Many people leaving school and preparing to enter the work force worry about mistakes they made in their past – mistakes that left them with a criminal record – and they wonder how they can get an annulment of their criminal record in New Hampshire. They worry about how to explain, in a job application or an interview, a misdemeanor for shoplifting, for example, from when they were in high school, or a drug possession charge from when they were in college. The good news is that, in certain circumstances, you can annul (i.e., expunge, remove, erase) your criminal record. The process is straightforward, but there are pitfalls you need to look out for and avoid, and you should always consult an attorney for guidance and assistance.
How Can You Annul Your Criminal Record In New Hampshire?
To annul your criminal record in New Hampshire, you need to ask the court where you were convicted, or where the case was resolved or dismissed, to remove it. Again, consult an attorney first! After you have done that (and hopefully engaged an attorney), you must file a petition to annul your record and pay the filing fee. That is how you get the process started.
The petition is a basic form that the court provides you. You will have to prepare one petition for each arrest or conviction you want annulled. On each petition, you must list the case name, case number, your name and information, the arrest/conviction and statute number that corresponds to the crime for which you were arrested or convicted, and information concerning the sentence you received, if any. You should have an attorney assist you with preparing this petition.
What If You Don’t Know Or Remember The Offense For Which You Were Arrested Or Convicted?
Not a problem. You can obtain a copy of your criminal record from the Department of Safety (“DOS”). The fee is $25. You must fill out and submit this form. If you want to annul driving offenses, there is a separate form you may submit to the Division of Motor Vehicles. The attorney you consult will almost definitely request an updated copy of your criminal record and/or driving record before proceeding.
You should also maintain copies of all the documents associated with your criminal case, so that you can provide them to your attorney for preparing the petition. Court documents, for instance, may contain more specific information concerning a sentence you received for a conviction that may not be readily apparent on the record you obtain from the DOS.
How Much Does An Annulment Cost?
The court’s filing fee is $125. That fee can cover multiple petitions in one court if they are all filed at the same time. There is then a fee of $100 paid directly to the Department of Corrections (“DOC”) for it to perform its investigation. You will receive a letter from the DOC after your petition is filed advising you of this fee and the deadline to submit it. If the court approves your petition and issues a certificate of annulment, you will then have to pay the DOS a fee of $100 for each conviction for DOS to research and then correct your criminal record. (The $100 fee will cover multiple convictions from one court, but not multiple convictions from different courts.) If you cannot afford these fees, you may not be required to pay all of them: you would have to complete a financial affidavit to demonstrate you have limited income. The court may waive its fee, but it cannot waive the fees imposed by the DOC and DOS.
Of course, the fees above would not cover the cost of hiring an attorney to assist you. However, the cost of an attorney would not be much more than the total amount of fees above, and it would be well worth it to ensure you proceed correctly.
How Does the Annulment Process Work After A Petition to Annul is Filed?
Once you file your petition to annul, the clerk notifies the DOC and the prosecutor’s office. The prosecutor is given a deadline to object (or not). The DOC then conducts an investigation of your criminal history to determine, in instances where you are petitioning to annul a conviction, if you have satisfied the applicable waiting period required by your conviction (if any). (For a discussion concerning waiting periods, see below.) The DOC will then submit a report to the court. The court will not proceed until it receives the DOC’s report. Thus, once you receive the DOC’s letter, make sure you return it with a check for its $100 fee as soon as possible. If the DOC sends you a questionnaire, make sure you complete that as well and send it back promptly.
Once the court receives the DOC’s report and the prosecutor’s response, it will determine whether a hearing is necessary. A hearing is not always required. There is a likelihood of a hearing if the prosecutor objects, or the DOC believes you have not satisfied the applicable waiting period for a conviction, or if the judge wants to know additional information about you, or from the prosecutor, or the DOC. The judge has the discretion to annul your record. He or she will base his or her decision on whether the annulment of your criminal record will assist in your rehabilitation. You should have an attorney represent you at a hearing if one is required.
After a hearing, or if no hearing is required, the court will issue a written decision and mail it to you.
How Long Does the Annulment Process Take?
The process can take approximately 4-6 months from when you file the petition to annul, and even longer if the court schedules a hearing. As noted above, however, a hearing is not always scheduled.
Are You Eligible to Annul Your Criminal Record?
