Allison C. Abilheira, Esq. Abilheira Law, LLC
Prior to the extensive changes enacted by our legislature this year, criminal defendants were left with few options when it came to addressing their criminal record. Previously, individuals were eligible to seal a criminal case if that case resulted in an acquittal or exoneration or expunge2 a criminal conviction if they were a "first time offender."3 Over time, these restrictive statutes prevented deserving individuals from removing criminal cases from their records, which ultimately sparked the need for change.
During the 2017 legislative session, legislators in the Rhode Island General Assembly presented several amendments to the expungement laws4 that were signed into law by the Governor. The amendments, encompassed in House Bill 5205 Substitute A and Senate Bill 0426 Substitute A, significantly expanded eligibility for criminal record expungement.
This comprehensive guide will attempt to explain the options available to attorneys seeking to clear their client's criminal record.
The Differences Between a Motion to Seal and Motion to Expunge
Fundamentally, a motion to seal and a motion to expunge accomplish the same goal: "the destruction or elimination from public view of certain records of criminal arrests and/or convictions."5 However, there is a substantial difference between a motion to seal and a motion to expunge. A motion to seal is appropriate when a case results in an acquittal or exoneration, while a motion to expunge is proper when a case results in a criminal conviction or sentence.
Motion to Seal
An individual is eligible for a motion to seal under R.I. Gen. Laws § 12-1-12.1 if their case resulted in an acquittal or an exoneration, such as a dismissal, a not guilty finding after trial, no true bill after grand jury proceedings, or no information after the felony screening process.
That being said, even if a defendant was acquitted or otherwise exonerated of a crime, having a felony conviction on their record will render them ineligible for a motion to seal. For the purposes of the sealing statute, a felony conviction includes a jail sentence, a suspended sentence or a fine. Please note that under State v. Poulin,6 argued by Attorney Abilheira before the Rhode Island Supreme Court, a nolo contendere plea to a felony charge followed by a period of probation is not a felony conviction for sealing purposes. Additionally, a plea of nolo contendere to a felony charge followed by a deferred sentence is not a felony conviction for sealing purposes.7
When reviewing a client's criminal record, attorneys should pay particular attention to cases where a defendant was found not guilty after trial, as they will be eligible for a motion to seal despite having a felony conviction on their record.8
Unlike motions to expunge, a motion to seal can be filed immediately after the case is disposed of without any requisite waiting period.
Motion to Expunge - First Time Offenders
Depending on the criminal sentence imposed at the conclusion of a defendant's case and their prior criminal history, an individual may fall into one of four...