Rhode Island Public Defender Outreach Project: Warrant Cancellation & Expungement

Transcription

1 Rhode Island Public Defender Outreach Project: Warrant Cancellation & Expungement The following guide to warrant cancellation and expungement is written by the Rhode Island Public Defender and is based on the best knowledge of our office s attorneys and staff regarding these proceedings. Because the ultimate decision regarding warrant cancellation and expungement is made by a judge or jury, this document is not a guarantee of what will happen but rather a prediction of what is most likely to happen based on past practice. This guide is thus intended to inform defendants about the general rules governing warrant cancellation and expungement in order for them to make informed decisions. What is a bench warrant? A bench warrant is an order for the immediate arrest of a person for failure to appear in court on a scheduled day and time. The bench warrant is issued by a Federal or State court or judge and is enforced by the police. If you discover that a bench warrant has been issued, it is very important to appear before the issuing court immediately, preferably with an attorney, in order to avoid arrest. The general rule of thumb here is that if you walk yourself into court, you will usually walk yourself out. * However, if you wait to be arrested on a bench warrant, you may be subject to incarceration without bail and you will be charged a fee of $ for the warrant. It is always better to come forward yourself than to wait to be arrested: in addition to decreasing the chances of being held, you will not be charged the $ fee * Coming to the court on your own is very different from going to the police and it is generally better to go to the court, not to the local police, when you have a bench warrant. If you cannot afford an attorney, the Rhode Island Public Defender can assist you in order to ensure that your rights are protected in this process. If I think I have an outstanding bench warrant, what can I do? The first step is determining whether or not you have a warrant and what you have it for. You can call the Rhode Island Public Defender (main office number, ), or call the court where you think the warrant was issued, in order to find out this information. If you do indeed have a warrant, the second step in removing a warrant is going to the Clerk s Office in the courthouse that issued your warrant. For 6 th Division Court, the Clerk s Office is on the second floor of Garrahy Judicial Complex, which is above the coffee shop. For Rhode Island Superior Court, the Clerk s Office is on the fifth floor of Licht Judicial Complex. You should tell the clerk that you have a bench warrant and he or she will find your file and make sure it goes to the appropriate courtroom. You can do this part without a lawyer present: you will not be arrested

2 for disclosing that there is a warrant for you. It is good to get to the Clerk s Office early in the day in order for the clerks to have time to pull your file and bring it to the appropriate courtroom. After going to the clerk s office, go to the Public Defender s Office in the courthouse. This is on the first floor of the Garrahy Judicial Complex and on the fourth floor of Licht Judicial Complex. At the front desk, tell the secretary that you have a warrant, what it is for, and that you are looking to have it removed. If you already have been assigned a Public Defender, the secretary will contact your lawyer for you and have the legal secretary fax the file to the office. Once the file has arrived, an intake person or secretary will walk you to the appropriate courtroom and explain to the Public Defender lawyer assigned to that courtroom that you are here for a warrant removal. The Pubic Defender lawyer assigned to that courtroom will advocate for you from this point forward. If you have not yet been assigned a Public Defender lawyer but believe you are eligible, the Public Defender s Office will interview you in order to determine your eligibility. You still will be able to have your warrant removed on the day that you come in, and will still be walked to the appropriate courtroom, but you will also be assigned a Public Defender lawyer in order to prepare for your next court date. Warrant cancellation is different from the handling of the actual case. Even after removing your warrant, you still will have to address the original charges in court. How do I see my criminal record? The only official way to access a record is from the Attorney General s BCI Office. This office is located at 150 South Main Street and it will cost $5.00 in check or money order. Unofficial criminal records can also be seen on the RI Judiciary s Website: courts.ri.gov. What is expungement? Expungement is a legal procedure that allows eligible individuals to have any and all records relating to their criminal charges removed, both from public records and those of law enforcement agencies. What types of criminal charges are eligible for expungement? The law provides that any criminal charge, with the exception of a crime of violence, is eligible for expungement. Anyone convicted of a crime of violence is ineligible for expungement. The law defines a crime of violence as follows: 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

3 larceny. What is a conviction? A conviction is a sentence by a judge or jury of a period of confinement (incarceration at the ACI or home confinement), suspended sentence, or fine. Other sentences, such as straight probation, are not technically a conviction. This does not affect the determination of first offender but is an important definition to know. Who is eligible to have their criminal record expunged? Anyone who is a first offender is eligible to have their criminal record expunged. The law defines a first offender as follows: a person 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. Anyone convicted or placed on probation on more than one occasion is ineligible for expungement.* * There is one exception: If you have more than one conviction, but have a charge on your record that was dismissed that you would like to have removed from your record, you will be able apply to have that dismissed case expunged, even though your other charges on your record will not be changed. This, however, is only true if you do not have a felony conviction. In order to file to have this record expunged, please contact the Rhode Island Public Defender (see below for contact information). Will I have a record even if my case is dismissed? A dismissal (48A) is not an expungement. It is a very common misconception that dismissed cases do not show up on your record. This is not true: even if your case was dismissed, you still need to file a motion to have your record expunged if you want it removed from your record. Unlike other expungement procedures, which take a minimum of 5 years for a misdemeanor and 10 years for a felony, expunging a dismissed case is much faster. In many cases, you can file to have your record expunged on the same day that your case is dismissed. You should discuss this with your lawyer. If you do not do this, you will have to go through the expungement process. How long do I have to wait to have my criminal record expunged? For misdemeanors - (5) years after the successful completion (no intervening convictions, probation, or pending cases) of your sentence and/or probation. For felonies - (10) years after the successful completion (no intervening convictions, probation, or pending cases) of your sentence and/or probation

