Expungement in Rhode Island (RI)! What Criminal Records Can Be Erased?

More Details about RI Expungement here.

Tweet This

Expungement in Rhode Island (RI)! What Criminal Records Can Be Erased? Unraveling the Myth!
By: David Slepkow
Article ID: 862043 

Article Submitted: August 24, 2008
Category: Legal :: Criminal Law
Article Word Count: 1321
Everything you need to know about Expungements in Rhode Island by a RI Lawyer!This article was written by Rhode Island Criminal Defense Lawyer David Slepkow 401-437-1100Background InformationRhode Island (RI) has some of the most liberal expungement laws in the United States. If you are eligible for an expungement, why not get those menacing and harmful criminal records erased, sealed or destroyed! If a criminal record is expunged you are legally allowed to tell others that you have no record.This article is an in depth and in detail explanation of Expungement law in RI as of August 2008. Expungement law and policy is in a state of flux. The legislature is attempting to make expungement policy even more liberal, while the governor is trying to make it more difficult to expunge records. Even the Supreme Court of Rhode Island (RI) has recently weighed in on expungment matters. These three branches of government are in disagreement concerning expungement policy. Please research potential recent changes to expungement law.In order to get a Criminal record expunged in Rhode Island, a motion must be filed and a Court hearing is required. You should contact a Rhode Island Criminal Law Expungement Attorney / Lawyer.Expungement of Dismissed records

The general rule is that dismissed criminal charges (48a) can always be expunged. Many people don’t realize that records of alleged crimes that are dismissed should be expunged / erased. Even though the case was dismissed, there is still an indication on the Rhode Island criminal computer records and on your Bureau of Criminal Identification (BCI) report that you were charged with the criminal offense.

The public can easily view the dismissed records and other rhode Island criminal records at http://courtconnect.courts.state.ri.us

Many people will assume that you did something wrong even if the case was dismissed. Some people will assume that you just “got off on a technicality” or that you are a bad character by the very fact that you were charged.

You cannot expunge a dismissal, not guilty finding or no information if you have a prior felony conviction. This Law uses the strict definition of a conviction which is jail, suspended sentence or a fine.

If you can wait long enough to get the felony charges expunged (10 years after the conviction) then afterward you can expunge the dismissals and not guilty finding or no information.

All legal article written by Rhode Island Attorney David Slepkow can be found at http://www.slepkowlaw.com/ri-law.htm

Are there dismissed charges that cannot be expunged immediately?

A dismissed charge may not be able to be expunged if the related charges cannot be expunged. For example, if you were charged with three offenses related to the same incident and 2 were dismissed but the third you recieved a sentence of probation. You would have to wait until the probation charge could be expunged until the other dismissed charges could also be expunged. The reason for this is because you cannot destroy portions of a file! I believe the primary reason for this rule is because it is logistically impossible to expunge a charge when there are other records in a related incident that cannot be expunged.

For example, John was charged with domestic assault, failure to relinquish telephone and disordely conduct arising out of a domestic dispute with his wife related to their pending divorce. John recieved probation on the disorderly conduct. The assault and failure to relinquish phone charges were dismissed. John would not be allowed to expunge the two dismissed charges and would need to wait five years after completion of the probation to dismiss all the charges.

All criminal Law articles written by Rhode Island Criminal Lawyer David Slepkow can be found at www.slepkowlaw.com/ri-criminal.htm

Expungement of Not Guilty findings.

The general rule is that not guilty findings after trial by a judge or jury can be expunged. However, if the not guilty finding relates out of the same incident for another charge which cannot be expunged then the not guilty finding cannot be expunged until the other charges can be expunged.

Pursuant to Rhode Island Law the following types of cases can always be expunged: Dismissals, No information, Not Guilty unless there is a prior felony conviction ( suspended sentence / jail or fine)

Expungement of one year filings

A filing is a penalty that is typically offered for first time offenders for relatively minor misdemeanors. A filing is the lowest form of penalty available and is always better than probation for an accused. A filing is when the case is put aside for a year and if the person stays out of trouble for a year then the case is eligible to be expunged and destroyed at the end of the year.

If a person gets in further trouble during the filing period then the person may be “violated” and the person sentenced again for violating the filing. A person must be very careful to stay out of trouble during the filing period. If the person is charged with a new crime, the person will be brought before the Court as a violater as well as charged with a new crime.

At the initial arraignment, a person with a filing can be held for 10 days without a hearing.

If the person takes a plea deal on the violation of the filing or probation and a plea agreemeent on the new charge then neither of the charges can be exunged.

If a person is not violated during the filing period then a filing can be expunged even if there are other offenses after the filing.

Be careful, do not forget to have your filing expunged at the end of the year! It is not automatic. A certified copy of the expungement order must also be sent to the Rhode Island Attorney General ‘s office and the local police department that pursued the criminal charge.

Remember, Under RI Criminal Law, A plea of nolo contendere with a filing and no fine is never a conviction.

Expungement or convictions, suspended sentences, deferred sentences, jail sentences or probation

A misdemeanor or felony conviction is any sentence with a fine, suspended sentence or period of incarceration. Even though probation does not constitute a convictions under Rhode Island Law it is treated the same way as convictions for expungement purposes.

A misdemeanor case with the following sentence can be expunged five years after the completion of the sentence or probationary period: probation, suspended sentence,   fine, jail.

A felony conviction, suspended sentence or probation sentence can be expunged ten years after the completion of the sentence or probationary period. Under the current state of Rhode Island law you cannot have any conviction, suspended sentence , fine or probation expunged if you have another conviction, suspended sentence , fine or probation on your record.

Expungement of felony deferred sentences

If a person receives a 5 year deferred sentence on a felony charge, the person can have the deferred sentence expunged at the end of the 5 year period. A deferred sentence can be expunged so long as the person was not violated during the 5 year deferred period. A person with a another conviction or arrest can have the deferred sentence expunged so long as they were not violated during the five year period. Editor NOTE  9/10/10 The Attorney General is now objecting to the retrocactivity of the deferred sentence statute. The matter is now before the Rhode Ilsand Supreme Court.

Crimes of Violence issues

Certain crimes of violence can never be expunged and R.I.G.L § 12-1.3-1. states:-”Crime of violence” includes 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.

Noticeable absent from the definition of crimes of violence is “assault.” It could be argued that assault is not a crime of violence as it relates to expungement. If the legislature intended that assault could not be expunged they would have included it in the list.

Legal Notice per RI Rules of Professional Responsibility:

The Rhode Island Supreme Court licenses all lawyers and attorneys in the general practice of law, but does not license or certify any lawyer/ attorney as an expert or specialist in any field of practice.

David Slepkow is a Rhode Island lawyer concentrating in criminal law, dui / dwi, breathalyzer refusals, restrianing orders/ no contact orders, divorce, family law, child custody / support / visitation and personal injury.

David Slepkow is a Rhode Island lawyer concentrating in divorce, criminal law, family law, child support,custody and visitation. David has been practicing for over 15 years and is licensed in rhode Island , Massachusetts and Federal Court.

 

 

Contact the Author

David Slepkow
Rhode Island Law
More Details about RI Expungement here.

Erase & Expunge Dismissed Criminal Records in RI by a Criminal Defense Lawyer

Expunge all criminal dismissals and Not Guilty findings in Rhode Island Criminal law!

All dismissals and not Guilty findings in Rhode Island should be expunged! This includes both felony and Criminal Misdemeanor dismissals in RI. All criminal records are bad records! Expungement is the process in which criminal records are either destroyed or sealed. Essentially an expungement erases criminal records for most purposes.

You cannot expunge a dismissal or not guilty finding without filing a motion and without a brief court hearing! People often ask: “If the case was dismissed why should I get it expunged?” The answer is simple. A dismissed or not guilty case still stays on your record! A negative criminal record could affect your ability to find employment, obtain a promotion or may harm your reputation socially.

A not guilty finding occurs after a judge or jury determines that you are not guilty after a trial. Cases in which there was no information should also be expunged.
Nobody wants their friends , colleagues or others fishing around looking into old police reports and records when the case was dismissed. In Rhode Island all criminal records can be viewed by the general public at Courtconnect.courts.state.ri.us People tend to wrongly assume that if you were charged with a crime that you must be a bad apple. People assume that you must have been guilty, even if the case was dismissed! People assume that you must have got off on a technicality.

If it was a domestic case (such as domestic assault, domestic vandalism or domestic disorderly conduct) which was dismissed then people often assume that the case was dismissed because the alleged victim, girlfriend or wife was too afraid to go forward or was financially dependant on you.It is rare that people assume that the case was dismissed because you didn’t do anything, were wrongly accused or were actually innocent! People have been conditioned to believe that all domestic charges are valid and if the case was dismissed it is part of a larger societal problem of domestic violence victims being too embarrassed or afraid to go forward and testify.

An expungement of dismissals and not guilty findings can also effect how the police will perceive you and treat you in the future. For example, if the police pull over your car they may be more likely to conduct a search if you have a criminal history even if those cases were dismissed.If another domestic incident / allegation occurs, you may be more likely to be arrested because of the negative implications of a dismissal. Potential spouses may review your criminal record before dating.