This is a critical question, and the main reason why you should consult an attorney. An attorney will help determine whether you are eligible to annul your criminal record. Whether or not you are eligible depends on several factors: the waiting periods set by New Hampshire law, the type of conviction you are trying to annul, and whether you have multiple convictions.
To annul your criminal record, you must satisfy the waiting periods set forth in the applicable New Hampshire statutes. The waiting periods are different for different crimes, and they depend on the seriousness of the offense. Generally speaking, they are as follows:
Arrest, But No Conviction
You are always eligible to annul a record when there is no conviction, and the case has been closed.
-An arrest with a not guilty finding: You may petition the court as soon as the case is closed.
-An arrest that was dismissed or not prosecuted: You may petition the court as soon as the case is closed.
Most convictions can be annulled. However, for those that can be annulled, you must keep in mind that you have to complete all the requirements of the original sentence in order to be eligible to annul your record. This includes waiting for the term of any “suspended” sentence to expire. Therefore, if you received a sentence of two years in prison, but that term was “suspended,” and you did not go to prison, you still have to wait for that two-year term to expire. Some convictions, however, cannot be annulled. For those that can, the waiting periods are as follows:
-Violations: You may petition the court one (1) year from the date your sentence is completed.
-Class B misdemeanors: You may petition the court two (2) years from the date your sentence is completed.
-Class A misdemeanors: You may petition the court three (3) years from the date your sentence is completed.
-Misdemeanor related to domestic violence: You may petition the court three (3) years from the date your sentence is completed.
-Class B felonies: You may petition the court five (5) years from the date your sentence is completed.
-Class A felonies: You may petition the court 10 years from the date your sentence is completed.
There are several driving offenses that are covered by the Habitual Offender law, which imposes a waiting period of at least seven (7) years after your conviction date, in addition to the waiting periods above. Those offenses are as follows: False statements, RSA 261:73; Forged Certificate of Title, RSA 262:1,1; Concealing Identity of Vehicle, RSA 262:8; Taking Without Owner’s Consent, RSA 262:12; Possession of Master Keys, RSA 262:13; False Name in Application for Driver’s License, RSA 263:12; Driving After Revocation or Suspension, RSA 263:64; Conduct After an Accident, RSA 264:25; Disobeying a Police Officer, RSA 265:4; Reckless Driving, RSA 265:79; Racing on Highways, Overtaking and Passing School Bus, RSA 265:75; Driving as a Habitual Offender, RSA 262:23; Possession of Drugs in a Motor Vehicle, RSA 265-A:43; Negligent Driving, RSA 265:79-b; Improper Passing, RSA 265:22; Speeding, RSA 265:60; Driving Without Valid License, RSA 263:1; and Driving Without Proof of Financial Responsibility, RSA 263:63.
Accordingly, once you satisfy the seven-year waiting period for a driving offense listed above, you must also satisfy the waiting period that applies to its original classification, as identified above (i.e., one year for a violation, two years for a Class B misdemeanor, three years for a Class A misdemeanor, etc.).
Some driving offenses have an additional 10-year waiting period. Any conviction for driving or attempting to drive while under the influence of alcohol, a controlled drug, prescription drug, or other chemical substance that impairs one’s ability to drive, you must wait 10 years after the date of conviction to request an annulment. Then, in addition to that 10-year waiting period, you must satisfy the waiting period that applies to its original classification, as identified above (i.e., one year for a violation, two years for a Class B misdemeanor, three years for a Class A misdemeanor, etc.).
What Happens if You Petition the Court for an Annulment But Are Not Eligible?
If you petition the court for an annulment, but you have not completed the mandatory waiting period(s) and, thus, are not eligible, the court will likely reject your petition, and – under the statute – you may have to wait an additional three years before being able to petition the court again for an annulment of that same conviction. This is why consulting an attorney is so important: make sure you are certain that you are eligible before you file a petition to annul.
What Happens If You Make a Mistake on Your Petition to Annul?
If you make a mistake on your petition to annul, the court may correct it. (I have personally seen this happen.) However, the court is permitted to reject the petition and, like above, require you to wait an additional three years before being able to petition the court again for an annulment of that same conviction. Again: engage an experienced attorney to help you prepare your petition and ensure it is correct.
The process for getting an annulment of your criminal record in New Hampshire is straightforward, but it can be rife with pitfalls and surprises for the unwary. It is a beneficial option for rehabilitating your reputation and improving your employment prospects and your career. However, you should consult an attorney to help guide you through it.