Establishes a procedure for annulment of arrests or convictions for possession of 3/4 of an ounce or less of marijuana where the offense occurred before September 16, 2017 (when possession of 3/4 of an ounce was decriminalized).
Criminal Records Annulment
The debate over whether New Hampshire should treat annulled records as sealed or unsealed has been a hot one in recent years.
Annulling or expunging a criminal record means that, in legal terms, an arrest or conviction is treated as though it never occurred. For example, the offense does not legally have to be revealed to potential employers, landlords and others inquiring whether a person has ever been convicted of a crime.
Annulment does not mean that records of a crime disappear from other public sources, such as news archives and the Internet.
In states where annulled records are sealed, like New Hampshire, no mention of the arrest or conviction will appear on a person’s criminal or police record. However, details of the offense may still be viewed by law enforcement, prosecutors, or court personnel under specific circumstances, such as sentencing hearings for later crimes. They can also be requested under the state's right-to-know law.
Other states keep annulled records public. The offense will still appear on a person’s record, but must be clearly marked as annulled or expunged.
How to annull a criminal record in NH
To get a criminal record annulled in New Hampshire, you must apply to the court where you were initially convicted, or where your case was dismissed or otherwise resolved.
A judge may grant the annulment if he or she determines it “will assist in the petitioners rehabilitation and will be consistent with the public welfare”—a definition that leaves plenty of wiggle room for individual discretion.
Requests for annulment are also forwarded to the Department of Corrections, which conducts an investigation generally involving a review of your criminal history. The DOC will then issue a written recommendation to the court regarding the request. Prosecutors may also opt to weigh in.
Several conditions must be met before an annulment will be considered. Foremost is the amount of time that needs to pass since the offense took place—and during which the applicant has to have remained conviction-free.
- Arrest without conviction: immediately following closure of case
- Violation level offenses: 1 year
- Class B misdemeanor offenses committed after January 1, 2019: 2 years
- Class B misdemeanor offenses committed before January 1, 2019, and Class A misdemeanor offenses: 3 years
- Class B Felonies: 5 years
- Felony drug offenses and motor vehicle offenses covered by the state habitual offender law: 7 years (see a full list)
- Class A Felonies or DWI offenses: 10 years
Additionally, you must have documentation showing that you have completed all the terms of your sentence. A full checklist of other requirements for the application can be seen here.
Each unique offense for which an individual was convicted is treated separately. For example: if you were involved in an incident which resulted in convictions for three different offenses, you must apply to annul each offense separately, even though they occurred on the same day.
Some crimes are not eligible for annulment:
- Violent crimes such as assault, murder, rape, arson, and robbery.
- Obstruction of justice such as tampering with witnesses or evidence.
If a petition to annul is turned down, you must wait three years before applying again.
Changes in January 2019
It's easier to have minor offenses annuled if they were committed after January 1, 2019. For violations and class B misdemeanors committed after that date, the court must grant your request for an annulment after the waiting period is done, so long as you've completed all the terms of your sentence. Prosecutors have 20 days from when you file your petition for an annulment to object and show that some part of your sentence wasn't completed. If they fail to make the objection within that 20 day window, or the court rejects it, the annulment goes through.
What happens after a criminal record annulment
Originally in New Hampshire, documents related to an annulled offense were sealed, effectively ‘erasing’ them from the public record. This applied to court records as well as police documentation. Gag orders prevented court officials and others from speaking about annulled records, and news organizations could face civil penalties for mentioning annulled crimes.
In 2011, the Legislature unsealed annulled records with HB 82. Instead of disappearing from an individual’s record, annulled arrests or convictions would still appear – just clearly labeled as “annulled”. The law also removed the potential for civil action against reporters who wrote about annulled offenses.
This move was essentially reversed by HB 450, passed in 2013. That law once again sealed records of annulled offenses, removing them from a person’s criminal record and limiting access to law enforcement personnel. It did not, however, reinstate the penalties for reporters.
However, in 2016, the New Hampshire Supreme Court ruled that annulled criminal records weren't exempt from the state's right-to-know legislation. That means any member of the public can now file a request for access to an annulled criminal record.
PROS & CONS
"Annulled criminal records should stay sealed to the public."
- Annulment loses its purpose if the offense remains part of a person’s criminal record, which could mean that a reformed individual is still discriminated against on the basis of an annulled offense.