Another reason to expunge a dismissal is because if you are later convicted of a felony you may not be able to expunge the dismissal.A person with a felony conviction cannot have a not guilty finding or dismissal expunged One year filings should also be expunged at the end of the year.

Certain felony and misdemeanor convictions and probationary periods can also be expunged after a waiting period. A felony conviction or probationary period may be expunged after ten years form the end of a sentence if other legal requirements and prerequisites are met. A misdemeanor conviction or period of probation may be expunged after five (5) years from the end of a sentence if other legal requirements and prerequisites are met.

Dismissals that were never expunged can come back to haunt someone in a divorce, child custody or family law case. A spouse can seek to use the criminal record of dismissal to get an advantage in a divorce or child custody case in Family Court.

Rhode Island Attorneys legal Notice per RI Rules of Professional Responsibility:

The Rhode Island Supreme Court licenses all lawyers in the general practice of law, but does not license or certify any lawyer as an expert or specialist in any field of practice.

The Intersection of Divorce, Custody, Criminal Law and Family Law in RI

The intersection between family law, criminal  law  and divorce in RI

Overview

A Rhode Island criminal domestic misdemeanor or felony case is often intertwined with complex issues concerning family law, child custody, child support, visitation, restraining orders and divorce. A Rhode Island Family law case is often intertwined with criminal law issues. In some cases there are three cases or more proceeding at the same time: a criminal case, a complaint protection from abuse and a divorce.  There also may be a dcyf, child support case, paternity  proceeding or juvenile proceeding pending. This article applies to misdemeanor criminal charges.

A misdemeanor is considered domestic if it involves certain family member, a spouse, girlfriend or boyfriend.  An assault, disorderly conduct, larceny and other criminal charges can all be charged as domestic offenses. Therefore, if there is a domestic violence component to an assault case, the case will be charged as a domestic assault rather than just an assault.

In the event that a person is charged with a domestic offense, a no contact order will issue. The No Contact order will preclude the accused from having any contact with the victim, his or her spouse or significant other.

A no contact order often reeks havok upon the family unit especially when the parties are married or have children. The police will remove the accused from his or her residence. This removal creates a whole new set of challenges for the family. In many instances, the accused is the sole support for the family. Also, there are often visitation issues that arise immediately. The accused often wants to visit his or her children.

The victim usually has her own opinions which may or may not include the desire for the accused to visit with the children. Furthermore, the accused often has the need and desire to obtain his or her personal belongings such as clothes, toiletries, tools, work items etc.Also, the victim may seek another restraining order from the family Court or District Court and may seek child support.

This article addresses the above mentioned complex  issues and answers the following questions:

Should I get a  Rhode Island Criminal  lawyer  or Divorce lawyer to represent me in a criminal law or divorce case in Rhode Island?

An attorney is needed but not required. The old adage is that a person who acts as their own attorney has a fool for a client. Lawyers / attorneys are familiar with the legal process, the law , the judges and the legal system. In a criminal case you have a right to a free criminal lawyer from the Public Defender if you meet the income and eligibility requirements.

What is the difference between a domestic offense and a non domestic offense?

Any offense which is charged as a domestic offense is more serious than the same charge charged as a non domestic offense. Under Rhode Island (RI) law, a person who is found guilty of a domestic offense or who takes a nolo contendere plea with a  sentence of filing, probation or suspended sentence must take batterers intervention classes. If found guilty of a domestic offense or if there is a plea bargain then a no contact order will enter automatically unless the victim is able to drop the no contact order.

A second conviction for a domestic offense in Rhode Island may lead to a minimum ten days at the aci! A third conviction for a domestic offense may be charged as a felony. Keep in mind that not all plea agreements constitute a criminal conviction. In RI any sentence with a suspended sentence,  guilty finding, plea of guilty, fine or period of incarceration constitutes a criminal conviction. A nolo contendere plea  with probation or filing with court costs does not constitute a conviction in Rhode island! A domestic conviction also will looks worse then a non domestic conviction on the accused’s record when seeking employment opportunities.

Also, sentencing is usually more harsh for domestic cases then a non domestic offense. Furthermore, in domestic cases a one year filing cannot be expunged at the end of the year. There is an additional two year waiting period to expunge a domestic filing. Please see my other article concerning Rhode Island misdemeanors for a comprehensive explanation of a one year filing in Rhode Island.

Upon entering a plea or being found guilty of a crime with domestic implications then the defendant will be ordered to complete a batterer’s intervention program which involves attending classes. The defendant can also be ordered to pay restitution to the victim if applicable and obtain substance abuse or mental health counseling. Failure to attend the Batterers classes, failure to pay restitution or failure to attend counseling could be considered a violation of probation, suspended sentence or a filing.

What is a no contact order?

In Rhode Island, A “no contact order” means that the defendant is precluded from having any contact and or communication with the victim or the person under the protection of the no contact order. This includes but is not limited to letters, emails, text messages or messages delivered through a third party.

In other words if a person is under a no contact order and sees the victim in public they must leave the area immediately and not acknowledge the victims existence. A person cannot even say “hi” if they walk by the victim by chance on the street.

A person can be arrested under Rhode Island law for violating a no contact order even if the victim initiates the contact and calls the defendant. A person can be charged with breaking a no contact order even if invited by his wife to come back to the marital home.

Dropping / dismissing the no contact order

The police cannot drop a no contact order. Only a judge can drop a no contact order. The victim can attempt to drop the no contact order at the arraignment. Prior to approaching the judge at the arraignment, the victim must speak with the domestic violence counselor at Court. The judge may dismiss the no contact order at the arraignment.

However, in the event that the alleged abuse is severe or there is a documented history of abuse then the judge may refuse to drop the no contact order. The no contact order may not be dropped by the judge if the victim states that she is still afraid of the accused.  It is much easier to drop the no contact order  at the pretrial hearing then it is to drop it at the arraignment. Some judges are hesitant to drop the no contact order at the arraignment. The judge will typically ask the police who are present at the arraignment whether they have any objections to the no contact order being dropped

Can the victim dismiss the no contact order after the arraignment but before the pretrial conference?

In the event that the victim wants to drop the no contact order after the arraignment but before the pretrial the victim can go to the clerk and ask that the file be brought in front of the judge. After conferring with the domestic advocate the judge will rule on whether the no contact order will be dropped.

Can the no contact order be dropped at the pretrial conference?

The victim who wants to cancel the no contact order will have another opporunity at the pretrial conference. The pretrial conference is typically scheduled a couple of weeks after the arraignment. At the pretrial conference, the victim can approach the judge and again seek to have the no contact order dropped

Will the criminal judge in District Court resolve visitation or custody issues?

No.

The criminal Court will not get involved in any family related issues such as child custody, child support, alimony ,paternity, relocation out of state, equitable division of marital property, visitation, payment of marital bills, payment of mortgage, payment of credit cards, disposition of the marital real estate, etc.  Those issues are the province of the Rhode Island Family Court not the District court !The District Court is where criminal  misdemeanor cases are heard.

The Court has the power to order restitution to the victim for any actual damages suffered by the victim as a result of the crime such as destruction of property, medical bills, stolen funds etc.

The District Court in a criminal case cannot be involved in setting visitation or dealing with issues concerning divorce or custody of the minor children. The Rhode Island Family Court is the proper Forum for dealing with issues related to divorce and child custody such as: child support, visitation, financial restraining orders and issues concerning marital property, marital real estate and debt.

Obtaining personal belongings (property) when there is a no contact order.

There are several proper ways for an accused to obtain his / her personal belongings when there is a no contact order in effect. Personal belongings usually consists of personal property such as clothes, sneakers, uniforms, personal effects etc.  The accused can contact the police department where the victim resides and seek to make arrangements to pick up personal belongings. The police will often escort the person to the home. The downside of this arrangement is that the police often are in a rush and enforce a severe draconian time limit.

If the accused has a private attorney, he can contact the victims attorney who can contact the victim to make arrangements . This can have its pitfalls because  the victim may be hostile  or  the victim may have no interest in negotiating

The accused can attempt to arrange to get his belongings through a third party. The accused must be careful not to violate the no contact order.

When does a no contact order in Rhode Island (RI) expire?

A no contact order expires when the sentence period is finished. A no contact order also expires if the case is dismissed or the defendant is found not guilty. The no contact order expires if the judge terminates the no contact order at the request of the victim.

Be careful because there may also be another restraining order issued as a result of a divorce or Family Court matter or a District Court restraining order!

What happens if a person on bail, probation, filing or suspended sentence violates a no contact order?

A person who is on probation, bail or a probation attached to a suspended sentence must be even more vigilante in order to not violate the no contact order.

A violation of a no contact order is a crime in itself which is also a violation of the conditions of probation, filing or bail . A person on probation or bail can be held at the ACI if they are accused of violating a no-contact order. For example, if a person is on probation or bail, a single phone call made by the defendant to a victim under the protection of a no contact order probably means a minimum of ten 10 days in jail at the ACI.

A probationary period  or filing period is a time of great risk for a defendant and a defendant must be careful to stay out of trouble! A person must be even more vigilant if there is a no contact order, order protection from Abuse from The Rhode Island Family Court or restraining order in effect. A violation of a no contact order or a Family Court restraining order is a violation of probation.

