N.H. Rev. Stat. § 651:5

Current through Chapter 381 of the 2024 Legislative Session

Section 651:5 - Annulment of Criminal Records

I. Except as provided in paragraphs V-VIII, the record of arrest, conviction and sentence of any person may be annulled by the sentencing court at any time in response to a petition for annulment which is timely brought in accordance with the provisions of this section if in the opinion of the court, the annulment will assist in the petitioner's rehabilitation and will be consistent with the public welfare. The court may grant or deny an annulment without a hearing, unless a hearing is requested by the petitioner.

II. For an offense disposed of before January 1, 2019 and any offense not subject to paragraph II-a, any person whose arrest has resulted in a finding of not guilty, or whose case was dismissed or not prosecuted, may petition for annulment of the arrest record or court record, or both, at any time in accordance with the provisions of this section. Any person who was convicted of a criminal offense whose conviction was subsequently vacated by a court may petition for annulment of the arrest record or court record, or both, in accordance with the provisions of this section. Nothing in this paragraph shall limit the provisions of subparagraph XI(b).

II-a.

(a) For an offense disposed of on or after January 1, 2019, any person whose arrest has resulted in a finding of not guilty on all charges that resulted from the arrest, or whose case was dismissed or not prosecuted, shall have the arrest record and court record annulled:

(1) Thirty days following the finding of dismissal if an appeal is not taken under RSA 606:10 or finding of not guilty; or

(2) Upon final determination of the appeal affirming the finding of dismissal if an appeal is taken under RSA 606:10.

(b) For an offense disposed of on or after January 1, 2019, any person who was convicted of a criminal offense whose conviction was subsequently vacated by a court shall have the arrest record and court record annulled. Nothing in this paragraph shall limit the provisions of subparagraph XI(b).

III. Except as provided in RSA 265-A:21 or in paragraphs V and VI, any person convicted of an offense may petition for annulment of the record of arrest, conviction, and sentence when the petitioner has completed all the terms and conditions of the sentence and has thereafter been convicted of no other crime, except a motor vehicle offense classified as a violation other than driving while intoxicated under RSA 265-A:2, I, RSA 265:82, or RSA 265:82-a for a period of time as follows:

(a)

(1) For a violation with a conviction date prior to January 1, 2019 or a violation with a conviction date on or after January 1, 2019 that was not the highest offense of conviction, one year, unless the underlying conviction was for an offense specified under RSA 259:39.

(2) For a violation with a conviction date on or after January 1, 2019 where the violation was the highest offense of conviction, unless the underlying conviction was for an offense specified under RSA 259:39, or another violation for which there is an enhanced penalty for a subsequent conviction, one year after the person has completed all the terms and conditions of the sentence. Upon completion of a petition by the person stating that the conviction is eligible for annulment, the court shall submit a notice of its determination to the person convicted of the offense and to the prosecutor. The prosecutor shall have 20 days from the date of receipt of the notice to object to the annulment on the ground that the offense is not eligible for annulment or that the person has not completed all the terms and conditions of the sentence. If the prosecutor fails to timely object or the court denies the prosecutor's objection, the court shall annul the conviction.

(b)

(1) For a class B misdemeanor with a conviction date prior to January 1, 2019 or a class B misdemeanor with a conviction date on or after January 1, 2019 that was not the highest offense of conviction, except as provided in subparagraphs (f) and (h), 2 years.

(2) For a class B misdemeanor with a conviction date on or after January 1, 2019 where the class B misdemeanor was the highest offense of conviction, except as provided in subparagraphs (f) and (h), 2 years after the person has completed all the terms and conditions of the sentence. Upon completion of a petition by the person stating that the class B misdemeanor is eligible for annulment, the court shall submit a notice of its determination to the person convicted of the offense and to the prosecutor. The prosecutor shall have 20 days from the date of receipt of the notice to object to the annulment on the ground that the offense is not eligible for annulment or that the person has not completed all the terms and conditions of the sentence. If the prosecutor fails to timely object or the court denies the prosecutor's objection, the court shall annul the conviction.

(c) For a class A misdemeanor except as provided in subparagraphs (f) and (i), 3 years.

(d) For a class B felony except as provided in subparagraphs (g) and (i), 5 years.

(e) For a class A felony, except as provided in subparagraph (i), 10 years.

(f) For sexual assault under RSA 632-A:4, 10 years.