- Those eligible to get a record annulled have already paid their debt to society and deserve to be able to move forward with their lives.
- Keeping annulled records public will make it more difficult for some individuals to get jobs or an education, placing an additional and unnecessary burden on society and increasing the risk of reoffending.
- Those who were arrested and found not guilty or whose cases were dismissed particularly deserve to be free from future discrimination. Sealing annulled records ensures that incidents for which a person has been cleared are not part of that individual’s criminal record.
"Annulled criminal records should be available to the public."
- The annulment process shouldn’t mean that criminals can ‘erase’ their former crimes.
- Those whose crimes have been annulled can still legally tell potential employers they have never been charged or convicted of a crime.
- Employers in sensitive industries that require background checks as a condition of employment should be able to see even annulled offenses in the interests of public safety.
- Sealing records is ineffective anyway in an era where online news and social media mean past criminal activity is often viewable simply by entering terms into a search engine.
Requires a court to consider the financial resources of a person when setting cash bail, and forbids the court from setting bail in an amount a low income person cannot pay. Under this bill, a court could only require a person to stay in jail before trial if the court finds - by a preponderance of the evidence - that the person will likely not appear in court or will endanger the community. This bill also explicitly states that homelessness does not constitute evidence that a person will not appear in court. This bill also makes some changes to the criminal records annulment process, generally requiring the court to annul violation-level offenses after one year and class B misdemeanors after two years. Lastly, this bill establishes a commission to study pretrial detention.
Allows a person to more quickly petition a court for a criminal annulment after the annulment was denied.
Prohibits the use of handcuffs on a minor in a court facility occupied by members of the public; prohibits a prosecutor, law enforcement officer, or other public employee from advising a juvenile or the juvenile's parent to waive the right to counsel; and codifies the annulment procedure for a juvenile criminal offense that occurred between May 14, 2014 and July 1, 2015 and while the person was 17 years of age.
If a petition to annul a criminal record is denied, this bill requires the court to state the reason for the denial and set a time period after which the petitioner can try again. At the time of this bill's submission, if a petition to annul a criminal record is denied, the petitioner must wait three years before trying again.
Allows for an annulment of arrest and court records without cost if the arrest resulted in a finding of not guilty, or if the case was dismissed or not prosecuted, or if a conviction was subsequently vacated. The bill also allows an individual to petition for annulment on an annual basis if denied, as opposed to the existing limitation of every three years.
Decreases the waiting period for petitioning for the annulment of a misdemeanor marijuana or hashish offense from 3 years to 2 years.
States that an offender may only remove his or her name from the public sex offender registry if the offender can prove that he or she poses no risk of reoffending or causing public harm.
Allows a person convicted of simple assault, misdemeanor reckless conduct, or misdemeanor criminal threatening, where the person has no other criminal convictions, to petition for annulment of his or her criminal record. The House amended the bill to instead allow annulment when a conviction is vacated.
Prohibits employers from inquiring into a job applicant's criminal record during the initial employment application process.
Reduces the waiting period for petitioning for annulment of a class B misdemeanor offense, and establishes a 3-year waiting period for annulment of any misdemeanor offense involving a family or household member.
Expands the option of criminal record annulment to include a first offense of simple assault, misdemeanor reckless conduct, or misdemeanor criminal threatening. This bill also allows a petition for criminal record annulment if a criminal conviction was vacated. Lastly, this bill removes simple assault against emergency personnel or law enforcement from the list of crimes with extended prison sentences.
Slightly increases disclosure of criminal records.
Establishes a committee to study information included in arrest records and access to information on the disposition of criminal cases.
Allows criminal record annulment for minor obstruction of justice crimes.
Automatically annuls criminal records for minor offenses after a few years.
Seals annulled criminal records from the public.
Requires records of all criminal offenses which have been annulled to be identified as annulled.
Makes criminal annulments public records, and removes civil penalties for disclosing details of an annulment.
Should annulled criminal records stay sealed to the public?
Rep. Renny Cushing proposed a bill for 2018 that would have made it easier to get criminal records related to possession of less than 3/4 of an ounce of marijuana annulled. The bill was tabled in the Senate, effectively killing it for this year. Cushing has proposed a similar bill for 2019, although details have not yet been made public.
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