Clearing the Record: How to seal criminal records and expunge criminal convictions in Rhode Island.

There are benefits to having a clean driving record, such as being eligible for discounts on the cost of motor vehicle insurance and being able to make an application for dismissal of certain driving infractions (such as a minor speeding offense) for having a good driving record, pursuant to Rhode Island General Laws § 31-41.1-7. More importantly, clearing one’s criminal record will make gaining employment easier. Successful motions to seal and motions to expunge will also give many people renewed peace of mind by eliminating from public view bad behavior that resulted in a misdemeanor - and in more limited circumstances, a felony conviction - that occurred years ago and that no longer accurately reflects a person’s present lifestyle. Thus, our Rhode Island legislature has given applicants who meet important criteria the ability to gain a fresh start on a clean slate. 

1.     Motor Vehicle Infractions:

The best way to start the process of eliminating driving infractions is to obtain a copy of a driving abstract (the record of a motorist’s driving offenses). One may obtain a driving abstract from the Rhode Island Department of Motor Vehicles: (https://www.ri.gov/DMV/mvr/).  Pursuant to Rhode Island General Laws § 31-41.1-10, traffic violations that are more than three years old shall be expunged by the clerk of the court, whether those offenses were adjudicated in the Rhode Island Traffic Tribunal, or whether they were adjudicated in one of Rhode Island’s twenty-three municipal courts. Judgments of guilt for Refusal to Submit to Chemical Test are ineligible to be removed from a Driving Abstract. 

2.     Misdemeanors:

Misdemeanor offenses may be eliminated from your record by applying to the court through a motion to expunge or a motion to seal. 

A.   Motion to Expunge 

A motion to expunge is the appropriate application to the court to eliminate your criminal record if you pleaded guilty, pleaded nolo contendere, or were found guilty after trial for a criminal offense. You should file your motion in the same court in which the conviction occurred. You are eligible to expunge misdemeanor criminal offenses if all of the following circumstances are met:

1.     an applicant has not been convicted (received a term of incarceration, a suspended sentence, probation, a deferred sentence, or a fine; or, if there was a guilty plea or guilty verdict) of a felony;

2.     an applicant is not currently facing criminal proceedings;

3.     the misdemeanor an applicant seeks to expunge is not for a conviction of Driving Under the Influence of Liquor or Drugs;

4.     five years have elapsed since the completion of the sentence;

5.     during the five years prior to the filing of the motion to expunge, the applicant has not been arrested for any felony or misdemeanor;

6.     an applicant has exhibited good moral character;

7.     an applicant has paid all monies owed to the court or to victims of the crime;

8.     an applicant has given the Rhode Island Department of the Attorney General and the police department that originally brought the charge against him or her at least ten days’ notice of the motion to expunge’s hearing date (which will be determined by the clerk of the court); 

9.     the court determines that the expungement of an applicant’s records is consistent with the public interest;

10.  an applicant has paid one hundred dollars to the clerk of the court after the court has granted the motion;

and,

11.  the applicant is a first-time offender; that is to say that it is an applicant’s only conviction[1]; 

or,

12.  an applicant has fewer than six misdemeanor convictions;

13.  an applicant has waited ten years since the completion of the most recent misdemeanor sentence;

14.  during the ten years prior to the filing of the motion to expunge, an applicant has not been arrested for any felony or misdemeanor.

B.    Motion to Seal: 

A motion to seal is the appropriate application to the court and to the arresting entity (e.g., City of Providence) to eliminate documents, photographs (e.g., a mug shot), reports, and related records produced as a result of an arrest for which the applicant was exonerated. This means that if the case was dismissed for any reason, was officially not prosecuted by the State of Rhode Island (through a finding of No True Bill or No Information), or if the applicant was acquitted by a judge or jury after trial, the applicant is eligible to have all records sealed, pursuant to Rhode Island General Laws § 12-1-12.1. 

An applicant is not, however, eligible to have records sealed, even in instances of exoneration, if the applicant has been convicted of a felony. The definition of a felony conviction for purposes of a motion to seal is, however, more forgiving than it is for a motion to expunge. A plea of nolo contendere to a felony, followed by a sentence of probation or a deferred sentence would make an applicant ineligible to expunge a misdemeanor. Contrarily, “a plea of nolo contendere followed by probation would not preclude a defendant from sealing his or her records.” State v. Poulin, 66 A.3d 419, 425 (R.I. 2013). An applicant would still be ineligible to have records sealed if he or she pleaded nolo contendere and received a term of incarceration, a suspended sentence, or a fine; or, if there was a guilty plea or guilty verdict for a felony. 

