HB1586

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 arrested for[,] or charged with but not convicted of a crime, shall issue an expungement order annulling, canceling, and rescinding the record of arrest[;], and the judiciary, upon written application from a person who was charged by complaint or indictment for a crime but not convicted of the crime, shall issue an expungement order sealing the entire court file of the complaint or indictment; provided that [an] expungement [~~order~~] orders 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~~] being absent from the jurisdiction; or

(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~~] orders as provided in this subsection may also request, by written application [~~also request~~], the return of all fingerprints or photographs taken in connection with the person's arrest. The 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, shall deliver, or cause to be delivered, all fingerprints or photographs of the person, unless the person has a record of conviction 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[,] or order, the person applying for the certificate or order shall be treated as not having been arrested or charged by complaint or indictment for the crime 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 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[,] shall be so forwarded for placement of the arrest records in a confidential file[.], and all court records pertaining to the charge, including any court records maintained in an electronic medium, shall be sealed."

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 a certificate 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. The certificate shall authorize the person to state, in response to any question or inquiry, regardless of 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.

The judiciary or the court shall issue an order to the person for whom an expungement order has been entered, stating that the expungement order has been issued and that its effect is to seal the court records of the specific complaint or indictment. The order shall authorize the person to state, in response to any question or inquiry, regardless of whether under oath, that the person has no complaint or indictment filed against the person regarding the specific crime. 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:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	1586
TWENTY-FOURTH LEGISLATURE, 2007
STATE OF HAWAII