Rhode Island Considering Expungement Law

Rhode Island law makers are considering H5045, which will allow some people convicted of multiple misdemeanors to have their record expunged.

The lead sponsor — freshman Rep. Michael A. Rice, D-South Kingstown — said he was aware of “a couple of cases” in his district of people who had racked up misdemeanor records in their teens and early 20s, “paid their debt to society” and straightened out their lives, but could not shake off the stigma of their youthful misdeeds.

Existing law allows a court to expunge a non-violent misdemeanor 5 years after completing the sentence. The waiting period for non-violent felonies is currently 10 years.

H5045, co-sponsored by Rice, Lally and Rep. Kenneth Carter, D-North Kingstown, would allow courts to expunge multiple misdemeanors, regardless of the age of the offender or the nature of the offense, which could include drunken driving and domestic abuse.

More soon...

Firearm Rights Restoration in Montana

Question Presented

Can someone with a misdemeanor conviction in California that contains a lifetime prohibition on firearm ownership purchase a firearm in Montana?
(A) What are the applicable misdemeanor convictions in California that carry a lifetime prohibition on firearm ownership?
(B) Does Montana law allow for a party to purchase a firearm if the party has a lifelong prohibition on firearm ownership?

Short Answer
Yes, in order for a party who carries a lifetime prohibition for possessing a firearm in California to obtain the right to purchase a firearm in Montana, they must either:
• Not have been convicted of a crime in California, which is equivalent to a Montana offense that would subject the person to an additional sentence under section 46-18-221 (this includes any offence in which the use of a weapon is an element of the offense, and who, while engaged in the commission of the offense, knowingly displayed, brandished, or otherwise used a firearm, destructive device, or other dangerous weapon) or;
• They must apply to have their right to purchase firearms reinstated. If the party must apply for reinstatement the process would require the petitioner to file their application with the district court for the county in which the person resides for a permit to purchase and possess one or more firearms, explaining good cause for the possession of each firearm sought to be purchased and possessed.

Discussion

(A) Applicable Misdemeanor Convictions in California that Carry a Lifetime Prohibition on Firearm Ownership

Any person who has been convicted of a felony, a specified misdemeanor, or a specified firearms offense; who is addicted to narcotics; who is the subject of a protective order; or who has been found by a court or mental facility to have certain mental disabilities is prohibited by California law from possessing firearms. In some instances, convictions may carry a lifetime prohibition from possessing firearms.

The following California misdemeanor convictions result in a lifetime prohibition:
• Assault with a firearm (§§ 12021(a)(1), 12001.6(a).)
• Shooting at an inhabited or occupied dwelling house, building, vehicle, aircraft, housecar or camper (§§ 246, 12021(a)(1), 12001.6(b).)
• Brandishing a firearm in presence of a peace officer (§§ 417(c), 12001.6(d), 12021(a)(1).)
• Two or more convictions of 417(a)(2) (§ 12021(a)(2).)
• A “misdemeanor crime of domestic violence” (§§ 18 U.S.C. 921(a)(33)(A), 18 U.S.C. 922(g)(9).)

Parties convicted of the above California statutes will not be automatically eligible to purchase firearms in Montana. These parties must petition the appropriate Montana district court for the reinstatement of their right to purchase firearms and the requested reinstatement will be held at the discretion of the district court judge.

(B) Montana Law that Provides for the Possession of a Firearm for Convicted Individuals

