The state Judiciary is seeking comments on a proposal that would seal court records for defendants who have their criminal cases dismissed when they plead guilty or no contest and abide by conditions similar to probation.
Defendants can obtain the dismissals under state law through what’s known as deferred acceptance of a guilty or no-contest plea, a provision that gives a second chance to people unlikely to commit future crimes.
The provision is generally reserved for first-time offenders and has been applied in numerous felony and misdemeanor cases, including high-profile prosecutions such as the misdemeanor case last year against former City Councilman Rod Tam for stealing city money and violating state campaign spending laws.
More recently, 20-year-old Australian visitor Tyson Dagley was granted a deferral of his no-contest plea to a misdemeanor negligent homicide charge in the personal watercraft collision that killed a Northern California teenager at Keehi Lagoon last month.
The charge will be dropped if Dagley stays out of trouble for a year.
Currently, state judges can seal court files upon request by defendants who had their cases dismissed through the deferral process.
The proposal would automatically seal a court file once a judge rules that a defendant complied with conditions and dismisses the charge.
Court files are open to the public and contain the specific criminal charges. Other information varies, but could include the judge’s rulings on pretrial motions, possible defenses and sometimes more details about the allegations and the defendant’s background.
Judiciary officials could not immediately say how many plea deferrals have been granted.
A report to state lawmakers by a Judicial Council committee said 2,012 deferrals were completed in 2005.
HOW TO COMMENT
The Hawaii Supreme Court is seeking public comment on the following proposal to amend Hawaii Rules of Penal Procedure:
“Sealing certain records. Upon a court’s determination a defendant has complied with the terms and conditions of a deferred acceptance plea and dismissal of the charge(s), or upon presentation of evidence the arrest record underlying the charge on the case has been expunged pursuant to statute, the clerk shall seal the record.” People may submit written comments by mail to the Judiciary’s Communications and Community Relations Office at 417 S. King St., Honolulu, HI 96813; by fax to 539-4801; or at www.courts.state.hi.us. The deadline for comment is Monday.
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The proposed rule would establish "consistency" with the information available through the Hawaii Criminal Justice Data Center, said Marsha Kitagawa, judiciary spokeswoman.
The data center provides the public with information on criminal convictions of individuals, but it does not list deferrals, which are not convictions since the charges have been dismissed.
Kitagawa said the Hawaii Supreme Court has not taken a position on the proposal and is simply asking for public comment.
But she said at this point, the Judiciary does not intend to apply the rule retroactively and automatically seal past deferral cases.
Under the proposal, former defendants could also seal their court files by showing they obtained an expungement order issued by the state Attorney General’s Office.
The order allows individuals who were arrested and charged but not convicted to have their arrest records rescinded.
The high court will consider the comments, then decide whether to adopt the rule or adopt a modification of the proposal.
As of last week, the Judiciary had received three comments, including one from a lawyer who favors the proposal. She said she had a client who obtained a deferral a while ago, but the record is "still hanging around."
The deadline for people to submit comments is Monday.