A person with a suspended or stayed sentence faces the most potential risk regarding violation of probation in RI.  As a result of a probation violation of violating a no contact order,  a person with a suspended sentence could be ordered to serve the remainder of the suspended sentence at the adult correctional institution (ACI)

For Example, a person with probation may get themselves deeper into trouble when they resume communications or contact with their wife or girlfriend despite the fact that a no contact order is in effect. If there is an argument or allegations of domestic assault or abuse, the police may arrest the person and hold him/her at the aci as a probation violator as well as new charges for domestic assault and violation of a no contact order or restraining order.

Rhode Island Family Court restraining orders: (1) Complaints Protection from Abuse and (2) ‘Civil restraining orders’ and how they relate to criminal law

A defendant must Be careful! There may be a separate order protection from abuse restraining order that issued from Rhode Island Family Court as a result of a complaint protection from abuse. The Family Court has jurisdiction to issue  an  order protection from abuse restraining orders for up to three (3) years. The Family Court can issue restraining orders for persons who are married, are divorced, are family members or who have children in common as well as other jurisdiction set forth in the statute. There may also be a restraining order issued by a Court of another state or another Court

A protection from abuse case is not a criminal case. Violation of Family Court Complaint protection from Abuse restraining order is a crime in itself and also may constitute a violation of probation, bail and violation of conditions of a filing.

There are two types of Family Court restraining orders, “Complaint Protection from Abuse” and a civil restraining order. Both of these types of Restraining orders can be in addition to divorce proceedings.

Is Violating a Family Court restraining order which is not an order protection from abuse a crime?

No. A violation of a  Family Court restraining order which is not a Complaint Protection from Abuse is  not a crime. Violation of this type of order is punishable by contempt. However, If the restraining order contains language that violation of the order is a crime then there might be criminal implications.

Civil restraining orders are not nearly as effective as Complaint Protection from Abuse restraining orders. Civil Restraining orders are typically part of a divorce.

In a complaint protection from abuse case in Rhode Island can the Court get involved in Child custody, visitation and child support.

Yes. In a Complaint Protection from Abuse case, the Family Court can award temporary child support, visitation, and temporary custody of the children. The Court can also award visitation and in some instances may order supervised visitation. The Court can order that the Defendant vacate forthwith and remain out of the household. The Court can also order that a person take batterers classes or drug and alcohol counseling. The Court can order drug and alcohol testing. The Court can also order the Defendant to surrender possession of all firearms / guns to the Police department.

Is a violation of a Rhode Island District Court Restraining order a crime?

Yes.

When should a Restraining orders  be filed in District Court?

If the restraining order is against a current boyfriend or girlfriend or an ex boyfriend or girlfriend who you had a substantive dating relationship within the prior year but you have no child with, then Rhode Island District Court is the proper Forum.

If you have a child with your current or ex boyfriend/ girlfriend then the restraining order should be filed in the Family Court.  A restraining order against a current roommate can be filed in District Court.

RI Superior Court Restraining orders:

If you are seeking a restraining order against a prior friend, neighbor, landlord or anyone else then the restraining order must be filed in Superior Court. Violation of a Superior Court restraining order does not constitute a crime. Violation of a Superior Court Restraining Order is punishable by contempt which could potentially lead to a period of incarceration.

What is the difference between a restraining order and a no contact order?

A no Contact order is an order issued as a result of a criminal charge. A no Contact order issues at an arraignment either at the police station or at Court. Violation of a no contact order is a crime in itself and may constitute a violation of Probation or a filing. A no contact order expires when the case is over (dismissal or not guilty finding) and at the end of any probation, filing or suspended sentence.

A Restraining order stays in effect until the date designated on the restraining order. A Restraining order will stay in effect even if the defendant is found not guilty or the criminal case is dismissed.

If there is a no contact order protecting me should I also obtain a restraining order ?

It Depends. A no contact order expires when a case is dismissed; a person is found not guilty or after any sentence expires.

The No Contact order will expire when a probationary period or filing or suspended sentence is over. If you feel you need protection in case the no contact order expires and are in fear of the person then you may consider seeking a restraining order in addition to the no contact order.

If there are issues concerning child support and visitation then you may want to seek a restraining order in addition to a no contact order!

Resolving issues concerning custody and visitation of children as well as divorce and family related matters when a criminal case is pending:

If your spouse or girlfriend or boyfriend is preventing you from visiting or talking to your child as a result of a criminal case or no contact order then you may need to file for divorce or a separate action for custody or visitation in Family Court.

The Family Court can set visitation and child support as part of a Complaint protection from abuse restraining order. In some instances when domestic violence is alleged or there are issues concerning alcohol, drug abuse or mental health then the Family Court may order supervised visitations. These Supervised visitations may occur at the Providence Family Court or may be supervised by a third party.

Can the defendant testify in The Complaint protection from abuse hearing when he or she has a pending criminal charge?

This is an important determination for the defendant. The defendant must consult with his / her attorney and weigh the pros and cons of testifying in the hearing. A defendant in a criminal case has the right to take the Fifth Amendment and not testify in the case. A defendant in a complaint protection from abuse case must be careful because any testimony in the abuse case can be used against the person in the criminal case. The defendant can seek to continue the abuse case until the criminal case is resolved.

What County in the Rhode Island Court system will criminal law and divorce cases be heard?

Al the counties in Rhode Island (Providence, Kent, Newport and Washington County) follow the same general rules and procedures.   Providence County includes East Providence, Providence, Cranston, Cumberland, Barrington, Bristol, North Smithfield, woonsocket and other towns and cities. Kent County includes Warwick &  North kingston, East Greenwich as well as other towns. Newport County includes  Newport, Middletown & Portsmouth. Washington County includes South Kingstown, Wakefield etc.

Rhode Island Attorneys legal Notice per  RI Rules of Professional Responsibility:

The Rhode Island Supreme Court licenses all lawyers  in the general practice of law, but does not license or certify any lawyer / attorney as an expert or specialist in any field of practice.

(ArticlesBase SC #1227446)

david slepkow
david slepkowAbout the Author:

David Slepkow is a Rhode Island lawyer concentrating in divorce, family law, criminal law, restraining orders, child support, custody and visitation. David has been practicing for over 15 years and is licensed in Rhode Island , Massachusetts and Federal Court. Free initial consultations. Credit Cards Accepted.

Rhode Island Criminal Misdemeanor Law

What is a Rhode Island Criminal Misdemeanor?

A misdemeanor is any offense punishable by up to one year in Jail. Typical misdemeanors are: driving under the influence of alcohol / drunk driving (dui / dwi), shoplifting, domestic assault, Second (2nd) offense refusal to take the breathalyzer, driving on a suspended license, writing bad checks, domestic vandalism, simple assault and battery, disorderly conduct, domestic vandalism etc.

There are different rules that apply to driving with suspended licenses and this article does not fully address those provisions.

It is important that this criminal law article be used for informational purposes only and not as a substitute for seeking legal advice from a Rhode island Criminal Defense Lawyer. It is a very bad idea for a person to represent themselves (pro-se) in a criminal case. Please note that this article only applies to Rhode Island misdemeanor offenses and does not apply to any other states!

After an arrest will the accused be released from police custody?

If a person is arrested for a criminal misdemeanor in Rhode Island (RI) there are several potential scenarios. The police could hold the accused and bring him to Court for an arraignment in District Court in the morning. The police also could call a justice of the peace / Bail Commissioner who could arraign the accused at the police station and release the person. The bail commissioner could also set bail in order for the person to be released.

It is usually not advisable for a person to give a statement to the police without a Rhode Island (RI) Criminal Lawyer / attorney. However, there are exceptions to every rule!

The accused who is arraigned by the justice of the peace must still attend a more formal arraignment in District Court after he / she is released from police custody.

BAIL AND ARRAIGNMENT

What is a criminal arraignment? Will I be released on bail? Should I take a plea at an arrainment?

The formal arraignment is the court hearing where a criminal defendant either pleads not guilty, or nolo contendere to the criminal charges. These pleas are described in detail below.

Should I take a plea deal at an arraignment without a  Rhode Island Criminal Defense lawyer?

NO.! It is usually a very bad idea for a person to plea nolo contendere without an attorney at the arraignment. However, there are exceptions to this rule especially if the person will be held as a probation or bail violator. It is usually very strongly advisable that the defendant says not guilty and retains a Rhode Island criminal lawyer. If the accused cannot afford a private criminal attorney they should go to the Rhode Island Public Defender’s office.

What is a criminal arraignment? Will I be released on bail? Should I take a plea at an arraignment?

If the accused pleads nolo at the arraignment they will be sentenced to a filing, probation , suspended sentence or jail time. Usually, the accused will work out a plea agreement with the police officer prior to pleading nolo contendere.

What is personal recognizance?

At the arraignment in District Court, the person will typically be released on bail after the person pleads not guilty. An accused should hire a Rhode Island criminal attorney to represent him/ her at an arraignment. For minor misdemeanor offenses, bail is usually personal recognizance which means the person does not have to come up with any actual funds. A defendant released on personal recognizance, has to promise that they will attend court for future hearings and / or trial. Personal recognizance is designated as an amount of funds. The accused does not actually pay any money! However, If the person fails to attend court in the future the accused will owe that amount of money to the State of Rhode Island.