Montana Code Annotated 45-8-313 Unlawful Possession of Firearm by Convicted Person, provides that, subject to certain limited exceptions, no person shall possess a firearm if he or she has been convicted of a felony for which he or she received an additional sentence under section 46-18-221 (which imposes an additional sentence for offenses committed with a dangerous weapon); or an offense of another state or federal law which is equivalent to a Montana offense which would subject the person to an additional sentence under section 46-18-221. This includes any offence in which the use of a weapon is an element of the offense, and who, while engaged in the commission of the offense, knowingly displayed, brandished, or otherwise used a firearm, destructive device, or other dangerous weapon.
Further, Montana Code Annotated, 45-8-314 Lifetime Firearms Supervision of Certain Convicted Persons, provides that if any person is convicted of an offense referred to in section 45-8-313 shall, as part of the sentence imposed, be sentenced to life supervision by the state for the purpose of restricting the person’s right to purchase and possess firearms. However, there are still avenues available for a person with a lifetime prohibition under Montana law to obtain possession of a firearm.
Montana Code Annotated 45-8-314(2) states that a person subject to a lifetime prohibition may apply to the district court for the county in which the person resides for a permit to purchase and possess one or more firearms. The applicant must show good cause for the possession of each firearm sought to be purchased and possessed. The grant or denial of the application does not prevent the person from submitting another application, except that if the application is denied, another may not be submitted for a period of 12 months. The application must contain the following information: (i) the person's full name and any past or present aliases; (ii) the person's date and place of birth; (iii) the person's address; (iv) the person's occupation; (v) the make and model of each firearm sought to be purchased and possessed; (vi) the date and place of each conviction of an offense referred to in 45-8-313, the name of the offense, the state and county in which the offense occurred, the sentence imposed, the place or places of incarceration, and the date of discharge from supervision for the last offense; (vii) the name and business address of the person's last probation or parole officer; and (viii) any other information considered necessary by the court. 

Considering the relevant Montana statutes, a person who is convicted of a misdemeanor in California that carries a lifetime prohibition maybe able to purchase firearms in Montana. This is based on the logic that if a person with a Montana conviction can apply to have their lifelong prohibition for the possession and purchase of firearms reinstated then the same opportunity will be available to a person with a California conviction. Thus, as long as the misdemeanor conviction in California is parallel to a conviction in Montana, the party with the California conviction should be able to petition for their reinstatement of firearms purchasing rights.

Conclusion
While a person convicted of a California misdemeanor that carries a lifelong prohibition on the purchase for firearms may not automatically qualify to purchase firearms in Montana, their eligibility to petition the right to purchase and possess a firearm seems unrestricted. In either situation, our client has options to restore his right to purchase and possess firearms in the state of Montana.

Possible Way To Get Around Misdemeanor DV Firearm Prohibition in CA

This topic will be explored more later, but it should be thrown out their for comment and contemplation now:

Since the federal probation on misdemeanor domestic violence cannot be lifted by the state unless (1) the state took away the firearm rights and (2) the state took an action to restore the rights, those convicted of a misdemeanor DV in CA are in worse shape when it coms to firearm rights than those convicted of felony DV in CA.

This anomaly is created by the fact that the federal prohibition on firearm ownership of those convicted of domestic violence only applies to misdemeanors— and apparently not misdemeanors that were pled down after sentencing. So someone convicted of felony DV can have their case reduced from a felony to misdemeanor (which eliminates CA's prohbition on felon's owning a firearm) and the federal law will not apply to the reduced misdemeanor conviction because it was reduced post-sentencing.

Here is where the possible way around the federal prohibition comes into play. A CA court and change the classification of a sentence pursuant to Penal Code section 17(b). Though it has probably never been attempted, but a person can ask a court— even many years after completing the sentence, to increase the sentence from a felony to misdemeanor, and the reduce it back from felony to misdemeanor.

So, the state would take away the person's firearm rights by making the case a felony, and then restore the rights by making it a misdemeanor. This action, as contrived as it may seem, very well may take the petitioner out of the purview of the federal firearm ban.

More soon...

Expungement of Infractions in California

Quick note.... California Penal Code 1203.4 does not allow expungement of offenses that are classified as infactions. The legislature probably deemed infractions too insignificant to justify the burden placed on the court. However, in the post-9-11 economy, background checks are utilized by more than 80 percent of employers. Our law firm receives several requests to expunge infractions a month from people who were denied employment because of an infraction.

To date, we have not challenged this law. However, reading some case law leads me to think that a challenge based on equal protection grounds might be successful.

