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How to Annul, The Process

Sat, 01/23/2016 - 13:15 -- bregan
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How to Remove Your Criminal Record

Who do I ask to remove my criminal record?

You must ask a court to remove an entry from your criminal record. Which court you ask depends on what you are looking to remove. You must ask the court in which you were convicted, or if no conviction resulted, the court where the case was resolved. For an arrest or charge that was dismissed or not prosecuted, you must ask the court that dismissed the charge. For an arrest or charge with a not guilty finding, you must ask the court that issued the not guilty finding. For a conviction and sentence, you must ask the court that issued the conviction and sentence.

How do I ask the court to remove my criminal record?

You should first consult with an attorney before bringing your case to court. An attorney can review your case to make sure you are eligible for an annulment. An attorney can help you ask the court to remove your criminal record and complete the necessary paperwork to begin the process. You can ask the court to remove your criminal record by submitting a form to the court. The form is called Petition to Annul Record. Review this form carefully to understand the information it requires. Also review the Annulment of Criminal Record Checklist.

How do I file my petition if I have a criminal record with multiple convictions or arrests in one court?

You have to file a separate Petition to Annul for each conviction you want to remove from your record. You have to file separate petitions for each conviction even if they all occurred at the same time and in the same court. The same goes for an arrest, unless it is associated with the conviction you are already asking the court to remove. In other words, if you have multiple arrests out of one court, even if they all occurred at one time, you still have to file a separate petition for each arrest that did not result in a conviction.

How do I file my petition if I have a criminal record with convictions or arrests from different courts in New Hampshire?

If you want to remove more than one conviction or arrest from your record and the dispositions were completed in different courts, you must file separate petitions with each court. You also have to file a separate Petition to Annul for each conviction you want to remove from your record. You may have to file more than one petition in one court and you may have to file petitions in more than one court.

What if I want to remove something from my record, but it happened in another state?

You can only ask a New Hampshire court to remove the arrests, charges, or convictions from your record if they occurred in New Hampshire. For assistance with a criminal record from a state other than New Hampshire, see the Legal Services Corporation website.

How will my out of state convictions impact my petition for annulment in New Hampshire?

During the investigation phase of the annulment process, the Department of Corrections (DOC) will document your out of state convictions. These convictions may impact the DOC’s recommendation to the court. The investigation by the DOC is explained more here. For more information see the section on the DOC investigation . The Judge may consider any out of state convictions when reviewing your request and determining if the removal of your record is consistent with the public welfare. For more information see the section on consistent with the public welfare.

Can I remove a federal or military charge from my record in New Hampshire?

Federal and military convictions are not covered by New Hampshire courts. If you are looking to remove this type of conviction from your record, you should start with consulting an attorney who handles those areas of law. You should be aware that there is no federal annulment process, but an individual can apply for a Presidential Pardon through the relevant federal process.

How will my federal or military convictions impact my petition for annulment in New Hampshire?

During the investigation phase of the annulment process, the Department of Corrections (DOC) will document any federal or military convictions you may have. These convictions may impact the DOC’s recommendation to the court. For more information see the section on the DOC investigation . The judge may consider the federal and military convictions when reviewing your request and determining if the removal of your record is consistent with the public welfare. See the section on the legal standard of consistent with the public welfare.

When am I eligible to ask the court to remove my criminal record?

Your eligibility to remove your criminal record depends on several factors. One of the main factors is the waiting periods set by New Hampshire law. The waiting periods only apply to certain requests. To annul a conviction, you must satisfy the waiting periods before requesting the court remove it from your record. There are several different waiting periods and they are often related to the seriousness of the offense. The seriousness of an offense is described by its “class” or “level.” A violation level offense is the least serious offense. It is considered non-criminal. Most minor driving offenses are considered violation level offenses. The next level of offenses are misdemeanors and they are further broken down by class “A” and class “B.” Class “A” offenses are more serious than class “B” offenses. The most serious level of offenses are felonies, which are also further described by class “A” or “B. ” Again, class A felonies being more serious than class B felonies. There is a longer waiting period for a felony level offense compared to a misdemeanor because a felony is a more serious offense.

Additionally, your eligibility becomes more complicated if you receive additional charges while your request to remove your record is pending with the court. If you have had recent police contact or you believe you might be arrested for something new, it is very important to consult with an attorney before asking the court to remove your record. The timing of filing the petitionin can be very important in these circumstances.

The timing depends on what you ask the court to remove.

- For an arrest with a not guilty finding: You can petition the court as soon as the case is closed. You are always eligible to annul records of a not guilty finding immediately after the case is closed.

- For an arrest that was dismissed/not prosecuted: You can petition the court as soon as the case is closed. You are always eligible to annul records where no conviction was entered and the case is closed.