C.    Filing Dispositions:

With a one-year filing as a disposition for a criminal charge, an applicant is eligible to have the record of the crime for which the filing was received automatically expunged after one year has passed since the imposition of the filing disposition, so long as the applicant meets the following criteria: 

1.     if the filing disposition received was for a domestic violence misdemeanor, more than three years must have elapsed since the completion of the sentence;

2.     an applicant has not been convicted of a felony or a private complaint;

3.     an applicant has successfully completed the term of the filing sentence;

4.     an applicant has paid all monies owed to the court or to victims of that crime.

In Rhode Island State District Court, unlike a typical motion to expunge, with a filing disposition, at the successful completion of a one-year period of time since the imposition of the filing, a defendant is automatically eligible to have an order of destruction issued by the clerk of the court that imposed the filing sentence, without having to submit a motion or give notice to any governmental entity. 

3.     Felonies:

A Felony offense may be eliminated from an applicant’s record by applying to the court through a motion to expunge or a motion to seal. A motion to seal for a felony has the same requirements as a motion to seal for a misdemeanor. An applicant is eligible for expungement of a felony if all of the following criteria are met:

1.     it is the applicant’s only conviction;

2.     the conviction is not for a crime of violence, as defined in Rhode Island General Laws § 12-1-12.1;

3.     the felony for which expungement is sought is not for a conviction related to the statue governing Driving Under the Influence of Liquor or Drugs: Rhode Island General Laws § 31-27-2;

4.     ten years have elapsed since the completion of the sentence;

5.     during the ten years prior to the filing of the motion to expunge, the applicant has not been arrested for any felony or misdemeanor;

6.     the applicant is not currently facing criminal proceedings;

7.     the applicant has exhibited good moral character;

8.     the applicant has paid all monies owed to the court or to victims of the crime;

9.     the applicant has given the Rhode Island Attorney General and the police department that originally brought the charge at least ten days’ notice of the hearing;

10.  the court determines that the expungement of the applicant’s record is consistent with the public interest;

11.  the applicant has paid one hundred dollars to the clerk of the court (after the court has granted the motion).

Successful completion of a deferred sentence disposition does not entitle a person to automatically have that sentence expunged. Deferred sentence dispositions are treated the same as any felony conviction for purposes of expungements. State v. Briggs, 934 A.2d 811 (R.I. 2007).

4.     Decriminalized Offenses:

If an applicant has been convicted of an offense that has since become decriminalized, the procedure and criteria to bring a successful motion to expunge is the same as it is for misdemeanors, except for the elimination of the requirement that one hundred dollars be paid to the clerk of the court. 

5.     Prostitution and Solicitation to Commit a Sexual Act: 

Consonant with the Uniform Act on Prevention of and Remedies for Human Trafficking, under  Rhode Island General Laws 1956, § 11-67.1-17, if an applicant was convicted of a prostitution or solicitation offense, the procedure and criteria to bring a successful motion to expunge is the same as it is for misdemeanors, provided that in addition to the criteria listed for misdemeanors, the applicant must be able prove that his or her participation in the offense was a direct result of being a victim. Documentation from a governmental agency that the applicant was a victim at the time of the offense creates a victim-designation presumption. 

6.     Adult Drug Court:

In accordance with paragraph 15 of the Rhode Island Adult Drug Court Contract, all criminal charges adjudicated through the Rhode Island Superior Court’s Adult Drug Court are eligible to be dismissed and expunged upon successful completion of the Drug Court Program. 

Once an applicant’s motion to expunge or motion to seal has been granted by the court, the applicant should prepare an order directing the clerk of the court, the Department of the Attorney General’s Bureau of Criminal Identification, and the arresting police agency to destroy all documents, photographs, and records produced as a result of an arrest or violation. 

Once expunged, a person may truthfully state he or she has not been convicted of a crime. Pursuant to Rhode Island General Laws § 12-1.3-4(b): “In any application for employment, license, or other civil right or privilege, or any appearances 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.” This provision does not apply to applicants for law enforcement positions, lawyers, teachers, coaches, or day-care providers. 12 R.I. Gen. Laws Ann. § 12-1.3-4 (West). 

            John Larochelle, Esq. practices family law and criminal law from his Providence based law firm, Larochelle Law.