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Cleaning Your Old Criminal Records
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By Atty. Mark Stevens
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“It is important for any one with prior convictions on
her record to know her options.”
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An old criminal conviction can haunt you for years, even a lifetime. Convictions
appear during employment background checks, and nosy neighbors and
co-workers can Google your name and find them. Employers ask job applicants
pesky questions about prior felony and misdemeanor convictions. Criminal
convictions can prevent a person from joining the military; they can affect
immigration status, and they can adversely affect people in other ways for
(sometimes) very old and often very minor convictions.
In an economy and job market as competitive as this one, it is best to try and
wipe the criminal slate clean by removing criminal convictions from your record.
There are a few ways to accomplish this goal in New Hampshire, which I will
outline here. Post-conviction proceedings can be tricky though, and they should
be navigated, if possible, with the advice and guidance of a criminal defense
lawyer with post-conviction experience.
One procedure involves filing a motion to vacate the conviction in the trial court
in which it was originally entered. This is common in my practice in New
Hampshire DWI cases where the driver is charged with a second offense. Often
a person has a prior conviction that never should have been a conviction in the
first place, but sometimes either through financial hardship or other reasons the
driver did not hire a good criminal defense lawyer in their prior case, and they
now face some horrible consequences on a new case. The upside of a
successful motion to vacate a conviction is that the conviction is gone; the
downside is that you may now have re-opened the old case and exposed
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yourself to a worse sentence than you received originally.
To explore whether a motion to vacate a conviction is appropriate, we look at the
record of the prior conviction for constitutional infirmities, primarily whether the
accused knew her constitutional rights at the time of the prior guilty plea, as well
as whether she affirmatively waived those rights knowingly, intelligently and
voluntarily. The three major rights a person must understand and waive prior to
entering a guilty plea are 1). the right to a trial, 2). the right to confront the
witnesses against you, and 3). the privilege against self-incrimination. If any of
these rights were not explained, a motion to vacate the old conviction might
succeed.
Another, safer, way to clean a record is to file a petition to annul the record of
conviction. You can also petition to annul records of arrests that did not result
in convictions. In New Hampshire, RSA 651:III governs the time requirements for
annulments of criminal and violation level convictions. For a violation, except
motor vehicle offenses, you can file a petition to annul the conviction one year
after the sentence has been completed. For most (non-DWI) motor vehicle
convictions, the waiting period is seven years after the conviction before a
petition to annul can be filed. For a DWI conviction the waiting period is 10
years. For other misdemeanors there is a three year wait.
If you are eligible to seek annulment of your prior convictions you should do so
as soon as you can. The procedure is relatively inexpensive considering the
benefits of wiping your slate clean. This procedure is legally technical though
and it is advisable to seek legal counsel before attempting this type of effort.
Most experienced criminal defense lawyers in this state will give you a free
consultation to discuss the merits of a petition to annul in your specific case.
You should ensure that you are time-eligible to file each petition; if your petition
to annul is unsuccessful you must wait for three years before you are eligible to
petition again.
It is important for any one with prior convictions on her record to know her legal
rights and options. You should carefully consider, with the advice of counsel,
how you proceed if you or a loved one has criminal convictions or motor vehicle
violations on your record that you would like to cleanse.
Attorney Mark Stevens is a criminal law lawyer and practices in NH and MA.
Contact him at www.byebyedwi.com
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