What is cash bail?

If the Rhode Island (RI ) District Court judge orders cash bail then the accused must pay that amount in cash to be released. If it is cash bail than the defendant cannot post property.

What is bail with surety?

If the person is repeat criminal offender, the allegations are particularly bad, the person has a history of not attending court or for other reasons, then the court could set bail with surety. This means that the person only has to pay 10 percent of that amount or post property valued at full amount. If a person can not come up with ten percent then they can hire a bail bondsman who will post that amount for a fee. a Bail bondsman’s fee is usually reasonable. If the person attends all Court dates then they will get that money back at the end of the case.

What happens at an arraignment if I am already on bail, on a one year filing or on probation?

If the person arrested was out on bail for a previous offense, is on probation, is in the midst of a one year filing, suspended sentence or deferred sentence than the judge can hold the person as a”violator” pending a hearing. The judge can refuse to set bail and hold a person as a violator at the aci for ten business days which could be up to 14 days.

There will be a hearing 10 days later in which the person will be accused of violating probation or bail and also stand trial on the new charges. Please see below for more information

What is the most advisable plea at an arraignment and what happens next?

At the arraignment, A person should almost always say not guilty and hire an attorney. If a person cannot afford a lawyer then the person should go to the Public Defender. After the arraignment the matter will be set for a pretrial conference a couple of weeks later. In some very limited circumstances a person can work out a plea deal at the arraignment. It is usually a very bad idea for a person to enter into a plea agreement without an attorney.

PRETRIAL CONFERENCE

What happens at the pretrial conference?

At the pretrial conference a person canchange their plea from not guilty to nolo contendere if they agree to the sentence offered by the prosecutor after meeting with the prosecutor and or the judge and after finding out what the prosecutor is offering for a a sentence. A defendant can negotiate with the prosecutor through their lawyer. If a plea agreement cannot be worked out at the pretrial conferences the matter will be set for trial. The matter also could be scheduled for motions prior to the trial if motions are requested.

A person should never change their plea from not guilty to nolo contendere or guilty without a plea deal from the prosecutor.

PLEAS

What types of pleas are there in Rhode Island?

In Rhode Island, a defendant can enter one of four pleas: guilty, not guilty, nolo contendere or an “alfred plea”.

Guilty and Not Guilty Pleas

The pleas of guilty and not guilty are obvious. If the plea is not guilty then the matter will be scheduled for a trial on the merits in which the prosecution must prove beyond a reasonable doubt that the person is guilty of the alleged offense. The person will be presumed innocent and it is the prosecutions burden to prove that the person is guilty. Usually, it is a very very bad idea to take a guilty plea! Guilty pleas or a finding of guilt after a trial is always a criminal conviction in Rhode Island.

Nolo Contendere Plea

Nolo contendere means a person is not contesting the charges. When a defendant takes a nolo contendere plea in Rhode island, the defendant is indicting that he does not want to contest the charges but is also essentially admitting to the charges.

What is the difference between a guilty plea and a nolo contendere plea in Rhode Island?

There is a huge difference! A guilty plea is always a criminal conviction under Rhode Island law. A criminal conviction has major negative implications especially when a person applies for employment. A plea of nolo contendere may not constitute a criminal conviction in Rhode Island. A plea of nolo contendere is only a conviction in Rhode Island if there is a sentence of confinement (such as the ACI or home confinement), a suspended sentence or a fine imposed.

For example, A plea of nolo contendere with a sentence of probation and a contribution to the violent crimes indemnity fund or court costs will not constitute a conviction under Rhode Island law! For example, A plea of nolo contendere with a sentence of a filing and a contribution to the violent crimes indemnity fund (vcif) will not constitute a conviction under Rhode Island law.

However, anything with a fine attached to it will be a conviction under Rhode Island law. Therefore, it is important that the defendant gets either no fine or a contribution to the victims fund or court costs rather then a fine.

All misdemeanor plea agreements in Rhode lsland should be nolo contendere with court costs or a contribution towards the victims indemnity fund rather then guilty pleas!

Alfred Pleas

Alfred Pleas are strongly disfavored by judges in Rhode Island (RI) and are difficult to get. Alfred pleas derive from a United States Supreme Court case. In an Alfred plea, a defendant will admit that the state has sufficient evidence to convict him or her if the case went to trial but will not admit to anything.

Guilty Finding after Trial and appeals de novo

If the defendant is found guilty after trial the sentence will constitute a conviction. If a person is found guilty at trial in district court they can appeal de novo (of new) to the Superior Court and the conviction will be erased and the case will essentially start all over again in the Superior Court.

Obviously, the defendants best result is either a dismissal by the prosecution or an acquittal.

APPEAL

Can I appeal if I am found Guilty after Trial?

A defendant has two days to file an appeal of a guilty finding after trial or appeal a plea agreement that he / she is unhappy with. In the Superior Court appeal, the defendant has a right to a trial by jury. Whereas, in The District Court a person waives their right to a trial by jury but in exchange for their waiver of their right to a trial by jury has the right to appeal any guilty finding de novo (of new) to the Superior Court. A person charged with a misdemeanor essentially has two bites of the apple so to speak. A defendant can attempt to win at a judge decided trial in District Court and then if they lose they can do it all over again with a jury trial in Superior Court.

PENALTIES AND SENTENCES

What is a “filing” in Rhode Island?

If the defendant takes a not guilty plea or a nolo contendere plea then the case will be “filed” for a year. This is commonly called a “filing”. If the defendant does not get arrested or get in other trouble and complies with the conditions of the filing during the one year period then the case is dismissed and can be easily expunged from a person’s record after the year.

What types of filing are there in Rhode Island

There are two types of filings, not guilty filings and nolo contendere filings. A not Guilty filing is when the defendant maintains his innocence and the case if filed for a year. A not guilty filing is not usually allowed by Judges in the District Court. Not Guilty filings are extremely rare in the District Court. Some judges will not allow not guilty filings as a matter of policy. Not guilty filings are very beneficial to the defendant as the best case scenario short of a dismissal or not guilty finding because if the person is accused of a new crime or violating their filing the state will need to still prove their underlying case.

A nolo contendere filing is when the defendant admits to guilt and the case is filed for a year. The vast majority of filings are nolo contedere filings! A major difference between a not guilty filing and a nolo contendere filing is when a person is violated for a not guilty filing then the state / prosecution must prove guilt at that time. Whereas, if a person is violated for a nolo contendere filing, the judge simply must impose a sentence because the person has already admitted guilt to that offense.

If the person violates his filing by not complying with the conditions of the filing then the persons filing can be revoked by the Court. If a person takes a nolo contendere filing and gets into further trouble, violates the conditions of the filing or is arrested on a new offense then the person will be hailed back into court to be sentenced on the filing. (unless the filing was a not guilty filing which means the prosecution must prove the defendants guilt) There are various conditions that can be put on a filing inluding alcohol and drug counseling, domestic violence counseling or classes, restitution, no contact with the victim and community service.

Violation of conditions of filing

Please note, that a person who has a filing can be held for up to ten busines days at the ACI if arrested for a new charge / crime. A person who is on a filing must be very careful that he / she stays out of troubl.

If the person is violated from the terms and conditions of the filing then hypothetically the filing could become a conviction because that person has already admitted to the charges by pleading nolo contendere and giving up his right to contest the charges. Court costs will be imposed if there is a nolo contendere filing in a criminal case.

What implications are there for domestic violence offenses in Rhode Island?

If the underlying charge is for a domestic offense such as domestic assault / domestic vandalism or domestic disorderly conduct then the defendant will be ordered to have no contact with his wife girlfriend or the victim as the case may be. If the defendant violates the no contact order then the defendant will be charged with a separate criminal offense of violating a no contact order as well as violating the conditions of the filing or probation, as a result of the communication.

Probation in Rhode Island

If a person recieves probation then they will need to abide by the conditions of the probation and agree to keep the peace and be of good behavior. If a person violates his probation by being arrested for a new crime then the person may be held in Jail at the ACI as a probation violater. After ten days a person has the right to a hearing. At the probation violation hearing, the prosecutor must only convince the judge so that the judge is “reasonably satisfied” that the person violated the probation by committing the new offense. Also the person will be prosecuted for the new offense as a separate charge from violating the probation. There is a good chance that if a person is violated for his probation that the probation which was originally not a conviction will now ripen into a conviction.

A probationary period is a time of great risk for a defendant and a defendant must be careful to stay out of trouble!

A person can also be violated for his probation for various infractions that may not be criminal acts but that violate the conditions of probation such as not keeping probation informed of new adresses, leaving the state without permission, not paying court costs or restitution, not properly reporting to the probation officer, etc. When a person is under probation in Rhode Island he or she is essentially is in a contract with the state to keep the peace, be of good behavior and comply with the conditions and rules of probation.

What is a probation with a suspended sentence in Rhode Island?

If the charges are serious or the person has a lengthy criminal record of has already been placed on probation before then in addition to the probation, the judge may attach a suspended sentence. A person who has a suspended sentence is in a period of extreme risk because a new offense could lead to substantial jail time!

A suspended sentence is always a conviction under Rhode Island law. A person with probation and a suspended sentence attached will not spend anytime in prison unless the person violates the conditions of his probation as set forth above.