- For a conviction: You must have completed all the requirements of the original sentence, including the expiration of any terms of the sentence which were “suspended,” and you must satisfy the waiting periods required by New Hampshire law. Most waiting periods start when the sentences are complete. There are some convictions that cannot be annulled. The following waiting periods are an overview of time frames but may not apply to all convictions:

o Violation level offenses: 1 year from date of sentence completion (other than certain motor vehicle offenses which are covered by a separate law)

o Class B misdemeanors: 2 years from date of sentence completion

o Class A misdemeanors: 3 years from date of sentence completion

o For any misdemeanor where the victim was, at the time of the offense, a family or household member or intimate partner: 3 years from the date of sentence completion.

o Class B felonies: 5 years from date of sentence completion o Class A felonies: 10 years from date of sentence completion

Which driving offenses have a 7 year waiting period?

Certain driving offenses covered by the Habitual Offender law, even if classified as a violation, have a waiting period longer than one year. The following are the list of driving offenses covered by the Habitual Offender law that require a waiting period of at least 7 years after the conviction date.

- 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, RSA 265:75

- 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

- Driving Without Proof of Financial Responsibility, RSA 263:63

Convictions for the above offense must then also comply with the waiting periods of:

o Violation level offenses: 1 year from date of sentence completion (other than certain motor vehicle offenses which are covered by a separate law)

o Class B misdemeanors: 2 years from date of sentence completion

o Class A misdemeanors: 3 years from date of sentence completion

o For any misdemeanor where the victim was, at the time of the offense, a family or household member or intimate partner: 3 years from the date of sentence completion.

o Class B felonies: 5 years from date of sentence completion

o Class A felonies: 10 years from date of sentence completion

What driving offenses have a 10 year waiting period?

Any conviction for driving or attempting to drive a vehicle, OHRV (Off-Highway Recreational Vehicle), or a boat while under the influence of an intoxicating liquor or controlled drug, prescription drug, over the counter drug, or any other chemical substance which impairs a person’s ability to drive or a blood alcohol concentration of 0.08 or more must wait 10 years after the date of conviction to ask the court for an annulment and must also comply with the waiting periods of:

o Violation level offenses: 1 year from date of sentence completion (other than certain motor vehicle offenses which are covered by a separate law)

o Class B misdemeanors: 2 years from date of sentence completion

o Class A misdemeanors: 3 years from date of sentence completion

o For any misdemeanor where the victim was, at the time of the offense, a family or household member or intimate partner: 3 years from the date of sentence completion.

o Class B felonies: 5 years from date of sentence completion

o Class A felonies: 10 years from date of sentence completion

What other offenses carry a special waiting period restriction?

Any felony under the controlled drug act (NH RSA 318-B) cannot be annulled until 7 years after the date of conviction and must also comply with the waiting periods of:

o Class B felonies: 5 years from date of sentence completion

o Class A felonies: 10 years from date of sentence completion

What happens if I ask the court to remove my criminal record but I have not completed the full waiting period(s)?

If you ask the court to remove your record but you have not finished all of the waiting periods, then the court will likely reject your petition and you may have to wait three years before being able to request an annulment on the same conviction.

What happens if I make a mistake when asking the court to remove my criminal record?

If you ask the court to remove your record but your request is rejected because it is not correctly filed or because it was not prepared correctly, you may not be able to ask the court again for three years.

What are the costs/fees to remove a Criminal Record?

- The Court filing fee is $125.00. This fee can cover multiple petitions in one court if the petitions are filed at the same time.

- The fee for the Department of Corrections (DOC) investigation is $100.00. This fee is paid directly to the DOC. The DOC will send you notification when the fee is due. This fee may cover multiple petitions even if filed in different courts. You should contact the DOC after filing the petitions with the courts to notify their office of the multiple petitions and request one report.

- The Department of Safety/State Police fee is $100.00 to research and correct your criminal record if the Petition to Annul is granted. The fee is paid directly to the Department of Safety. The $100.00 fee is calculated based on each conviction you want to correct on your record.

However, if you have multiple convictions annulled from one court, then the $100.00 will cover all of the convictions from that court. If you have multiple annulled convictions from different courts, the fee is calculated for each court where you annulled the convictions. This fee does not apply to charges that did not result in a conviction.

What if I cannot afford the fees to remove my criminal record?

You may not be required to pay all of the fees if you have limited income. You can complete a form called a financial affidavit to show the court your financial situation. The court may waive its fee. The court is not able to waive the Department of Corrections fee for investigation or the Department of Safety fee for correction of the criminal record.

How do I prepare to work with a legal advocate to remove my criminal record?