(g) For felony indecent exposure or lewdness under RSA 645:1, II, 10 years.

(h) For any misdemeanor domestic violence offense under RSA 631:2-b, 10 years. In the event an individual is convicted of a subsequent misdemeanor or felony domestic violence offense under RSA 631:2-b, the earlier domestic violence conviction shall not eligible for an annulment until the most recent domestic violence conviction has become eligible for an annulment.

(i) For a class A misdemeanor or felony offense under RSA 318-B:26, II, 2 years.

IV. If a petition for annulment is denied, no further petition shall be brought more frequently than every 3 years thereafter.

V. No petition shall be brought and no annulment granted in the case of any violent crime, of felony obstruction of justice crimes, or of any offense for which the petitioner was sentenced to an extended term of imprisonment under RSA 651:6.

VI. If a person has been convicted of more than one offense, no petition for annulment shall be brought and no annulment granted:

(a) If annulment of any part of the record is barred under paragraph V; or

(b) Until the time requirements under paragraphs III and IV for all offenses of record have been met.

VI-a. A conviction for an offense committed under the laws of another state which would not be considered an offense under New Hampshire law, shall not count as a conviction for the purpose of obtaining an annulment under this section.

VII. If, prior to disposition by the court of a petition for annulment, the petitioner is charged with an offense conviction for which would bar such annulment under paragraph V or VI(a) or would extend the time requirements under paragraphs III, IV and VI(b), the petition shall not be acted upon until the charge is disposed.

VIII. Any petition for annulment which does not meet the requirements of paragraphs III-VI shall be dismissed without a hearing.

IX. When a petition for annulment is timely brought, the court shall require the department of corrections to report to the court concerning any state or federal convictions, arrests, or prosecutions of the petitioner and any other information which the court believes may aid in making a determination on the petition. The department shall charge the petitioner a fee of $100 to cover the cost of such investigation unless the petitioner demonstrates that he or she is indigent, or has been found not guilty, or the case has been dismissed or not prosecuted in accordance with paragraph II. The department of safety shall charge the successful petitioner a fee of $100 for researching and correcting the criminal history record accordingly, unless the petitioner demonstrates that he or she is indigent, or has been found not guilty, or the case has been dismissed or not prosecuted in accordance with paragraph II. The court shall provide a copy of the petition to the prosecutor of the underlying offense and permit them to be heard regarding the interest of justice in regard to the petition. The petitioner's request for a court filing fee waiver shall be submitted on a form supplied by the court.

X. Upon entry of an order of annulment:

(a) The person whose record is annulled shall be treated in all respects as if he or she had never been arrested, convicted or sentenced, except that, upon conviction of any crime committed after the order of annulment has been entered, the prior conviction may be considered by the court in determining the sentence to be imposed, and may be counted toward habitual offender status under RSA 259:39.

(b) The court shall issue the person a certificate stating that such person's behavior after the conviction has warranted the issuance of the order, and that its effect is to annul the arrest, conviction, and sentence, and shall notify the state police criminal records unit, the prosecuting agency, and the arresting agency.

(c) The court records relating to an annulled arrest, conviction, or sentence shall be sealed and available only to the person whose record was annulled, his or her attorney, a court for sentencing pursuant to subparagraph (a), law enforcement personnel for legitimate law enforcement purposes, or as otherwise provided in this section.

(d) Upon payment of a fee not to exceed $100 to the state police, and subject to the provisions of subparagraph XI(b), the state police criminal records unit shall remove the annulled criminal record and inform all appropriate state and federal agencies of the annulment, unless the petitioner demonstrates that he or she is indigent, or has been found not guilty, or the case has been dismissed or not prosecuted in accordance with paragraph II. The state police shall grant the fee waiver request where the petitioner demonstrates indigency by including with the fee waiver request an affidavit listing the petitioner's monthly net income and that of his or her spouse, and the assets of the petitioner and his or her spouse. The fee waiver request form used shall be substantially similar to the forms for waiver of fees and costs in the superior courts.

(e) The arresting agency and the prosecuting agency shall clearly identify in their respective files and in their respective electronic records that the arrest or conviction and sentence have been annulled.

(f) In any application for employment, license or other civil right or privilege, or in any appearance as a witness in any proceeding or hearing, a person may be questioned about a previous criminal record only in terms such as "Have you ever been arrested for or convicted of a crime that has not been annulled by a court?"