The period of the suspended sentence is the most time that a person could spend in prison if the person violates the conditions of the probation or commits a new offense. If the person violates the probation, the judge could sentence the person up to the amount of time that is suspended. Please note that the person could get additional sentence and or penalties as a result of the new charge. It is in the defendants best interest to have the period of suspended sentence to be as short as possible. The suspended sentence typically is for the same amount of time as the period of probation.

Please note that if the offense is driving on a suspended license there are special rules that apply that are set forth in the statutes.

Most prosecutors and judges believe that each sentence should be more severe then the last. A person’s first minor offense is likely to lead to only a filing which is the lowest form of penalty in Rhode Island. A person usually will only be allowed one filing.

It is important that this criminal law article be used for informational purposes only and not as a substitute for seeking legal advice from a Rhode Island lawyer.

NO CONTACT ORDERS

No Contact Orders in Rhode Island explained

A “no contact order” means that the defendant is precluded from having any contact and or communication with the victim or the person under the protection of the no contact order. This includes but is not limited to letters, emails, text messages or messages delivered through a third party.

In other words if a person is under a no contact order and sees the victim in public they must leave the area immediately and not acknowledge the victims existence. A person cannot even say “hi” if they walk by the victim by chance on the street.

Be very careful! A person can be arrested for violating a no contact order even if the victim initiates the contact and calls the defedant. A person can be charged with breaking a no contact order even if invited by his wife to come back to the marital home.

Even if the victim tells you that the no contact order has been dropped, do not take the victims word for it. You must see the piece of paper signed by the judge dismissing the no contact order before any contact or communication is initiated. A no contact order expires when the sentence period is finished. However, be careful because there may also be a restraining order issued as a reult of a divorce or family court matter or a District Court restraining order.

A person who is on probation or a probation attached to a suspended sentence must be even more vigilante in order to not violate the no contact order. For example, a single phone call made by the defendant to a victim under the protection of a no contact order probably means a minimum of ten 10 days in jail at the ACI. We are not talking about the local town jail but the ACI.

DUI / Drunk Driving charges

In Rhode Island, any plea to drunk driving, driving under the influence, DUI/ DWI is a conviction under Rhode Island law. A breathalyzer refusal plea of guilty or “admitting to sufficient facts” is not a criminal conviction because a breathalyzer refusal is a civil case.

EXPUNGEMENT IN RI

Rhode Island Liberal Expungement Policy & Background Information:

Rhode Island (RI) has some of the most liberal expungement laws in the United States. If you are eligible for an expungement, why not get those menacing and harmful criminal records erased, sealed or destroyed! If a criminal record is expunged you are legally allowed to tell others that you have no record.

This article is an in depth and in detail explanation of Expungement law in RI as of August 2008. Expungement law and policy is in a state of flux. The legislature is attempting to make expungement policy even more liberal, while the governor is trying to make it more difficult to expunge records. Even the Supreme Court of Rhode Island (RI) has recently weighed in on expungment matters. These three branches of government are in disagreement concerning expungement policy.

In order to get a Criminal record expunged in Rhode Island, a motion must be filed and a Court hearing is required. You should contact a Rhode Island Criminal Law Expungement Attorney / Lawyer. It is not advisably to file an expungement without a RI lawyer.

Expungement of Dismissed records:

The general rule is that dismissed criminal charges (48a) can always be expunged unless the person has a prior felony conviction. This portion of the statute uses the standard definition of a conviction- a fine, suspended sentence or jail.

Should dismissed charges be expunged

Many people don’t realize that records of alleged crimes that are dismissed should be expunged / erased. Even though the case was dismissed, there is still an indication on the Rhode Island criminal computer records and on your Bureau of Criminal Identification (BCI) report that you were charged with the criminal offense.

The public can easily view the dismissed records and other rhode Island criminal records online by googling “rhode island criminal records”-Many people will assume that you did something wrong even if the case was dismissed. Some people will assume that you just “got off on a technicality” or that you are a bad character by the very fact that you were charged. A criminal record could effect your ability to secure employment and often is required to be disclosed on an employment application. A criminal record could also effect your ability to obtain government benefits or a employee promotion.

Are there dismissed charges that cannot be expunged immediately?

A dismissed charge may not be able to be expunged if the related charges cannot be expunged. For example, if you were charged with three offenses related to the same incident and 2 were dismissed but the third you recieved a sentence of probation. You would have to wait until the probation charge could be expunged until the other dismissed charges could also be expunged. The reason for this is because you cannot destroy portions of a file! I believe the primary reason for this rule is because it is logistically impossible to expunge a charge when there are other records in a related incident that cannot be expunged.

For example, John was charged with domestic assault, failure to relinquish telephone and disorderly conduct arising out of a domestic dispute with his wife related to their pending divorce. John received probation on the disorderly conduct. The assault and failure to relinquish phone charges were dismissed. John would not be allowed to expunge the two dismissed charges and would need to wait five years after completion of the probation to dismiss all the charges.

Expungement of Not Guilty findings.

The general rule is that not guilty findings after trial by a judge or jury can be expunged. However, if the not guilty finding relates out of the same incident for another charge which cannot be expunged then the not guilty finding cannot be expunged.-Pursuant to Rhode Island Law the following types of cases can always be expunged: Dismissals, No information, Not Guilty.

Expungement of one year filings

A filing is a penalty that is typically offered for first time offenders for relatively minor misdemeanors. A filing is the lowest form of penalty available and is always better than probation for an accused. A filing is when the case is put aside for a year and if the person stays out of trouble for a year then the case is eligible to be expunged and destroyed at the end of the year.

A domestic filing such as domestic assault, domestic failure to relinquish telephone or domestic disorderly conduct cannot be expunged for three years. A domestic offense involves the victim as a wife, family member or someone who the accused has been in a substantive dating relationship with.

If a person gets in further trouble during the filing period then the person may be “violated” and the person sentenced again for violating the filing. A person must be very careful to stay out of trouble during the filing period. If the person is charged with a new crime, the person will be brought before the Court as a violator as well as charged with a new crime.

At the initial arraignment, a person with a filing will probably be violated and can be held for 10 days in jail without a hearing.-If the person takes a plea deal on the violation of the filing or probation and a plea agreement on the new charge then neither of the charges can be exunged.

If a person is not violated during the filing period then a filing can be expunged even if there are other offenses after the filing.

Be careful, do not forget to have your filing expunged at the end of the year! It is not automatic. A certified copy of the expungement order must also be sent to the Rhode Island Attorney General ‘s office, the Rhode Island State Police and the local police department that pursued the criminal charge.Remember, Under RI Criminal Law, A plea of nolo contendere with a filing and no fine is never a conviction.

Expungement or convictions, suspended sentences, deferred sentences, jail sentences or probation

A misdemeanor or felony conviction is any sentence with a fine, suspended sentence or period of incarceration. Even though probation or a deferred sentence do not constitute convictions under Rhode Island Law they are treated the same way as convictions for expungement purposes.

A misdemeanor case with the following sentence can be expunged five years after the completion of the sentence or probationary period: probation, suspended sentence, deferred sentence, stayed sentence, fine, jail.

A felony conviction, suspended sentence or probation / deferred sentence can be expunged ten years after the completion of the sentence or probationary period. Under the current state of Rhode Island law you cannot have any conviction, suspended sentence , fine or probation expunged if you have another conviction, suspended sentence , fine or probation on your record.

Expungement of felony deferred sentences

Pursuant to a recent supreme Court case, deferred sentences are treated the same way as convictions for expungement purposes. If a person receives a 5 year deferred sentence on a felony charge, the person is not eligible to have the charge expunged until 10 years after the deferred sentence has concluded.

This new rule is very unfair because judges and attorneys have been advising defendants that after a 5 year deferred sentence that they would be able to get the record expunged. Now the Supreme Court is pulling the rug out from underneath people who were promised that their deferred sentence could be expunged when they finished their sentence. Please note that the Rhode Island legislature was recently attempting to make it easier to expunge deferred sentences but this legislation was recently veteod by the governor.

Crimes of Violence issues

Certain crimes of violence can never be expunged and R.I.G.L 12-1.3-1. states:-”Crime of violence” includes 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.

Noticeable absent from the definition of crimes of violence is “assault.” It could be argued that assault is not a crime of violence as it relates to expungement. If the legislature intended that assault could not be expunged they would have included it in the list.

Legal Notice per RI Rules of Professional Responsibility:

The Rhode Island Supreme Court licenses all lawyers and attorneys in the general practice of law, but does not license or certify any lawyer/ attorney as an expert or specialist in any field of practice.

David Slepkow is a Rhode Island Criminal Defense lawyer concentrating in criminal law, dui / dwi, breathalyzer refusals, restrianing orders/ no contact orders, divorce, family law, child custody / support / visitation  and personal injury.

David Slepkow is a Rhode Island lawyer concentrating in Family Law. David has been practicing for over 9 years and is licensed in rhode Island , Massachusetts and Federal Court.

Should I refuse the Breathalyzer? – RI DUI & DWI Lawyer

1) Should I refuse a Breathalyzer test in Rhode Island?