Follow these steps:

1. Gather the documents

a. You should have a recent copy of your criminal record from the State of New Hampshire. If you do not have a recent copy, you should request one, to ensure you have all of the accurate information.  If you need help completing this step, contact LARC by applying online. Once you submit your online application, LARC will call you back to complete your intake. Or you can call LARC at 1-855-757-6700. You will leave a message with your full name, phone number, and the best times to reach you and LARC will call you back.

b. Gather all of the documents relating your criminal cases and put them in one place. You should try to locate all of the papers that contain information about your criminal arrest, charge, conviction, and sentence.

c. Driving Record: if you have any copies of your driving record you should locate these documents. If you do not have a copy of your driving record or the documents are very old you should consider obtaining your records.  If you need help completing this step, contact LARC by applying online. Once you submit your online application, LARC will call you back to complete your intake. Or you can call LARC at 1-855-757-6700. You will leave a message with your full name, phone number, and the best times to reach you and LARC will call you back.

2. Write down the information you know about your criminal and driving records. You should do this for every criminal or driving arrest or charge, or entry on your record. Write:

a. the police department;

b. the name of the charge;

c. the number of the law (called “RSA”);

d. the “class” of offense (class A or B felony, Class A or B misdemeanor, or a violation level offense);

e. the disposition (dismissed, nol prossed (not prosecuted), placed on file without a finding, not guilty, no contest, or guilty).

If you were convicted:

f. the sentence (the length of time in jail/prison, the length of suspended time, the length of probation/parole, the length of a no contact order, the amount of the fine, the number of hours for community service);

g. the date the court issued the sentence;

h. the name of the court that issued the sentence;

i. the date when all terms, requirements, or conditions of the sentence were completed;

j. how you have been harmed by this conviction;

k. how you have rehabilitated yourself since the conviction; and

l. why an annulment will assist you in moving your life forward.

m. If you do not know the answer to some of these questions, make a list of the answers you know and then apply to LARC online. Once you submit your online application, LARC will call you back to complete your intake. Or you can call LARC at 1-855-757-6700. Leave a message with your full name, phone number, and the best times to reach you, and LARC will call you back.

What happens after I make my request with the court? 

- Once you give your request to the court, the clerk notifies the Department of Corrections (DOC) for an investigation. This means the DOC, usually through a probation officer, reviews your criminal history. The DOC determines if you have satisfied the required waiting periods. 

- The DOC also contacts you to fill out a questionnaire.  The DOC will not complete its report until you return the questionnaire.

- The DOC makes a determination of whether you are eligible to remove your record. The DOC writes a report for the court.

- Once the investigation is complete, the DOC gives its determination or recommendation to the court. The court will not consider your request until the DOC gives its report to the court.

- This means the faster you respond to the questionnaire, the faster the DOC completes its report, and the faster the court will make a decision.

Will I have to attend a hearing in front of a judge to remove my record?

- You might not have to appear in front of a judge to remove your criminal record. A hearing is not always required.

- There is a higher likelihood of a hearing if:

   o The prosecutor disagrees with your request to remove your record OR

   o The Department of Corrections (DOC) disagrees with your request after completing its investigation into your background.

- The court may decide to hold a hearing if the judge wants to know additional information from you, the prosecutor, or the DOC. 

How does the judge make a decision about my request to remove my record? 

- The judge has “discretion” to decide whether to remove your record based upon the information presented to the court. Discretion means the judge has the ability to choose the outcome.

- The judge bases his decision on whether the removal of your record will assist in your rehabilitation and will be consistent with the public welfare.

How do I show the judge removal of my record will assist in my rehabilitation?

- Rehabilitation means you have learned from the past and have taken steps to ensure that the behavior that caused the criminal charge will not happen again.

- You can show the judge that you have already started to rehabilitate yourself.

   o You completed all the requirements of your sentence.

   o You engaged in counseling or some other form of treatment to address the behavior that caused the criminal charge.

   o You have not committed the same offense again.

- By showing the judge you have started some steps of rehabilitation, you can show the judge the next reasonable step is to remove your record so you can continue on the path to rehabilitation.

- You also want to show the judge how the criminal record is preventing you from taking some of the steps to rehabilitation. Your record has prevented you from:

   o maintaining regular employment,

   o getting into stable housing, or

   o furthering your education.

How do I show the judge removal of my record will be consistent with the public welfare?

The court will not grant an annulment in cases where there is reason to believe that you pose a threat to the safety and well-being of the public. You want to show the judge, again, that the behaviors that lead to the original charge will not occur in the future.

For example, if you ask the court to remove a theft charge, you explain to the judge the behavior that lead to that charge. A person may say, "At the time of my arrest, I was struggling to support my family.” “I lost my job and could not provide my family with basic necessities.” “I have now secured employment and have been working hard to make a living in an honest way.” “I want to apply for other jobs now that I have more job training.” “My record is hurting my ability to get better employment despite my efforts to demonstrate my job experience.”

How will I know what the court decided? 

The court issues a written decision after considering your request. The court sends you the written decision in the mail. The length of time it will take to receive the decision will vary depending on the court. If your contact information changes after filing your petition with the court, you should call the Court Call Center to update your contact information. You can reach the Court Call Center by dialing 1-855-212-1234.

Date: 
1/23/2016
Author: 
bregan

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