Report Title:

Criminal History; Pardons and Expungements

Description:

Requires expungement of records relating to criminal offenses for which the defendant has been convicted but pardoned by the governor.

HOUSE OF REPRESENTATIVES

H.B. NO.

1962

TWENTY-THIRD LEGISLATURE, 2006

  

STATE OF HAWAII

  

 

A BILL FOR AN ACT

 

relating to criminal history.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Section 831-3.2, Hawaii Revised Statutes, is amended as follows:

1. By amending subsections (a), (b), and (c) to read:

"(a) The attorney general, or the attorney general's duly authorized representative within the department of the attorney general, upon written application from a person who was arrested for[,] or charged with, but not convicted of, a crime, or who was convicted of a crime for which the governor has pardoned the person, shall issue an expungement order annulling, canceling, and rescinding the record of arrest[;] and, in the case of a pardon, conviction; provided that an expungement order shall not be issued:

(1) In the case of an arrest for a felony or misdemeanor where conviction has not been obtained because of bail forfeiture;

(2) For a period of five years after arrest or citation in the case of a petty misdemeanor or violation where conviction has not been obtained because of a bail forfeiture;

(3) In the case of an arrest of any person for any offense where conviction has not been obtained because the person has rendered prosecution impossible by absenting oneself from the jurisdiction;

(4) In the case of a person acquitted by reason of a mental or physical defect under chapter 704; and

(5) For a period of one year upon discharge of the defendant and dismissal of the charge against the defendant in the case of a deferred acceptance of guilty plea or nolo contendere plea, in accordance with chapter 853.

Any person entitled to an expungement order [hereunder] under this section may request by written application [also request] return of all fingerprints or photographs taken in connection with the person's arrest. [The] Upon request, attorney general or the attorney general's duly authorized representative within the department of the attorney general, within [120] one hundred twenty days after receipt of the written application, shall[, when so requested,] deliver, or cause to be delivered, all fingerprints or photographs of the person, unless the person has a record of conviction for a separate offense or is a fugitive from justice, in which case the photographs or fingerprints may be retained by the agencies holding such records.

(b) Upon the issuance of the expungement certificate, the person applying for the order shall be treated as not having been arrested or, in the case of a person who was pardoned by the governor, convicted in all respects not otherwise provided for in this section.

(c) Upon the issuance of the expungement order, all [arrest] records pertaining to the arrest [which] that and, in the case of a person who was pardoned by the governor, conviction are in the custody or control of any law enforcement agency of the state or any county government, and [which] that are capable of being forwarded to the attorney general without affecting other records not pertaining to the arrest[,] and, in the case of a person who was pardoned by the governor, conviction shall be so forwarded for placement of the [arrest] records in a confidential file."

2. By amending subsection (e) to read:

"(e) The attorney general or the attorney general's duly authorized representative within the department of the attorney general shall issue, to the person for whom an expungement order has been entered, a certificate stating that the order has been issued and that its effect is to annul the record of a specific arrest[.] and, in the case of a person who was pardoned by the governor, conviction. The certificate shall authorize the person to state, in response to any question or inquiry, whether or not under oath, that the person has no record regarding the specific arrest. Such a statement shall not make the person subject to any action for perjury, civil suit, discharge from employment, or any other adverse action."

SECTION 2. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 3. This Act shall take effect upon its approval.

INTRODUCED BY:

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