Last updated:  December 29, 2020

I.  Loss & restoration of civil/firearms rights

A.  Civil rights

Voting and office:  The right to vote and hold office are lost only while actually incarcerated:

(a) A person sentenced for a felony, from the time of his sentence until his final discharge, may not:

(1) Vote in an election, but if execution of sentence is suspended with or without the defendant being placed on probation or he is paroled after commitment to imprisonment, the correctional facility shall provide the offender written notice that he or she may vote during the period of the suspension or parole; or

(2) Seek the nomination of a political party or become a candidate for or hold public office.

(b) In this paragraph, “final discharge” means the release of a prisoner from incarceration.  A person who is on probation or parole shall be considered to be finally discharged for the purpose of this section.

N.H. Rev. Stat. Ann. § 607-A:2(I).   Disenfranchisement has been limited to those actually incarcerated since 1965, see Charlene Beaulieu & Lauren F. Hanke, Commentary: The Disenfranchisement of New Hampshire’s Incarcerated Felons, 42 N.H.B.J. 38, Sept. 1, 2001.  In 2019, the addition of a new definition of “final discharge” in subsection (b) of § 607-A:2(I) extended the same eligibility to holding public office.  See HB486.  This same law added the requirement of written notice of voting rights to subsection (a)(1), and amended N.H. Rev. Stat. Ann. § 504-A:12-a to require probation-parole officer training material to include instruction concerning rights lost and retained by a person convicted of a felon

Jury service:  N.H. Rev. Stat. Ann. § 500-A:7-a(V):  “A juror shall not have been convicted of any felony unless the conviction has been annulled.”

Restoration of rights is also available from the governor in the case of federal or out-of-state convictions.  N.H. Rev. Stat. Ann. § 607-A:5.

B.  Firearms

A person convicted of a “felony against the person or property of another” or a felony drug offense may not own or possess any firearm.  N.H. Rev. Stat. Ann. § 159:3.  This restriction may be relieved by pardon or, for nonviolent offenses, by judicial annulment pursuant to N.H. Rev. Stat. Ann. §§ 4:23, 651:5, discussed infra.

II.  Pardon policy & practice

A.  Authority

The pardon power (except in cases of impeachment) is vested in the governor, “by and with the advice of [the executive] council,” a core elected body of five that advises the governor generally in carrying out his duties.  N.H. Const. pt. 2, art. 52.  The executive council is composed of five members, biennially elected from each of five counties of the state, “for advising the governor in the executive part of government.”  Id. pt. 2, art. 60.  According to the Office of the Attorney General, the constitutional requirement of “advice” has traditionally been interpreted to require the governor to obtain a supporting majority vote of the council before issuing a pardon.  The governor may not remit fines or forfeitures in criminal cases, and may not grant a pardon before conviction.  Id. pt. 2, art. 52.  

B.  Eligibility

Persons eligible for “annulment” under N.H. Rev. Stat. Ann. § 651:5 will generally not be considered for a pardon.  Persons convicted under federal law or the law of another state will not be considered for pardon.

C.  Effect

A pardon “is an act of executive grace completely eliminating all consequences of the conviction, but it does not remove the record of the conviction.”  Doe v. State, 114 N.H. 714 (1974).

D.  Process

See N.H. Rev. Stat. Ann. §§ 4:21 to 4:28. 

On all petitions to the governor and council for pardon or commutation of sentence written notice thereof shall be given to the state’s counsel, and such notice to others as the governor may direct; and the prosecuting officer may be required to furnish a concise statement of the case as proved at the trial and any other facts bearing on the propriety of granting the petition.

§ 4:21. “In all cases where the petition is for the pardon of a person serving a sentence in the state prison, the commissioner of corrections shall make a report upon the petition before it is referred to the council.” § 4:22.  No hearing is required.  It has been the custom to consider cases in the order filed, with no case being moved ahead of others in line.  No standards of review have been promulgated to date.  Source: Office of the Attorney General of New Hampshire. 

E.  Frequency of Grants

The Attorney General’s office receives about 25 applications for clemency per year, but only three pardons and two sentence commutations have been granted since 1996.¹.  The last governor to issue a significant number of pardons was John Sununu (17 pardons from 1983 to 1989).  See Norma Love, NH govs historically stingy in granting pardons, Boston Globe (Jan. 1, 2011), available at  http://www.boston.com/news/local/new_hampshire/articles/2011/01/01/nh_govs_historically_stingy_in_granting_pardons. 

