Of course not anyone with a criminal record is eligible for expungement -the law provides that any criminal charge, with the exception of a “crime of violence”, is eligible for expungement. The law defines a “crime of violence” as follows: murder, manslaughter, first degree arson, kidnapping with intent to extort, robbery, larceny from the person, first degree sexual assault, second degree sexual assault, first and second degree child molestation, assault with intent to murder, assault with intent to rob, assault with intent to commit first degree sexual assault, burglary, and entering a dwelling house with intent to commit murder, robbery, sexual assault, or larceny. Anyone convicted of a “crime of violence” is ineligible for “expungement”. Anyone who is a “first offender” is eligible to have their criminal record expunged.
The law defines a “first offender” as follows: a person who has not been previously convicted of or placed on probation for a felony or a misdemeanor and against whom there is no criminal proceeding pending in any court.
Anyone convicted or placed on probation on more than one occasion is ineligible for expungement. The waiting period for expungement is as follows:
For misdemeanors - (5) years after the successful completion (no intervening convictions, probation, or pending cases) of your sentence and/or probation.
For felonies - (10) years after the successful completion (no intervening convictions, probation, or pending cases) of your sentence and/or probation.
Whether you are eligible and deserving of an expungement must be determined by a judge of the court that originally heard the case. As mentioned previously in order to be eligible to have your criminal record expunged you must be a “first offender” and not have been convicted of a “crime of violence”.
The law also requires that in order to have your criminal record expunged you must be deserving of it. That is, you must be able to demonstrate to the court’s satisfaction that you are of good moral character; have been rehabilitated and; the expungement of your criminal record is consistent with the public interest, proof of which can include but is not limited to the following:
o Regular employment and financial and other support of family
o Successful completion of substance abuse and/or mental health counseling.
o Community or other public service
o Professional certification or licensing in field of employment
o Otherwise eligible for induction into the armed forces of the United States
The actual procedure for obtaining expungement is commenced by filing a motion to expunge with the court. Some but not all courts have blank motions to expunge that you can fill out and file with the court yourself. An attorney can assist you with completing the necessary paperwork including scheduling the motion for a hearing and giving you the date that it will be heard by the court. After filing the motion to expunge you are required to give notice of the date that it will be heard by the court to the Department of Attorney General and the police department that originally brought the charge. On the day that your motion to expunge is heard by the court you should be prepared to provide the following information about yourself to the judge hearing the motion:
o Have not been convicted or received probation for a “crime of violence”
o Are a “first offender”
o Possess good moral character
o Have been successfully rehabilitated and
o The expungement of your criminal record is consistent with the public interest
If your motion to expunge is granted, the court will provide you with copies of an order requiring that any and all records relating to the expunged case be deleted from the public record. A copy of this expungement order should be mailed to the Department of Attorney General and any other law enforcement agency known to have copies of these records. With certain very limited exceptions, any person having his or her record expunged shall be released from all penalties and disabilities resulting from the crime of which he or she had been convicted.
Again, with certain very limited exceptions, in any application for employment, license, or other civil right or privilege, or any appearance as a witness, a person whose conviction of a crime has been expunged pursuant to this chapter may state that he or she has never been convicted of the crime. According to RIGL § 12-1 3-4 (b), any person who is "an applicant for a law enforcement agency position, for admission to the bar of any court, an applicant for a teaching certificate, under chapter 11 of title 12, a coaching certificate under § 16-11. 1-1, or the operator or employee of an early childhood educational facility pursuant to chapter 48-1 of title 16," is required to disclose the fact of a conviction.
in Rhode Island DUI and DWI cases. Often times, a Rhode Island Drunk Driving investigation
can only be held invalid by way of the concise and direct questions of the Defense Lawyer.
Preparation by the Rhode Island defense attorney for the cross-examination of prosecution
witnesses must take into account the probable testimony of such witnesses as policemen, experts,
and laymen. A Rhode Island Defense Lawyer should not overlook the possibility that the
bartender serving the defendant prior to his arrest might be a witness for the prosecution.
Counsel should note, during direct examination of prosecution witnesses, all primary
facts observed on which each witness bases his conclusion of intoxication. He can then
separately challenge the validity of each of these facts as establishing intoxication. However,
counsel should ignore facts testified to that he is unable to challenge, since cross-examination as
to these facts would simply emphasize the strength of the prosecution case to the jury. Instead,
counsel should question the witness whether separate primary facts on which he based his
opinion of intoxication might have been attributable to a cause other than intoxication.
Defense counsel should preliminarily ask the policeman to define intoxication. If a proper
definition is given, no harm is done since the jury figures that the witness was supposed to
know it. If an improper one is given, on the other hand, the fact can be very effectively used in
arguments to the jury.
"In a RI DUI case, the attorney of record should have an in depth knowledge of the constitutional requisites for the admissibility of evidence."
"How recent interpretations of Confrontation Clause and hearsay rules will impact admissibility of Breathalyzer certificates in drunk driving, DUI, DWI, and Driving under the influence prosecutions…"
Court of Appeals of Virginia,
Phillip Lawton GRANT v. COMMONWEALTH of Virginia.
Record No. 0877-08-4.
Sept. 1, 2009.
Background: Defendant was convicted in the Circuit Court, Fairfax County, Bruce D. White, J., of driving while intoxicated. Defendant appealed.
Holdings: The Court of Appeals, Petty, J., held that:
(1) attestation clause in certificate memorializing the results of a blood test was testimonial in nature, and its admission violated the Confrontation Clause, and
(2) admission of certificate in violation of Confrontation Clause was not harmless error, and required reversal.
Reversed and remanded.
Present: FELTON, C.J., and FRANK and PETTY, JJ.
*716 Appellant, Phillip Lawton Grant, challenges his conviction for driving while intoxicated, in violation of Code § 18.2-266. Grant argues that his conviction should be reversed because the certificate of the results of a chemical analysis of his breath indicating his blood alcohol level was admitted into evidence in violation of his Sixth Amendment right to confront witnesses against him.FN1 **86 For the reasons explained below, we agree with Grant and reverse his conviction.
FN1. Grant's question presented on appeal is:
Whether the trial court erred by denying appellant's motion to exclude from evidence, or alternatively to strike from evidence, the certificate of analysis because the Commonwealth failed to comply with appellant's timely “Notice of Defendant's Exercise of Confrontation Rights Pursuant to Va.Code 19.2-187.1.”
While both parties argued that the statutes governing the admissibility of the breath test certificate are Code §§ 19.2-187 and 19.2-187.1, the express statutory authority for the admission of a breath test certificate is set out in Code § 18.2-268.9.Code § 19.2-187 is limited to certificates of analysis prepared by the Division of Consolidated Laboratory Services, the Department of Forensic Science, and certain other enumerated laboratories. Further, Code § 19.2-187.1 only provides for a right by the defendant to examine persons performing analysis pursuant to Code § 19.2-187. It does not appear that the Fairfax County Adult Detention Center is one of the laboratories enumerated in Code § 19.2-187. However, whether the parties and the trial court relied upon the correct statutory scheme addressing the admissibility of the breath test certificate is not before us in this appeal. Therefore, we assume without deciding for the purposes of this opinion that Code § 19.2-187.1 is applicable to this case.