10) years after those convictions occur if they

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have not otherwise been arrested or convicted for any other offense subsequent to the last

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conviction.

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

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

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of his or her sentence.

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

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

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

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

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

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

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provided, that convictions for felony offenses under chapter 29 of title 12, § 31-27-2 or § 31-27-

 

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2.1 are not eligible for and may not be expunged under this subsection.

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     (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

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

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

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

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the date of the completion of their last sentence. Further subject to subsection (b) of this section, a

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person may file a motion for the expungement of records relating to felony convictions after ten

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(10) years from the date of the completion of their last sentence.

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

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

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

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on the motion in the court in which the original conviction took place. The court shall expunge

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any records of conviction for any offense that has been decriminalized.

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

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

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

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

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person at least ten (10) days prior to that date.

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

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

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person filing the motion if it finds:

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

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

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motion, if the conviction was for a felony, the petitioner has not been convicted nor arrested for

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any felony or misdemeanor; there are no criminal proceedings pending against the person; that

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the person does not owe any outstanding court-imposed or court-related fees, fines, costs,

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assessments, or charges, unless such amounts are reduced or waived by order of the court, and he

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or she has exhibited good moral character;

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

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

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

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

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

 

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

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

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

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

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

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

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

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and may not be expunged under this subsection.

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

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

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

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

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relating to the conviction expunged and all index and other references to it removed from public

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inspection. A copy of the order of the court shall be sent to any law enforcement agency and other

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

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

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

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

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

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

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

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

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

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

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

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demonstrate that the prior criminal conviction would qualify as a decriminalized offense under

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current law. The demonstration may include, but is not limited to, an affidavit signed by the

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petitioner attesting to the fact that the prior conviction qualifies as a decriminalized offense under

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current Rhode Island law.

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

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Wrongful disclosure.

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

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

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

 

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conviction in determining the sentence to be imposed.

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     (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

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

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

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court, an applicant for a teaching certificate, under chapter 11 of title 16, a coaching certificate

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under § 16-11.1-1, or the operator or employee of an early childhood education facility pursuant

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

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

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

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

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

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

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

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agency, or court which is considering a bar admission, character and fitness, or disciplinary

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

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enforcement agency when the nature and character of the offense with which an individual is to

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be charged would be affected by virtue of the person having been previously convicted of the

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same offense.

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

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

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

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

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

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them to have been expunged, shall be civilly liable.

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     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

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

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eligibility requirements for certain expungements.

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     This act would take effect upon passage.

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