In particularly, Newland v. Board of Governors of California Community Colleges, 19 Cal.3d 705, 566 P.2d 254

"We turn therefore to plaintiff's argument that the statutory requirement for a certificate of rehabilitation denies misdemeanants to equal protection of the law because it discriminates in favor of felons and against misdemeanants. The decisions clearly hold that a legislative classification, such as that involved here, violates the constitutional requirement of equal protection of the law unless it rationally relates to a legitimate state purpose. Neither our cases nor those of the United States Supreme Court have settled on a particular verbal formula to express this proposition. Some decisions require that the classification ‘bear some rational relationship to a conceivable legitimate state purpose’ ( D'Amico v. Board of Medical Examiners (1974), 11 Cal.3d 1, 16, Cal.Rptr. 786, 797, 520 P.2d 10, 21); others that the classification must rest upon ‘some ground of difference having a fair and substantial relation to the object of the legislation’ ( Reed v. Reed (1971), 404 U.S. 71, 75-76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225; Brown v. Merlo (1973), 8 Cal.3d 855, 861, 106 Cal.Rptr. 388, 506 P.2d 212)."

And..

"This statutory discrimination against misdemeanants can claim no rational relationship to the protective purpose of section 13220.16. This amendment stands as a legislative recognition that many of the persons barred for life under the unamended version of section 13220.16 were fit to teach. The Legislature could not possibly or sensibly have concluded that misdemeanants, as opposed to felons, constitute a class of particularly incorrigible offenders who are beyond hope of rehabilitation."

The logic in Newland may successfully be applied to a Constitutional challenge to Penal Code section 1203.4 denial of relief to those convicted of infractions.

Check back in the future as we expand this topic or post details on a challenge.

New York Second Chance Act - Part II

FIRST IMPRESSIONS
revised 9/12/09 8:00 AM PST

New York State Senator John L. Sampson has sponsored Senate Bill 1708, "The Second Chance for Ex-Offenders Act.” This bill would provide many benefits to all New Yorkers. It is also worth noting that this version of the bill is considerably different, and in most ways better than the previous version of the bill that was reviewed on this site in November of 2008.

Confusing or Contradictory Waiting Periods

This bill would allow those convicted of non-violent and non-sexual misdemeanors (note: previous bill only applied to drug offenses) to have their record sealed when they meet the statutory requirements below:

(a) convicted of a misdemeanor offense and at least five years have elapsed since his or her last conviction for any misdemeanor or felony offense; or
(b) placed on misdemeanor supervision for an offense; and (c) at least five years have elapsed since the completion of the term of supervision; and

I am struggling to ascertain what Senator Sampson was trying to achieve in 5(a)-(c). I do not understand the logic or see the policy goal. The time requirements seem to be poorly written and may present some inconsistencies, see examples below:

EXAMPLE 1
D was convicted of a misdemeanor in 2006 and receives a three-year probation sentence. Under paragraph A, D becomes eligible in 2011. Under paragraph B and C, D becomes eligible in 2014. Which year does a judge use to determine eligibility? Should there be “sooner of” language?

EXAMPLE 2
D was convicted for a misdemeanor in 2004 and receives a three-year probation sentence. Using the (b) and (c), D would be eligible for relief in 2012. However, if D is convicted of another misdemeanor later that year and receives one-year probation sentence, D would become eligible for relief in 2010. Does this create incentive go commit another less serious misdemeanor to become eligible under paragraph (a)?

A revision may be clearer or make more sense if it read:

A record identified for sealing under subdivision two of this section may be sealed when (1) at least 5 years have elapsed since his or her last conviction for a misdemeanor or felony and (2) five years have elapsed since completion of the term of supervision for the case seeking to be sealed, if supervision was given.

This revision would make sure that petitioners have been law abiding for 5 years beyond the period of community supervision on their most recent offense, but allow sealing of older offenses without waiting for eligibility for a more recent offense (if that was Senator Sampson's intent).

I would prefer a simple waiting period that read:

"the sooner of at least 5 years have elapsed since completion of the term of supervision or since the completion of supervision and 8 years since the completion of the offense. No record shall be sealed if the petitioner has been convicted of a misdemeanor or felony within the past 3 years."

The second clause of the first sentence would allow for a shorter waiting period for those who committed their offense a year or two prior to being convicted. As clearing a record is, in part, a reward for rehabilitation, it makes sense to keep the time of law abiding behavior required prior to record clearing somewhat equal between those who were committed an offense and then began rehabilitating despite not being convicted until a year later and those who committed an offense and began rehabilitating after promptly being convicted.

