Violations aren't "crimes" so defendants convicted to amended violations can get their arrest records expunged

 Barker v. Young (HSC March 6, 2023)

Background. Phillip Barker was arrested under suspicion of harassment, a petty misdemeanor. He ultimately pleaded no contest to the amended charge of disorderly conduct, a violation. Approximately two years after the arrest, he applied to the Hawai'i Criminal Justice Data Center (HCJDC) to have his arrest records expunged. The application was denied.

 

Barker filed a civil complaint against the HCJDC asking the circuit court to order the HCJDC to accept his application because he was eligible for an expungement. Both Barker and the HCJDC filed motions for summary judgment. The circuit court—with the Hon. Bert I. Ayabe presiding—ruled for the HCJDC and granted its motion for summary judgment. Barker appealed. The ICA in a published opinion written by the Hon. Judge Karen T. Nakasone affirmed. The circuit court and the ICA relied on legislative history and concluded that the expungement statute did not cover violations because a violation is a “crime.” Barker petitioned the HSC for further review. The HCJDC did not respond and the HSC granted its writ of certiorari.

 

The expungement statute. The case centers around the interpretation of the expungement statute:

 

Expungement orders. (a) The . . . attorney general’s duly authorized representative . . ., upon written application from a person arrested for, or charged with but not convicted of a crime, . . . shall issue an expungement order annulling, cancelling, and rescinding the record of arrest[.]”

 

HRS § 831-3.2. There is an exception. An expungement order shall not issue “[f]or a period of five years after arrest or citation in the case of a petty misdemeanor or violation where conviction has not been obtained because of a bail forfeiture[.]” HRS § 831-3.2(a)(2).

 

The expungement statute clearly and unambiguously applies to those charged with, but never convicted of a “crime.” When the statute’ “is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning.” State v. Wheeler, 121 Hawai'i 383, 390, 219 P.3d 1170 (2009). According to the HSC, HRS § 831-3.2(a) is clear: a person arrested for or charged with a crime, but who is not convicted of one is eligible for an arrest record expungement. Barker was arrested for and charged with a “crime,” but was never convicted of one. He was convicted of a criminal violation. “A violation does not constitute a crime, and conviction of a violation shall not give rise to any civil disability based on conviction of a criminal offense.” HRS § 701-107(5). Thus, the HCJDC was required to grant his application.

 

The exception in HRS § 831-3.2(a)(2) does not change that. The HSC rejected the HCJDC’s argument that the exception created an ambiguity warranting other canons of statutory construction. According to the HSC, the exception means that “if there is no conviction on a petty misdemeanor or violation charge because of a bail forfeiture (non-appearance in court), an expungement order cannot issue until five years from the date of arrest or citation.” However, a conviction on a charged violation is different. That does not trigger the exception and the general rule under HRS § 831-3.2(a) would apply. There is no ambiguity here and using other canons of construction to create an ambiguity must be avoided. See State v. Obrero, 151 Hawai'i 472, 479, 517 P.3d 755, 762 (2022) (canons of construction “should not be used to muddle the meaning of unequivocal, but inconvenient, black letter law.”).

 

The HSC vacated the circuit court’s order granting summary judgment for the HCJDC.

 

The HCJDC’s hypothetical. The HCJDC pointed out the problem with the statute. It plainly and unambiguously provides that if a person is arrested for or charged with a petty misdemeanor and is later convicted to a violation, like Barker, he gets the arrest records expunged. But if a person is charged with or arrested for a violation and later is convicted of the violation, that person cannot because a violation is not a “crime.”

 

The HSC “appreciate[d] the concern expressed by the HCJDC” but noted that that issue was not before the Court. It did address the problem in a footnote:

 

If such a case were to arise, other rules of statutory interpretation could be triggered. For example, “[i]f a literal construction of statutory language would produce an absurd result, we presume that result was not intended and construe the statute in accord with its underlying legislative intent.” State v. Abella, 145 Hawai'i 541, 552, 454 P.3d 482, 493 (2019) (citation omitted).

 

And so it looks like amending charges down to violations permits defendants to get an expungement—and without a waiting period to boot. The application process—which can be found here—could get busy.