The answer is – “it depends”. There is no good definitive answer to this question in Rhode Island. The only proper answer is it depends on the circumstances. If you refuse the Breathalyzer test, your license and/or privilege to drive in Rhode Island will be automatically suspended after the arraignment but prior to any hearing or disposition of the matter on the merits. If you refuse a Breathalyzer test, the chances of winning are relatively slim.

In a Breathalyzer case, the state must only prove that they had probable cause to arrest you and reasonable suspicion to believe that you are operating a motor vehicle in Rhode Island while intoxicated, that you were properly read your rights, and that you did in fact refuse the Breathalyzer. Even if you refuse, the state will typically still charge you with criminal DUI based on the officer(s) observations. Many, but not all, town and cities will dismiss the criminal observation case if you agree to take a plea for minimum sanctions (at least 6 months) at the refusal hearing.

If you lose the Breathalyzer case, for a first offense within five years, the penalty will be six months to twelve months loss of license as well as fines and driver retraining and community service. You will also be required to obtain expensive insurance on your automobile. The advantages of a refusal over a criminal case is that the penalty for a first refusal is a civil violation that will not be a criminal conviction on your record. (Please note that a 2nd offense refusal in Rhode Island is now a criminal offense!)

If you take the Breathalyzer test and fail it, you will be charged with a criminal DUI. These cases are much more difficult for the prosecution to prove than a Breathalyzer refusal. Your chances of winning a criminal DUI case is much greater than a refusal case! If you take the Breathalyzer, you will not automatically lose your license at the arraignment (as you would in a refusal case). You will only lose your license if you are convicted. In other words, you can drive while the case is proceeding. If convicted in a criminal DUI case first offense, you will lose your license anywhere between 3 months to 6 months.

If convicted, you will also have to take driving classes, do community service and obtain expensive insurance for your vehicle. In a criminal DUI, the state must not only prove probable cause to make the arrest, they must prove beyond a reasonable doubt that you were too intoxicated to operate a motor vehicle in the State of Rhode Island as well as proving that you were properly read your rights and that other legal requirements were met. If you lose the criminal DUI case, you will have a criminal conviction on your record. A criminal conviction can severely hurt employment opportunities and in some case lead to loss of a job. Also, a second or third conviction for DUI/DWI will mean mandatory jail time.

2) Are there any bright line rules in Rhode Island?

a) Yes. If you are absolutely positive you will pass, take the Breathalyzer test.

b) If someone is injured in an accident – refuse the Breathalyzer.

c) If you already have a criminal DUI within the past 5 years, then you must refuse because you face mandatory jail time.

d) If you are in a profession in which a criminal conviction may hurt your career or subject you to professional discipline, i.e. lawyer, politician, teacher, then you probably should refuse.

If the bright line rules don’t apply, then what?

Use a balancing test. You need to balance your need to drive your automobile versus what effect a criminal conviction will have on your life. If you absolutely need your license for your job and a criminal conviction will not affect your life, then take the test if none of the bright line rules (such as an injury) apply.

If you take the Breathalyzer test, you will not automatically lose your license and can drive while the criminal case is pending and will only lose your license if you lose the case. Your chances of winning the criminal case and retaining your license is much greater than a refusal case. However, the flip side is that if you lose the criminal case, then you will have a conviction on your record and minimum jail potential for a second offense.

3) Does Rhode Island allow a person to drive for work after their license is suspended for DWI or refusal?

No. There is no exception allowing a person to use their vehicle for work purposes when their license is suspended.

Rhode Island Attorneys legal Notice per RI Rules of Professional Responsibility:

The Rhode Island Supreme Court licenses all lawyers in the general practice of law, but does not license or certify any lawyer or attorney as an expert or specialist in any field of practice.

Plea Agreements – Sentencing & Convictions in Rhode Island

A misdemeanor is any offense punishable by up to one year in Jail. Typical misdemeanors are: driving under the influence of alcohol / drunk driving (dui / dwi), shoplifting, domestic assault, Second (2nd) offense refusal to take the breathalyzer, driving on a suspended license, writing bad checks, domestic vandalism, simple assault and battery, domestic disorderly, reckless driving, disorderly conduct, etc. There are different rules that apply to driving with suspended licenses and this article does not fully address those provisions.

If you cannot afford an attorney to represent you then you should contact the Public Defender. The Rhode Island Office of the Public Defender represents eligible clients in criminal law matters (misdemeanors / felony) for no charge. Do not use this article as a substitute for seeking independent legal advice from a lawyer.

It is a very bad idea for a person to represent themselves (pro-se) in a criminal case. Please note that this article only applies to Rhode Island misdemeanor offenses and does not apply to any other states!

At the arraignment, A person should almost always say not guilty and hire an attorney. If a person cannot afford a lawyer then the person should go to the Public Defender. After the arraignment the matter will be set for a pretrial conference a couple of weeks later. In some very limited circumstances a person can work out a plea deal at the arraignment. It is usually a very bad idea for a person to enter into a plea agreement without an attorney.

At the pretrial conference a person can change their plea after meeting with the prosecutor and or the judge and after finding out what the prosecutor is offering for a a sentence. A defendant can negotiate with the prosecutor through their lawyer. If a plea agreement cannot be worked out at the pretrial conferences the matter will be set for trial. The matter also could be scheduled for motions prior to the trial if motions are requested.

A person should never change their plea from not guilty to nolo contendere or guilty without a plea deal from the prosecutor.

In Rhode Island, a defendant can enter one of four pleas: guilty, not guilty, nolo contendere or an “alfred plea”.

Guilty and Not Guilty Pleas

The pleas of guilty and not guilty are obvious. If the plea is not guilty then the matter will be scheduled for a trial on the merits in which the prosecution must prove beyond a reasonable doubt that the person is guilty of the alleged offense. The person will be presumed innocent and it is the prosecutions burden to prove that the person is guilty. Usually, it is a very very bad idea to take a guilty plea! Guilty pleas or a finding of guilt after a trial is always a criminal conviction in Rhode Island.

Nolo Contendere Plea

Nolo contendere means a person is not contesting the charges. When a defendant takes a nolo contendere plea in Rhode island, the defendant is indicting that he does not want to contest the charges but is also essentially admitting to the charges.

What is the difference between a guilty plea and a nolo contendere plea in rhode Island? There is a huge difference! A guilty plea is always a criminal conviction under Rhode Island law. A criminal conviction has major negative implications especially when a person applies for employment. A plea of nolo contendere may not constitute a criminal conviction in Rhode Island. A plea of nolo contendere is only a conviction in Rhode Island if there is a sentence of confinement (such as the ACI or home confinement), a suspended sentence or a fine imposed.

For example, A plea of nolo contendere with a sentence of probation and a contribution to the violent crimes indemnity fund or court costs will not constitute a conviction under Rhode Island law! For example, A plea of nolo contendere with a sentence of a filing and a contribution to the violent crimes indemnity fund (vcif) will not constitute a conviction under Rhode Island law.

However, anything with a fine attached to it will be a conviction under Rhode Island law. Therefore, it is important that the defendant gets either no fine or a contribution to the victims fund or court costs rather then a fine.

All misdeameanor plea agreements in Rhode lsland should be nolo contendere with court costs or a contribution towards the victims indemnity fund rather then guilty pleas!

Alfred Pleas

Alfred Pleas are strongly disfavored by judges in Rhode Island (RI) and are difficult to get. Alfred pleas derive from a United States Supreme Court case. In an Alfred plea, a defendant will admit that the state has sufficient evidence to convict him or her if the case went to trial but will not admit to anything.

DUI / Drunk Driving charges

In Rhode Island, any plea to drunk driving, driving under the influence, DUI/ DWI is a conviction under Rhode Island law. A breathalyzer refusal plea of guilty or “admitting to sufficient facts” is not a criminal conviction because a breathalyzer refusal is a civil case. For more information concerning Rhode Island drunk driving / dui and breathalyzer refusal law please see => http://ezinearticles.com/?Rhode-Island-DUI—DWI-Law-Should-I-Refuse-The-Breathalyzer?&id=486659

Guilty Finding after Trial and appeals de novo

If the defendant is found guilty after trial the sentence will constitute a conviction. If a person is found guilty at trial in district court they can appeal de novo (of new) to the Superior Court and the conviction will be erased and the case will essentially start all over again in the Superior Court.

Obviously, the defendants best result is either a dismissal by the prosecution or an acquittal.
A defendant has five days to file an appeal of a guilty finding after trial or appeal a plea agreement that he / she is unhappy with. In the Superior Court appeal, the defendant has a right to a trial by jury. Whereas, in The District Court a person waives their right to a trial by jury but in exchange for their waiver of their right to a trial by jury has the right to appeal any guilty finding de novo (of new) to the Superior Court. A person charged with a misdemeanor essentially has two bites of the apple so to speak. A defendant can attempt to win at a judge decided trial in District Court and then if they lose they can do it all over again with a jury trial in Superior Court.

What is a “filing” in Rhode Island?

A one year filing is usually only offered by the prosecutor as a penalty for first time offenders. A filing is a penalty that is typically offered for first time offenders for relatively minor misdemeanors. A filing is the lowest form of penalty available and is always better than probation for an accused. A filing is when the case is put aside for a year and if the person stays out of trouble for a year then the case is eligible to be expunged and destroyed at the end of the year.