F.  Contact

Audrey Blodgett
Office of the Attorney General
603/271-3591
blodgett@doj.nh.gov

III.  Expungement, sealing & other record relief

A.  Annulment

Most crimes (exclusions described below) may be “annulled” by the sentencing court in response to a petition, if “in the opinion of the court, the annulment will assist in the petitioner’s rehabilitation and will be consistent with the public welfare.”  N.H. Rev. Stat. Ann. § 651:5(I).²  The court may grant or deny an annulment without a hearing, unless a hearing is requested by the petitioner.  Id.  In a 2012 opinion, the Supreme Court of New Hampshire ruled that, in exercising discretion to grant an annulment pursuant to the “public welfare” standard, the court

may consider such factors as the number and circumstances of the convictions at issue, the defendant’s age at the time of each conviction, the time span of the convictions, and the particular manner in which annulment would aid the defendant’s rehabilitation—for example, by allowing him to obtain a professional license or to pursue a calling otherwise prohibited to those convicted of a crime.

State v. Baker, 55 A.3d 1001, 1005 (2012).  Other relevant factors may also be considered.  Id.  Courts “may not consider simply the fact of the defendant’s convictions without considering the specific facts and circumstances that led to them.”  Id. at 1004.

Waiting periods range from one year for a violation, three years for misdemeanors, five years for a class B felony and ten years for a Class A felony and sexual assault, indecent exposure, and lewdness.  § 651:5(III).   There may be no conviction during the waiting period.  If denied, a petitioner must wait three years to reapply.  § 651:5(IV).  No annulment may be granted “in the case of any violent crime, of felony obstruction of justice crimes, or of any offense for which the petitioner was sentenced to an extended term of imprisonment under § 651:6,” which includes crime as a major source of livelihood, exceptional cruelty resulting in serious bodily harm, crime against (or by) a law enforcement officer, and hate crimes.  See § 651:5(V).  “Violent crime” is defined to include specified homicide, felony assault, kidnapping, felony arson, robbery, incest, and felony child sexual abuse offenses.  People with multiple convictions must satisfy waiting periods for all crimes, and may not have any excludable crime.  § 651:5(VI).  For rules governing applications to annul records of conviction and sentence see N.H. Super. Ct. R. 108 & N.H. Dist. Ct. R. 2.18 (as amended by 2012 N.H. Ct. Order 0002).   

Effective January 1, 2020, a person who was arrested or convicted for obtaining, purchasing, transporting, or possessing, 3/4 of an ounce of marijuana or less, before September 16, 2017, may at any time petition the court to annul the arrest and court record. N.H. Rev. Stat. Ann. § 651:5-b.

B.  Non-conviction records

For an offense disposed of on or after January 1, 2019, any person whose arrest has resulted in a finding of not guilty on all charges that resulted from the arrest, or whose case was dismissed or not prosecuted, shall have the arrest record and court record automatically annulled:  (1) Thirty days following the finding of dismissal if an appeal is not taken or finding of not guilty; or (2) Upon final determination of the appeal affirming the finding of dismissal if an appeal is taken  N.H. Rev. Stat. Ann. § 651:5(II-a)(a).   Any person who was convicted of a criminal offense whose conviction was subsequently vacated by a court shall have the arrest record and court record annulled. § 651:5(II-a)(b).   This does not affect the right of law enforcement officers to maintain arrest and conviction records and to communicate information regarding the annulled record of arrest or conviction to other law enforcement officers for legitimate investigative purposes or in defense of any civil suit arising out of the facts of the arrest, or to the police standards and training council solely for the purpose of assisting the council in determining the fitness of an individual to serve as a law enforcement officer. . . ” § 651:5(XI).   

For a case disposed of before January 1, 2019, a person whose arrest has resulted in a finding of not guilty, or whose case was dismissed or not prosecuted, “may petition for annulment of the arrest record or court record, or both, at any time . . . . .”   Relief subject to same “public welfare” standard as convictions.  N.H. Rev. Stat. Ann. § 651:5(II).

For access to non-conviction records in the repository, including uncharged arrests, see the 2019 law (discussed below) creating the category of “confidential criminal history information,” defined to include arrests and other non-conviction records as well as records of convictions that have been annulled. See N.H. Rev. Stat. Ann. § 106:B-1.  The effect of making a repository record confidential is less complete than the effect of annulment.  See below. 

The Department of Corrections is required to report to the court on a petitioner’s criminal history, for which petitioners must pay a statutory fee of $100 unless the petitioner is indigent, or has been found not guilty, or the case has been dismissed or not prosecuted.  There is also a $100 fee payable to the Department of Safety for researching and correcting the criminal history record.  The court shall provide a copy of the petition to the prosecutor of the underlying offense and permit them to be heard regarding the interest of justice in regard to the petition.  N.H. Rev. Stat. Ann. § 651:5(IX). 