XI. Nothing in this section shall affect any right:

(a) Of the person whose record has been annulled to appeal from the conviction or sentence or to rely on it in bar of any subsequent proceedings for the same offense; or

(b) Of law enforcement officers to maintain arrest and conviction records and to communicate information regarding the annulled record of arrest or conviction to other law enforcement officers for legitimate investigative purposes or in defense of any civil suit arising out of the facts of the arrest, or to the police standards and training council solely for the purpose of assisting the council in determining the fitness of an individual to serve as a law enforcement officer, in any of which cases such information shall not be disclosed to any other person.

XII. [Repealed.]

XIII. As used in this section, "violent crime" means:

(a) Capital murder, first or second degree murder, manslaughter, or class A felony negligent homicide under RSA 630;

(b) First degree assault under RSA 631:1;

(c) Aggravated felonious sexual assault or felonious sexual assault under RSA 632-A;

(d) Kidnapping or criminal restraint under RSA 633;

(e) Class A felony arson under RSA 634:1;

(f) Robbery under RSA 636;

(g) Incest under RSA 639:2, III or endangering the welfare of a child by solicitation under RSA 639:3, III; or

(h) Any felonious offense involving child sexual abuse images under RSA 649-A.

XIV. As used in this section, "crime of obstruction of justice" means:

(a) Tampering with witnesses or informants under RSA 641:5 or falsifying evidence under RSA 641:6; or

(b) Any felonious offense of obstructing governmental operations under RSA 642.

XV. A petition for annulment of any record of arrest, conviction, and sentence authorized by this section may be brought in the supreme court with respect to any such record in the supreme court, provided that no record in the supreme court relating to an opinion published in the New Hampshire Reports may be annulled.

XVI. A journalist or reporter shall not be subject to civil or criminal penalties for publishing or broadcasting:

(a) That a person had a criminal record that has been annulled, including the content of that record.

(b) That a person has a criminal record, including the content of such record, without reporting that the record has been annulled, if the journalist or reporter does not have knowledge of the annulment.

XVII. No person or entity, whether public or private, shall be subject to civil or criminal penalties for not removing from public access or making corrections to a report or statement that a person has a criminal record, including the content of such record, if thereafter the criminal record was annulled. This provision shall apply to any report or statement, regardless of its format.

RSA 651:5

Amended by 2020 , 12: 1, eff. 9/14/2020.

Amended by 2018 , 366: 10, eff. 8/31/2018.

Amended by 2018 , 366: 9, eff. 8/31/2018.

Amended by 2018 , 366: 8, eff. 8/31/2018.

Amended by 2018 , 366: 7, eff. 8/31/2018.

Amended by 2018 , 366: 6, eff. 8/31/2018.

Amended by 2018 , 366: 5, eff. 8/31/2018.

Amended by 2018 , 366: 4, eff. 8/31/2018.

Amended by 2017 , 91: 8, eff. 8/6/2017.

Amended by 2016 , 89: 1, eff. 1/1/2017.

Amended by 2016 , 325: 2, eff. 8/20/2016.

Amended by 2015 , 135: 1, eff. 1/1/2016.

Amended by 2014 , 170: 1, eff. 1/1/2015.

Amended by 2013 , 123: 1, eff. 8/24/2013.

Amended by 2012 , 249: 2, eff. 1/1/2013.

Amended by 2012 , 249: 1, eff. 1/1/2013.

Amended by 2011 , 219: 3, eff. 6/28/2011.

Amended by 2011 , 219: 2, eff. 6/28/2011.

Amended by 2011 , 219: 1, eff. 6/28/2011.

1971, 518:1. 1985, 205:2. 1986, 49:1; 189:1. 1988, 238:6. 1991, 159:1. 1992, 269:11. 1994, 224:1. 1998, 325:2. 2002, 269 : 1 . 2006, 163 : 3 ; 260:34. 2008, 62 : 4 ; 104:1. 2009, 144 : 131 . 2011, 219 : 1 -3. 2012, 249 : 1 , 2. 2013, 123 : 1 . 2014, 170 : 1 . 2015, 135 : 1 , eff. Jan. 1, 2016. 2016, 89 : 1 , eff. Jan. 1, 2017; 325:2, eff. Aug. 20, 2016 at 12:01 a.m. 2017, 91 : 8 , eff. Aug. 6, 2017. 2018, 366 : 4 -10, eff. Aug. 31, 2018. 2020, 12 : 1 , eff. Sept. 14, 2020.