Can a DUI be expunged in New Hampshire?

Whether a DUI can be cleared at all

A DWI conviction can be annulled, but only after a long wait and never completely. RSA 265-A:21, I overrides the ordinary annulment timetable in RSA 651:5 and bars any court from ordering an annulment of a conviction for driving under the influence, or of aggravated drunken driving, until 10 years after the date of conviction. The same subsection provides that a record annulled this way is retained in a permanent file, opened only for sentencing on a later offense under RSA 265-A:3. RSA 651:5, III also requires the petitioner to have completed all terms and conditions of the sentence and to have been convicted of no other crime in the meantime.

“Notwithstanding the provisions of RSA 651:5, no court shall order an annulment of any record of conviction of driving or attempting to drive a vehicle upon any way ... while under the influence of intoxicating liquor ... or while having an alcohol concentration of 0.08 or more or of aggravated”

The driving record is a separate record

This is the part most summaries leave out. A court can seal or expunge the criminal case and the licensing agency can still keep the DUI on the driver record, where it reaches insurers and counts as a prior offence if there is a second one.

Not addressed on the official pages read. No Division of Motor Vehicles page states what an annulment does to the driving record. The Division describes the driving record as the central site for data gathered from all law enforcement agencies and from County, District, Superior and Circuit courts, containing historical records of suspensions and revocations, restorations, convictions and crash involvement, and states that demerit points stay on the record for three years. RSA 651:5, X directs the court to notify the state police criminal records unit, the prosecuting agency and the arresting agency, and RSA 265-A:21, I keeps an annulled DWI record in a permanent file for sentencing on a later offense.

“The Division of Motor Vehicles administers and enforces motor vehicle statutes that have a direct effect on an individual's driving record, the status of license/operating and vehicle registration privileges. It is the central site for data gathered from all law enforcement agencies, County”

What else sits on that record: suspensions and points in New Hampshire.

How long the wait is, and from when

Ten years from the date of the DWI conviction, under RSA 265-A:21, I. That is longer than the ordinary RSA 651:5, III periods, which run from completion of all terms and conditions of the sentence and are one year for a violation, 2 years for a class B misdemeanor and longer for higher classes. RSA 651:5, III also requires no intervening conviction for any other crime, and it does not excuse a further conviction for driving while intoxicated. For a case that ended in a finding of not guilty, a dismissal or no prosecution on or after January 1, 2019, RSA 651:5, II-a annuls the arrest and court record 30 days after the finding, or on final determination of an appeal affirming it.

“III. Except as provided in RSA 265-A:21 or in paragraphs V and VI, any person convicted of an offense may petition for annulment of the record of arrest, conviction, and sentence when the petitioner has completed all the terms and conditions of the sentence and has thereafter been convicted of no”

Automatic or by petition

New Hampshire has no Clean Slate law for convictions, so clearing a DWI conviction requires a petition to the sentencing court under RSA 651:5. Non-convictions are different: for an offense disposed of on or after January 1, 2019, RSA 651:5, II-a annuls the arrest record and court record where the arrest resulted in a finding of not guilty on all charges, or the case was dismissed or not prosecuted, 30 days after the finding of dismissal if no appeal is taken, or on final determination of an appeal affirming it. The same treatment applies where a conviction was later vacated by a court.

“II-a. (a) For an offense disposed of on or after January 1, 2019, any person whose arrest has resulted in a finding of not guilty on all charges that resulted from the arrest, or whose case was dismissed or not prosecuted, shall have the arrest record and court record annulled”

Where it is filed, and what it costs

A separate form is completed for each offense. RSA 651:5, IX requires the court to have the Department of Corrections report on any state or federal convictions, arrests or prosecutions, and sets a $100 Department of Corrections investigation fee and a $100 Department of Safety fee for researching and correcting the criminal history record, each waived on a showing of indigency or where the case ended in a finding of not guilty, dismissal or no prosecution. RSA 651:5, X(d) allows the state police a fee not to exceed $100 to remove the annulled record and inform state and federal agencies, on the same waiver terms. A request to waive the court filing fee goes on a form supplied by the court. The Judicial Branch also publishes forms 3056-DSe and 3057-DSe for petitions of eligibility for annulment of a non-conviction and a conviction, and an Annulment of Criminal Records Checklist.

“The department shall charge the petitioner a fee of $100 to cover the cost of such investigation unless the petitioner demonstrates that he or she is indigent ... The department of safety shall charge the successful petitioner a fee of $100 for researching and correcting the criminal history record”

Whether a cleared DUI still counts as a prior

An annulled DWI still counts. RSA 265-A:21, I states that a record annulled under it is retained in a permanent file, to be opened only for purposes of sentencing on a later offense. RSA 651:5, X(a) adds that on conviction of any crime committed after the annulment order, the prior conviction may be considered by the court in sentencing and may be counted toward habitual offender status under RSA 259:39. RSA 265-A:18 sets DWI penalty enhancements by reference to prior convictions within the 10 years preceding the later offense.

“Any record thus annulled shall be retained in a permanent file, to be opened only for purposes of sentencing in the case of an offense under RSA 265-A:3.”

The statute: N.H. Rev. Stat. Ann. § 651:5, with § 265-A:21

“651:5 Annulment of Criminal Records. I. Except as provided in paragraphs V-VIII, the record of arrest, conviction and sentence of any person may be annulled by the sentencing court at any time in response to a petition for annulment which is timely brought in accordance with the provisions of this”