Drug court:  N.H. Rev. Stat. Ann. § 490-G:2 Courts may establish a drug court.  “Upon successful completion of a program recommended by the drug court, a drug offender’s case may be disposed of by the judge in the manner prescribed by the agreement and by the applicable policies and procedures adopted by the drug court. This may include, but is not limited to, withholding criminal charges, dismissal of charges, probation, deferred sentencing, suspended sentencing, split sentencing, or a reduced period of incarceration.” A person sentenced by a drug court may, at least one year after successful completion of all programs and conditions imposed by the drug court, petition for annulment of the charges, arrest, conviction, and sentence that relate to such person’s entry into the drug court.”

Wrongful arrests:  In addition, if a court, law enforcement agency, or prosecutor “determines that a person was wrongfully arrested, the person may submit to the court a single page application to expunge all records relating to the arrest including, without limitation, any photographs, fingerprints or biological evidence, on a form provided by the court,” no fee may be charged, and the court “shall issue” an expungement order upon verifying the wrongful arrest finding.  See AB 315 (adding new section to Ch. 179 of NRS).

­C.  Effect

Upon entry of an order of annulment, the person “shall be treated in all respects as if he had never been arrested, convicted or sentenced,” except that, upon conviction of any later crime, the annulled conviction may be taken into account for sentencing purposes and may be counted toward habitual offender status.  N.H. Rev. Stat. Ann. § 651:5(X)(a).  See Panas v. Harakis, 129 N.H. 591 (1987) (this section effectively “erases” the conviction but does not prevent introduction of evidence of the incident that underlies the conviction);  Brown v. Brown, 133 N.H. 442 (1990) (civil litigant properly prohibited by this section from using defendant’s annulled conviction to establish the occurrence of an assault). Employers and licensing agencies may not inquire about annulled convictions:   

In any application for employment, license or other civil right or privilege, or in any appearance as a witness in any proceeding or hearing, a person may be questioned about a previous criminal record only in terms such as “Have you ever been arrested for or convicted of a crime that has not been annulled by a court?” 

N.H. Rev. Stat. Ann. § 651:5(X)(f). 

Annulled records are only available to the person receiving the annulment and to law enforcement. § 651:5(X)(c).   Prior to 2013, annulled records remained available to the public, though they were required to be marked as having been annulled. 

D.  “Confidential criminal history information”

In 2019, HB 637 created two categories of criminal history information to be maintained by the state police records repository, one “confidential” and the other “public.”  “Confidential criminal history information” is defined to include “summons and arrest information without disposition” as well as other non-conviction records, and records of convictions that have been annulled. See N.H. Rev. Stat. Ann. § 106:B-1.   Law enforcement agencies, the subject of the record, and background screening companies subject to FCRA may have access to confidential criminal history information, but “public criminal history information . . . shall be the official source of certified criminal [conviction] history records for employment and licensing purposes.” § 106:B-14(I-a)(d).  

E.  Vacatur for victims of human trafficking

An individual convicted of [prostitution or a related offense] for conduct committed as a direct result of being a victim of human trafficking may file a motion with the circuit court, district division, to vacate the conviction. A copy of the motion shall be provided to the agency that prosecuted the offense. After a hearing, the court may grant the request upon a finding, by clear and convincing evidence, that the defendant’s participation in the offense was a direct result of being trafficked. 

N.H. Rev. Stat. § 633:7(VI)(b).  A person whose conviction was vacated may petition for annulment under  § 651:5(II).

F.  Sealing of juvenile records

Juvenile case records are confidential.  In addition, “[o]nce a delinquent reaches 21 years of age, all court records and individual institutional records, including police records, shall be closed and placed in an inactive file.”  N.H. Rev. Stat. Ann. § 169-B:35.  Law enforcement officials may still access the files to investigate and prosecute criminal activity.  Id.

IV.  Criminal record in employment & licensing

A. Employment

In 2020, HB253 enacted a ban-the-box law in public employment, prohibiting application stage inquiry into criminal record prior to the initial interview, “unless the public employer is required to screen applications for specific criminal convictions because it is prohibited from hiring those with such convictions under state or federal law.” N.H. Rev. Stat. Ann. § 275:37-c(II).  

N.H. Rev. Stat. Ann. § 651:5(X)(f) limits questions from employers and licensing boards about annulled convictions.  See Part II, supra.