There is no requirement to pay fines or restitution prior to petitioning to have a record sealed. This makes the bill different and better than laws in other states that require payment of fines and restitution before clearing the criminal record. If NY does want to protect society’s interest in recovering the fines, it should require that the defendant pay fines or perform community service in lieu of fines. Either way, it should continue to allow those who cannot afford to pay fines to obtain relief. Courts and victims always have the option to pursue collections in a civil case.

Missing Standard

Section 5 (b) says “The court, after consideration of evidence submitted by the petitioner in support of the petition and any evidence submitted by the district attorney in support of objections it may have to granting such petition, shall rule on the petition.”

There is no standard given for the judge to use. Most states define a standard. California uses “in the interest of justice.” Minnesota gets more specific by specifying something like that the benefit to the petitioner and society must outweigh the potential harm to society and the cost of the court.

Without a defined standard, there will be inconsistent rulings and inefficient use of court time.

NOTES

Previous versions had restorative justice elements that required the petitioner to complete community service and finish high school or a high school equivalent if that had not already been completed by the defendant. This bill has no similar provision. While such a provision is not necessary to achieve the basic public policy goals of record clearing laws, the inclusion of some provision that requires community service and/or completion of some education or certification would definitely increase the benefit to society-- and possibly help overcome some opposition to the bill.

This is a good bill that deserves support. It achieves the main goals of criminal record clearing. More soon...

RecordGone.com Passes Nation's Biggest Firms

According to Alexa.com, the law firm of Higbee & Associates’ flagship web site, www.RecordGone.com, now generates more traffic than the web sites of seven of the ten largest law firms in the United States.

While the web traffic is not how most law firms measure their success, it is a statistic that Mathew Higbee, the founder of HIgbee & Associates, is happy to see. “They may have 200 times more attorneys on their payroll than we do, but more people rely on our web site for legal advice and information,” said. Higbee.

LAW FIRM - ALEXA RATING

RecordGone.com - 174,495

TOP TEN LAW FIRMS
1. Baker & McKenzie - 129,276
2. DLA Piper Rudnick Gray Cary - 154,749
3. Jones Day - 223,398
4. White & Case - 277,902
5. Lathan & Wadkins - 325,860
6. Skadden, Arps, Slate, Meagher & Flom - 223,428
7. Sidley Austin Brown & Wood - 440,435
8. Greenberg Traurig - 168,592
9. Mayer Brown, Rowe & Maw - 261,936
10. Morgan, Lewis & Bockius - 352,453

Domestic Violence Firearm Rights Part II

The question of how to restore firearm rights after a domestic violence conviction is easily one of the top five questions received by any attorney who practices post-conviction relief.

I published a comprehensive memo on analyzing a misdemeanor DV case under the federal law at the domestic violence expungement web site http://www.expungedomesticviolence.com

Please feel free to email me any questions or post them here.

Oklahoma May Expand Expungement Law

Sen. Connie Johnson, D-Oklahoma City is sponsoring the expungement bill that would make some violent felons eligible to have their convictions expunged from court records. More on this soon. Please comment if you know anything about it.

Common Question: Should I Expunge All My UT Convictions Now

Background: The state of Utah has a powerful expungement law that provides more benefits than the expungement laws of most other states. However, the Utah law was poorly written, is contradictory, and is not interpreted consistently by the courts or the agency in charge of making the preliminary determination of eligibility (Bureau of Criminal Identification - BCI).

For example, the law makes the waiting period for someone with a two class A misdemeanor cases longer than for someone with a felony case and class A misdemeanor. Also, if you expunge a felony conviction, you cannot later expunge misdemeanor convictions.

The question above often arises when someone is eligible to have a case expunged but is confronted with the choice of waiting to expunge cases for which they are not yet eligible or cannot afford to pay for at the time.

Here is a hpyothetical for illustration purposes:

Bill Gore was convicted of a class 3 felony violation in Utah in 1983. Mr. Gore is eligible to have this conviction expunged.

Bill Gore was also convicted of a Class B misdemeanor in 2007. Mr. Gore will is not eligible to have this conviction expunged.