Be careful, do not forget to have your filing expunged at the end of the year! It is not automatic. A certified copy of the expungement order must also be sent to the Rhode Island Attorney General ‘s office, the Rhode Island State Police and the local police department that pursued the criminal charge. In the event that a person is found guilty after trial, a person could still be sentenced to a one year filing. However, any guilty finding after trial will constitute a conviction. A guilty finding with a penalty of a filing should be appealed to avoid a conviction.

(Expungement is a process in which a person can have certain eligible Rhode Island criminal records expunged off there record. In order to obtain an expungement of a Rhode Island criminal record a person must file a motion to expunge. I strongly advise that you contact me or another Rhode Island criminal law attorney to determine whether a criminal record can be expunged.)

If a one year filing is offered by the prosecutor / city solicitor and is accepted then the case will be “filed” for a year. This is commonly called a “filing”. If the defendant does not get arrested or get in other trouble and complies with the conditions of the filing during the one year period then the case can be easily expunged from a person’s record after the year.

What types of filing are there in Rhode Island

There are two types of filings, not guilty filings and nolo contendere filings. A not Guilty filing is when the defendant maintains his innocence and the case if filed for a year. A not guilty filing is not usually allowed by Judges in the District Court! Not Guilty filings are extremely rare in the District Court. Some judges will not allow not guilty filings as a matter of policy. Not guilty filings are very beneficial to the defendant as the best case scenario short of a dismissal or not guilty finding because if the person is accused of a new crime or violating their filing the state will need to still prove their underlying case.

A nolo contendere filing is when the defendant admits to guilt and the case is filed for a year. The vast majority of filings are nolo contedere filings! A major difference between a not guilty filing and a nolo contendere filing is when a person is violated for a not guilty filing then the state / prosecution must prove guilt at that time. Whereas, if a person is violated for a nolo contendere filing, the judge simply must impose a sentence because the person has already admitted guilt to that offense.

If the person violates his filing by not complying with the conditions of the filing then the persons filing can be revoked by the Court. If a person takes a nolo contendere filing and gets into further trouble, violates the conditions of the filing or is arrested on a new offense then the person will be hailed back into court to be sentenced on the filing. (unless the filing was a not guilty filing which means the prosecution must prove the defendants guilt) There are various conditions that can be put on a filing inluding alcohol and drug counseling, domestic violence counseling or classes, restitution, no contact with the victim and community service.

A person that has a filing is subject to being held at the aci for 10 days as a violator of his filing if he is arrested for a new offense during the filing period.

What implications are there for domestic violence offenses in Rhode Island?

If the underlying charge is for a domestic offense such as domestic assault, vandalism, or domestic disorderly conduct then the defendant will be ordered to have no contact with his wife, girlfriend or the victim as the case may be.

Upon entering a plea or being found guilty of a crime with domestic implications then the defendant will be ordered to complete a batterers intervention program which involves attending classes. The defendant can also be ordered to pay restitution to the victim if applicable and obtain substance abuse or mental health counseling. Failure to attend the Batterers classes or failure to pay restitution or failure to attend counseling could be considered a violation of probation or a filing.

If the defendant violates the no contact order then the defendant will be charged with a separate offense of violating a no contact order as well as violating the conditions of the filing or probation, as a result of the communication.

The no contact order will remain in effect while the case is pending and during the period of any penalty or sentence. The no Contact order will expire if the case is dismissed. For example, a no contact order will stay in effect until any probationary period or suspended sentence is completed.

Rhode Island Family Court restraining orders

Be careful! There may be a separate restraining order that issued from Rhode Island Family Court as a result of a complaint protection from abuse in a divorce or family law matter. The Family Court has jurisdiction to issue restraining orders for up to three (3) years. The Family Court can issue restraining orders for persons who are married, are divorced, are family members or who have children in common as well as other jurisdiction set forth in the statute. There may also be a restraining order issued by a Court of another state or another Court

Violation of Family Court Complaint protection from Abuse restraining order is a crime in itself and also may constitute a violation of probation, bail and violation of conditions of a filing.

District Court Restraining orders:

There may also be a District Court restraining order from your (ex) boyfriend or girlfriend. The District Court has jurisdiction to issue restraining orders for persons who were or are in a dating relationship or who are roommates. Violation of a District Court restraining order is also a crime in itself. Violation of a District Court restraining order is also a violation of probation and a violation of the terms of bail and a violation of the conditions of a filing.

Superior Court Restraining orders:

Violation of A Superior Court restraining order is punishable by contempt proceedings which could result in confinement. However, violation of a Superior Court restraining order is not a crime in itself. Violation of a Superior Court Restraining order could be considered a violation of bail, probation or conditions of a filing.

Issues concerning custody and visitation of children as well as divorce and family related matters:

The District Court in a criminal case cannot be involved in setting vistitation or dealing with issues concerning divorce or custody of the minor children. The Rhode Island Family Court is the proper Forum for dealing with issues related to divorce and child custody such as: child support, visitation, financial restraining orders and issues concerning marital property, marital real estate and debt.

If your spouse or girlfriend or boyfriend is preventing you from visiting or talking to your child as a result of a criminal case or no contact order then you may need to file for divorce or a separate action for custody or visitation in Family Court.

The Family Court can set visitation and child support as part of a Complaint protection from abuse restraining order. In some instances when domestic violence is alleged or there are issues concerning alcohol, drug abuse or mental health then the Family Court may order supervised visitations. These Supervised visitations my occur at the Providence Family Court or may be supervised by a third party.

No Contact Orders in Rhode Island explained

A “no contact order” means that the defendant is precluded from having any contact and or communication with the victim or the person under the protection of the no contact order. This includes but is not limited to letters, emails, text messages or messages delivered through a third party.

In other words if a person is under a no contact order and sees the victim in public they must leave the area immediately and not acknowledge the victims existence. A person cannot even say “hi” if they walk by the victim by chance on the street.

Be very careful! A person can be arrested for violating a no contact order even if the victim initiates the contact and calls the defendant. A person can be charged with breaking a no contact order even if invited by his wife to come back to the marital home.

Even if the victim tells you that the no contact order has been dropped, do not take the victims word for it. You must see the piece of paper signed by the judge dismissing the no contact order before any contact or communication is initiated. A no contact order expires when the sentence period is finished. However, be careful because there may also be a restraining order issued as a reult of a divorce or family court matter or a District Court restraining order.

A person who is on probation or a probation attached to a suspended sentence must be even more vigilante in order to not violate the no contact order. For example, a single phone call made by the defendant to a victim under the protection of a no contact order probably means a minimum of ten 10 days in jail at the ACI. We are not talking about the local town jail but the ACI.

Violation of conditions of filing

Please note, that a person who has a filing can be held for up to ten days at the ACI if arrested for a new charge / crime. A person who is on a filing must be very careful that he / she stays out of trouble.

If the person is violated from the terms and conditions of the filing then hypothetically the filing could become a conviction because that person has already admitted to the charges by pleading nolo contendere and giving up his right to contest the charges. Court costs will be imposed if there is a nolo contendere filing in a criminal case.

Probation in Rhode Island

If a person receives probation then they will need to abide by the conditions of the probation and agree to keep the peace and be of good behavior. If a person violates his/ her probation by being arrested for a new crime then the person may be held in Jail at the ACI as a probation violator. After ten days a person has the right to a hearing. At the probation violation hearing, the prosecutor must only convince the judge so that the judge is “reasonably satisfied” that the person violated the probation by committing the new offense. Also the person will be prosecuted for the new offense as a separate charge from violating the probation. There is a good chance that if a person is violated for his probation that the probation which was originally not a conviction will now ripen into a conviction.

A probationary period is a time of great risk for a defendant and a defendant must be careful to stay out of trouble!

A person can also be violated for his probation for various infractions that may not be criminal acts but that violate the conditions of probation such as not keeping probation informed of new addresses, leaving the state without permission, not paying court costs or restitution, not properly reporting to the probation officer, etc. When a person is under probation in Rhode Island, he or she is essentially is in a contract with the state to keep the peace, be of good behavior and comply with the conditions and rules of probation.

What is a probation with a suspended sentence in Rhode Island?

If the charges are serious or the person has a lengthy criminal record of has already been placed on probation before then in addition to the probation, the judge may attach a suspended sentence. A person who has a suspended sentence is in a period of extreme risk because a new offense could lead to substantial jail time!

A suspended sentence is always a conviction under Rhode Island law. A person with probation and a suspended sentence attached will not spend anytime in prison unless the person violates the conditions of his probation as set forth above.

The period of the suspended sentence is the most time that a person could spend in prison if the person violates the conditions of the probation or commits a new offense. If the person violates the probation, the judge could sentence the person up to the amount of time that is suspended. Please note that the person could get additional sentence and or penalties as a result of the new charge. It is in the defendants best interest to have the period of suspended sentence to be as short as possible. The suspended sentence typically is for the same amount of time as the period of probation.

Please note that if the offense is driving on a suspended license there are special rules that apply that are set forth in the statutes.

Most prosecutors and judges believe that each sentence should be more severe then the last. A person’s first minor offense is likely to lead to only a filing which is the lowest form of penalty in Rhode Island. A person usually will only be allowed one filing.

Could I be incarcerated at the aci or serve time in jail as a result of a misdemeanor charge?