B. Occupational licensing

2018 occupational licensing reforms

On July 2, 2018, New Hampshire approved amendments N.H. Rev. Stat. Ann. § 332-G authorizing individuals to seek a preliminary assessment, from any state agency issuing occupational and professional licenses, as to whether their criminal record will disqualify them from licensure.  See SB 589, https://www.gencourt.state.nh.us/bill_status/billText.aspx?sy=2018&id=1942&txtFormat=html.³.  Section 332-G:13 (“Petition for Review of a Criminal Record”) is premised on the idea that “the right of an individual to pursue an occupation is a fundamental right.”  It provides that an individual with a criminal record “may petition a board or commission at any time, including before obtaining any required education or training, for a determination of whether the individual’s criminal record will disqualify the individual from obtaining state recognition.” The petition “may include additional information about the individual’s current circumstances, including the time since the offense, completion of the criminal sentence, other evidence of rehabilitation, testimonials, employment history, and employment aspirations.”

Standards for disqualification:  The new law, which is effective August 31, 2018, provides that an individual may be disqualified from licensure based on criminal record only if convicted of a felony or violent misdemeanor, and only if the licensing board concludes that “the state has an important interest in protecting public safety that is superior to the individual’s right” to be licensed. The board may reach this conclusion only if it determines, by clear and convincing evidence at the time of the petition, that:

(1)  The specific offense for which the individual was convicted is substantially related to the state’s interest;

(2)  The individual, based on the nature of the specific offense for which the individual was convicted and the individual’s current circumstances . . . , is more likely to re-offend by virtue of having the license than if the individual did not have the license; and

(3)  A re-offense will cause greater harm than it would if the individual did not have the license.

Procedure for determination and appeal:  The board shall issue its determination within 90 days after the board or commission receives the petition.  The determination shall be in writing and include the criminal record, findings of fact, and conclusions of law.  If the board determines that the state’s interest is superior to the individual’s right, the board may may advise the individual of actions the individual may take to remedy the disqualification. The individual may submit a revised petition reflecting the completion of the remedies at any time after 90 days following the board’s judgment.

In the event of a negative determination, the individual may appeal the board’s determination through the administrative procedure act.  The individual may submit a new petition to the board or commission at any time after 2 years following a final judgment on the initial petition. The board may rescind its determination at any time if the individual is convicted of an additional offense that the board determines meets the criteria for initial disqualification.  The board may charge a fee to recoup its costs not to exceed $100 for each petition.

Annual reporting requirement:  The state office of professional licensure and certification shall establish an annual reporting requirement of the (a) number of applicants petitioning each board (or commission), (b) the numbers of each board’s approvals and denials, (c) the type of offenses for which each board approved or denied the petitions, and (d) other data the office determines.  The office will compile and publish annually a report on a searchable public website.

Pre-2018 provisions on occupational and business licenses  

As of January 2015, no board or commission may deny, suspend, or revoke an occupational or business license “because of a prior conviction of a crime in and of itself.”  N.H. Rev. Stat. Ann. § 332-G:10.  However, a license may be denied or impaired “after considering the nature of the crime and whether there is a substantial and direct relationship to the occupation, trade, vocation, or profession for which the person has applied, and may consider information about the rehabilitation of the convicted person, and the amount of time that has passed since the conviction or release.”  Id. 

As noted in Part II, N.H. Rev. Stat. Ann. § 651:5(X)(f) limits questions from employers and licensing boards about annulled convictions. 

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1.   One pardon was granted in December 2018 to a local political party official who claimed unlawful bias in connection with his 2014 conviction for of resisting arrest.  Executive Council grants pardon to ex-Newmarket GOP chairman, Dec. 19, 2018, https://www.seacoastonline.com/news/20181219/executive-council-grants-pardon-to-ex-newmarket-gop-chairman.   The other two pardons were in 2011 to a woman convicted of escape 29 years before, and in 2003 to a National Guardsman headed for Iraq who wanted firearms restoration.  See Owen Labrie unlikely to get pardon, history says, WCVB 5, http://www.wcvb.com/news/owen-labrie-unlikely-to-get-pardon-history-says/36039286 (Oct. 25, 2015); Guardsman Pardoned, Will Be Deployed, Dec. 22, 2003, http://www.freerepublic.com/focus/f-news/1044919/posts; Lynn Tuohy, NH Executive Council Pardons Escape Conviction, 16, 2011, http://www.fosters.com/apps/pbcs.dll/article?AID=/20110216/NEWS0201/110219681.
2. As originally enacted, annulment applied only to youthful offenders (under 21) sentenced to probation or conditional discharge, including payment of a fine.  See State v. Comeau, 142 N.H. 84 (1997); State v. Roger M., 121 N.H. 19 (1981).  The statute was completely rewritten in 1994 and extended to certain adult offenders.  In Comeau, the retroactive application of the longer waiting periods under the new statute was held not to violate the ex post facto clause.  142 N.H. at 89. 
3. This provision tracks closely the model law proposed by the Institute for Justice.  See https://ccresourcecenter.org/2018/06/29/collateral-consequences-in-occupational-licensing-act/#more-16652.