Mr. Gore has the following options:

Option 1. Expunge the felony now. Pros: Felony is off of the record. Cons: Never be able to expunge another offense in Utah because 77-18-12 (c) says "the petitioner has previously obtained expungement in any jurisdiction of a crime which would be classified as a felony in Utah;"

Option 2. Wait 3 years from the date of completion on the class B misdemeanor and expunge both convictions. Pros. Mr. Gore will have a totally clean record. Cons: Mr. Gore will have to be a felon for at least 3 more years (assuming the law does not change and make it longer).

Option 3. Reduce the felony to a class A misdemeanor and reduce the class B misdemeanor to a class C misdemeanor and expunge the entire record 3 years after completing the sentence on the 2007 case. Pros: Will leave Mr. Gore with a completely clean record and allows him to get the felony off of his record immediately. Cons: Reducing the two cases will cost more time or money and he will have two convictions on his record until he becomes eligible for expungement on the 2007.

Though not addressed in this hypothetical further complications can arise if the client has already received misdemeanor expungements. 77-18-12.(d) renders a person ineligible for expungement if "the petitioner has previously obtained expungement in any jurisdiction of two or more convictions which would be classified as misdemeanors in Utah unless the convictions would be classified as class B or class C misdemeanors in Utah and 15 years have passed since these misdemeanor convictions."

The best option will really depend on the needs of Mr. Gore, and possibly predictions about the the future of Utah's expungement law, which should be changed to fix the inconsistencies and contradictory policies.

So, while this answer is not really an answer, it should make one thing clear: anyone with multiple convictions who is considering expungement in Utah should work with an attorney who is experienced in expungement law.

-Mathew Higbee

Common Question: Can I Expunge An Infraction In California?

IMPORTANT UPDATE:

Effective on January 1, 2011, California will allow expungement of infractions 1 year after the person was sentenced. To have you infraction expunged, please The Law Firm of Higbee & Associates (RecordGone.com) at 877-573-7273. Higbee & Associates charges $595 for infraction expungement and offers a money back guarantee.

Common Question: Can I Expunge An Infraction In California?

Answer: No, unless it is an exceptionally rare case where the court charges an offense as an infraction in a case that also contains a misdemeanor or felony conviction that is eligible for expungement.

Analysis: California's expungement law is Penal Code section 1203.4. Subsection (b) states that an infraction is not eligible for relief under 1203.4. However, if the conviction contains a conviction that is eligible, the infraction can be dismissed (expunged) along with the rest of the case. Otherwise, if the conviction is just for an infraction, it can never be expunged under existing law. This is a rule of judicial economy. The legislature has continued to take the position that infraction is such an insignificant class of offense that it is not worth court resources to expunge the offense.


IMPORTANT UPDATE:

Effective on January 1, 2011, California will allow expungement of infractions 1 year after the person was sentenced. To have you infraction expunged, please The Law Firm of Higbee & Associates (RecordGone.com) at 877-573-7273. Higbee & Associates charges $595 for infraction expungement and offers a money back guarantee.

Common Question: Can I Expunge A Texas Conviction After I Have It Set Aside

Common Question: Can I Expunge A Texas Felony Conviction After I Have It Set Aside

Quick Answer: No (However, we MAY be able to expunge a class C misdemeanor that has been set aside.)

Background: Many people who do not qualify for expungement or an order of non-disclosure in Texas seek relief through Tex. Code Crim. Pro. Art. 42.12 § 20. This section allows people who were convicted and successfully complete their probation to have their conviction set-aside. The law says a judge "the judge may set aside the verdict or permit the defendant to withdraw the defendant's plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which the defendant has been convicted or to which the defendant has pleaded guilty."

This remedy is a great benefit, but it, in many cases, still leaves a record of the arrest and the court case. Many people who have had their felony case set-aside wish to take it a step further and have the case expunged through Code of Criminal Procedure chapter 55.

Chapter 55 allows "a person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged." The first prong of the eligibility test for Chapter 55 requires that: "an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed." Setting aside the conviction arguably meets this requirement.

However, the setting aside fails to meet a later requirement in Chapter 55 that says "the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor.

The requirement that it be a Class C misdemeanor severely limits the ability to expunge convictions that have been set-aside.

The good news is that setting aside a conviction restores all rights and allows a person to say they do not have a conviction as a result of the case. This benefit greatly exceeds the benefits of expungement laws in many other states.

-Mathew Higbee