Yes. A serious misdemeanor could lead to incarceration at the Adult Correctional Institution (ACI). The Vast majority of misdemeanor cases do not result in a sentence of incarceration! A habitual offender could eventually face jail time. A person convicted of a second or third offense dui / dwi faces a minimum mandatory sentence to the ACI . A person with a probation violation or suspended sentence could face incarceration depending on the circumstances. In a Misdemeanor District Court case the Court only has jurisdiction to sentence a person to a year in jail. In some instances a person might qualify for Home confinement in lieu of a sentence at the ACI.

Please be advised that there are different considerations related to Felony criminal charges which are not adressed in this article including but not limited to deferred sentences. Please consult the Rhode Island Public Defender’s website for information related to felony charges and for an explanation of a Deferred sentence.

It is important that this criminal law article be used for informational purposes only and not as a substitute for seeking legal advice from a Rhode Island lawyer.

Legal Notice per RI Rules of Professional Responsibility:

The Rhode Island Supreme Court licenses all lawyers and attorneys in the general practice of law, but does not license or certify any lawyer/ attorney as an expert or specialist in any field of practice.

Rhode Island Probation- A period of Extreme Risk!

If a person receives probation then they will need to abide by the conditions of the probation and agree to keep the peace and be of good behavior. A probationary period is a period of extreme risk! If a person violates his probation by being arrested for a new crime then the person may be held in Jail at the ACI as a probation violator. After ten business days a person has the right to a hearing.

A person who is facing a probation violation hearing should retain a Rhode Island Criminal law attorney or if eligible should Contact the Rhode Island Office of the Public Defender. If a person is eligible they will receive a free attorney from the Public Defender.

At the probation violation hearing, the prosecutor must only convince the judge so that the judge is “reasonably satisfied” that the person violated the probation by committing the new offense. Also the person will be prosecuted for the new offense as a separate charge from violating the probation. There is a good chance that if a person is violated for his probation that the probation which was originally not a conviction will now ripen into a conviction. At the violation hearing the prosecutor has all of the leverage and power to coerce a plea because it is very easy to prove a probation violation and the prosecutor can threaten additional jail time as a result of the probation violation.

A probationary period is a time of great risk for a defendant and a defendant must be careful to stay out of trouble! A person must be even more vigilant if there is a no contact order, order protection from Abuse from The Rhode island Family Court or restraining order in effect. A violation of a no contact order or a restraining order is a violation of probation.

A person with a suspended or stayed sentence faces the most potential risk regarding violation of probation in RI. As a result of a probation violation, A person with a suspended sentence could be ordered to serve the remainder of the suspended sentence at the adult correctional institution (ACI)

For Example, a person with a probation sentence may get themselves deeper into trouble when they resume communications and contact with their wife or girlfriend despite the fact that a no contact order is in effect. If there is an argument or allegations of domestic assault or abuse, the police may arrest the person and hold him/her at the aci as a probation violator as well as new charges for domestic assault and violation of a no contact order or restraining order.

A person can also be violated for his probation for various infractions that may not be criminal acts but that violate the conditions of probation such as not keeping probation informed of new addresses, leaving the state without permission, not paying court costs or restitution, not properly reporting to the probation officer, etc. These infractions are typically considered technical violations of probation. When a person is under probation in Rhode Island he or she is essentially is in a contract with the state to keep the peace, be of good behavior and comply with the conditions and rules of probation.

Legal Notice per RI Rules of Professional Responsibility:

The Rhode Island Supreme Court licenses all lawyers and attorneys in the general practice of law, but does not license or certify any lawyer/ attorney as an expert or specialist in any field of practice.

Criminal No Contact Orders – What Constitutes a Violation?

A “no contact order” means that the defendant is precluded from having any contact and or communication with the victim or the person under the protection of the no contact order. This includes but is not limited to letters, emails, text messages or messages delivered through a third party. This article by Rhode Island Criminal Lawyer David Slepkow pertains to Rhode Island (RI) no contact orders. In other words if a person is under this type of restrianing order and sees the victim in public they must leave the area immediately and not acknowledge the victims existence. A person cannot even say “hi” if they walk by the victim by chance on the street.Be very careful! A person can be arrested for a violation even if the victim initiates the contact and calls the defendant. A person can be charged with a violation even if invited by his wife to come back to the marital home.

Even if the victim tells you that the no contact order has been dropped, do not take the victims word for it. You must see the piece of paper signed by the judge dismissing the order before any contact or communication is initiated. A no contact order expires when the sentence period is finished. It also expires if the case is dismissed or the defendant is found not guilty. However, be careful because there may also be another restraining order issued as a result of a divorce or Family Court matter or a District Court restraining order.
A person who is on probation, bail or a probation attached to a suspended sentence must be even more vigilante in order to not violate the no contact order. A violation is a crime in itself which is also a violation of the conditions of probation, filing or bail.

A person on probation, during a one year filing or bail can be held at the ACI if they are accused of violating a no-contact order. For example if a person is on probation, filing or bail, a single phone call made by the defendant to a victim under the protection of a no contact order probably means a minimum of ten 10 days in jail at the ACI. We are not talking about the local town jail but the ACI. If a person has a suspended sentence the amount of jail time for could be substantial.

Legal Notice per RI Rules of Professional Responsibility:

The Rhode Island Supreme Court licenses all lawyers and attorneys in the general practice of law, but does not license or certify any lawyer/ attorney as an expert or specialist in any field of practice.

How to Obtain Personal Property when there is a No Contact Order

How does a person obtain his or her personal belongings in Rhode Island (RI) when there is a criminal no contact order / Family Court restraining order or District Court Restraining Order?A person arrested for a criminal domestic violence offense involving his wife or girlfriend, who he resides with, often needs to obtain his clothes and personal belongings despite the fact that there is a no contact order in effect. This also applies when there is a restraining order in effect.

Personal belongings usually consists of personal property such as clothes, sneakers, toiletries, uniforms, personal effects etc.There are several proper ways for an accused to obtain his / her personal belongings when there is a no contact order / restraining order in effect:

(1) The accused can contact the police department where the victim resides and seek to make arrangements to pick up personal belongings. The police will often escort the person to the home. The downside of this arrangement is that the police often are in a rush and enforce a time limit.

(2) If the accused has a private attorney, the lawyer can contact the victims attorney who can contact the victim to make arrangements. The accused’s attorney can also seek to contact the victim to make arrangements (if the victim has no lawyer). This can have pitfalls because the victim may be hostile or the victim may have no interest in negotiating. The accused can also call the victims lawyers to make arrangements.

(3) The accused can attempt to arrange to get his belongings through a third party such as a friend or family member who knows the victim. The accused must be careful not to violate the no contact order.

(4) The accused can seek relief from the Family Court or the District Court where the restraining orders were filed in an attempt to retrieve their belongings.

If there is a criminal no contact order the Criminal Judge will not get involved in helping retrieve the accuseds’ personal property. There is absolutely no Rhode Island (RI) case law concerning this matter!

Rhode Island lawyer David Slepkow concentrates in criminal law, dui, divorce, family law, personal injury law, slip and fall and automobile accidents. You can contact David at http://www.slepkowlaw.com or by calling him at 401-437-1100.

David Slepkow is a lawyer and partner at Slepkow Slepkow & Associates, Inc. in East Providence, Rhode Island. Slepkow Slepkow & Associates, Inc. was established in 1932 and is currently celebrating its 75th anniversary! Attorney, David Slepkow is a member of the Rhode Island (RI) and Massachusetts (MA) Bar Association. David offers free initial consultations and accepts all major credit cards. If necessary, David can arrange weekend and evening consults. David never charges any fee for personal injury case, automobile / auto/ car accidents and slip & fall cases unless successful.

Rhode Island Divorce Lawyer

Is Nolo Contendere a Conviction under Rhode Island Criminal Law?

Nolo contendere means a person is not contesting the charges. When a defendant takes a nolo plea in Rhode island, the defendant is indicting that he does not want to contest the charges but is also essentially admitting to the charges. What is the difference between a guilty plea and a nolo contendere plea in RI? There is a huge difference! A guilty plea is always a criminal conviction under RI law. A criminal conviction has major negative implications especially when a person applies for employment. A plea of nolo may not constitute a criminal conviction. It is only a conviction in RI if there is a sentence of confinement (such as the ACI or home confinement), a suspended sentence or a fine imposed.

For example, A plea of nolo contendere with a sentence of probation and a contribution to the violent crimes indemnity fund or court costs will not constitute a conviction under Rhode Island law! For example, A plea of nolo contendere with a sentence of a filing and a contribution to the violent crimes indemnity fund (vcif) will not constitute a conviction under Rhode Island law.However, anything with a fine attached to it will be a conviction under Rhode Island law. Therefore, it is important that the defendant gets either no fine or a contribution to the victims fund or court costs rather then a fine.

All misdemeanor plea agreements in Rhode lsland (RI) should be nolo contendere with court costs or a contribution towards the victims indemnity fund rather then guilty pleas!

Legal Notice per RI Rules of Professional Responsibility:

The Rhode Island Supreme Court licenses all lawyers and attorneys in the general practice of law, but does not license or certify any lawyer/ attorney as an expert or specialist in any field of practice.