Report Title:

Expungements

Description:

Allows for the expungement of violations upon written application to the attorney general; allows for the deletion of digitized records. (SD1)

HOUSE OF REPRESENTATIVES

H.B. NO.

588

TWENTY-THIRD LEGISLATURE, 2005

H.D. 1

STATE OF HAWAII

S.D. 1


 

A BILL FOR AN ACT

 

RELATING TO EXPUNGEMENTS.

 

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

SECTION 1. Chapter 831, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§831-   Expungement orders for violations. (a) The attorney general, or the attorney general's duly authorized representative within the department of the attorney general, upon written application of a person convicted of a violation, may issue an expungement order annulling, canceling, or rescinding the record of violation.

(b) 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 violation, and return any photographs or fingerprints within 120 days of the issuance of the order.

(c) Upon the issuance of the expungement certificate, the person applying for the order shall be treated as not having committed the violation in all respects not otherwise provided for in this section.

(d) Upon the issuance of the expungement order, all records pertaining to the violation that are in the custody or control of any law enforcement agency of the State or any county, and 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.

(e) Records filed under subsection (c) shall not be divulged except upon inquiry by:

(1) A court of law or an agency thereof that is preparing a presentence investigation for the court;

(2) An agency of the federal or state government that is considering the subject person for a position immediately and directly affecting the national or state security; or

(3) A law enforcement agency acting within the scope of their duties.

Response to any other inquiry shall not be different from responses made about persons who have no arrest records.

(f) For purposes of this section, "violation" shall have the same meaning as in section 701-107."

SECTION 2. Section 831-3.2, Hawaii Revised Statutes, is amended by amending subsection (a) read as follows:

"(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; 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 may by written application also request 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, deliver, or cause to be delivered, or cause to be deleted, in the case of digitized images, 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."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.