4 For dismissals you should file your motion for expungement immediately, unless advised otherwise. For filings you will have to wait one (1) full year to file a motion, unless it is a domestic violence filing, in which case you will have to wait 3 years. In theory, filings should come off automatically and you should not have to file a motion but often this does not happen in practice and you will need to file a motion to expunge yourself. For deferred sentences if you plead guilty or nolo contendere and received a deferred sentence, you must wait 5 years without any further charges and you will be eligible for expungement. For diversion program and drug court programs upon successful completions, the related charges should be removed from your record. Who determines if I am eligible to have my criminal record expunged? Your eligibility must be determined by a judge of the court where the case was originally heard. As mentioned previously in order to be eligible to have your criminal record expunged you must be a first offender and not have been convicted of a crime of violence. The law also requires that in order to have your criminal record expunged, the court must find that you are deserving of it. That is, you must be able to demonstrate to the court s satisfaction that you are of good moral character; have been rehabilitated and are deserving ; the expungement of your criminal record is consistent with the public interest, proof of which can include but is not limited to the following: o Regular employment and financial and other support of family o Successful completion of substance abuse and/or mental health counseling. o Community or other public service o Professional certification or licensing in field of employment o Otherwise eligible for induction into the armed forces of the United States How do I go about having my criminal record expunged? By filing a motion to expunge with the court. Some but not all courts have blank motions to expunge that you can fill out and file with the court yourself. The court s Clerk s Office may be available to assist you with completing the necessary paperwork including scheduling the motion for a hearing and giving you the date that it will be heard by the court. If you are filing a motion to expunge a conviction (not a dismissal or a filing), you will have to pay $ to the Clerk s Office if the expungement is granted (ucless you are expunging a dismissal or a filing, which does not cost any money). However, if you believe you are eligible for the Public Defender, you will likely be able to have this cost waived. You should contact the Public Defender s office about this issue. In addition, although in some but not all expungements the assistance of a lawyer may not be necessary, you are entitled to be represented by counsel. If you cannot afford private counsel the Rhode Island Public Defender may be also able to assist you.

5 After filing the motion to expunge, you are required to give notice of the date that it will be heard by the court to the Department of Attorney General and the police department that originally brought the charge. If you are filing a motion to expunge an old charge, it will have to be retrieved from the Records Center, which generally takes up to a month. If you want to speed this process up, you can go to the record center yourself to get the necessary documents. The Records Center is located at 5 Hill Street, Pawtucket, RI , Phone: (401) On the day that your motion to expunge is heard by the court you should be prepared to provide the following information about yourself to the judge hearing the motion: o Have not been convicted or received probation for a crime of violence o Are a first offender o Possess good moral character o Have been successfully rehabilitated and o The expungement of your criminal record is consistent with the public interest If your motion to expunge is granted, the court will provide you with copies of an order requiring that any and all records relating to the expunged case be deleted from the public record. A copy of this expungement order must be mailed to the Department of Attorney General and any other law enforcement agency known to have copies of these records in order to compel them to actually erase the record from their files. The Attorney General s office can take up to three months to amend your record. It is very important that you keep your own copy of the order, particularly if you need to prove your expungement before the Attorney General s office changes your record. If you are working with our office, we will mail these documents to their respective places for you. However, you should discuss this with your attorney to make sure the paperwork goes through. What are the practical effects of having my criminal record expunged? With certain very limited exceptions, 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. Again, with certain very limited exceptions, in any application for employment, license, or other civil right or privilege, or any 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. When applying for employment opportunities, are there any circumstances in which I would be legally required to disclose information regarding my expunged criminal record? According to RIGL (b), any person who 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 12, a coaching certificate under , or the operator or employee of an early childhood educational facility pursuant to chapter 48 1 of title 16," is required to disclose the fact of a conviction.

6 If you are seeking the services of the Office of the Public Defender, call or come to our offices, listed below. You will need to come in to the office and go through our intake process in order to determine your eligibility for a Public Defender. Intake hours are generally from 9-1 and 2-4. Main Office 160 Pine Street Providence, Rhode Island Main Phone Number (Voice/TDD) Felony Division Misdemeanor Division Appellate Division Administration Community Outreach information@ripd.org J. Joseph Garrahy Complex One Dorrance Plaza, 1 st Floor Providence, Rhode Island (District Courts for Providence/Bristol and Providence Family Court) Main Phone Number Family Court Division Providence County Courthouse Licht Judicial Complex 250 Benefit Street, 4th Floor Providence, Rhode Island (Providence Superior Court) Phone Number Kent County Courthouse Leighton Judicial Complex 222 Quaker Lane, 1 st Floor Warwick, Rhode Island (3rd Division District, Kent Superior and Family Court) Phone Number Washington County Courthouse McGrath Judicial Complex 4800 Tower Hill Road, Room 244 Wakefield, RI (4th Division District and Washington Superior and Family Court) Phone Number Newport County Courthouse Murray Judicial Complex 45 Washington Square Newport, Rhode Island (2nd Division District, Newport Superior and Family Courts) Phone