New Hampshire

Collateral Consequences in the State of New Hampshire

The collateral consequences faced by juvenile offenders in New Hampshire are minimized because only limited access is provided to juvenile records.[1] In addition, when a juvenile reaches the age of majority, arrest and court files are automatically closed and can only be obtained by police officers and prosecutors.[2]

Understanding the Justice System

            In New Hampshire, a person is considered a minor until the age of seventeen.[3] Consequentially, anyone seventeen or older is considered an adult in the criminal justice system.[4] The court will adjudicate “delinquent” any person who, before reaching the age of seventeen, has committed an offense that would be a misdemeanor or a felony if committed by an adult.[5]  Juvenile delinquents are not considered criminals.[6] Instead, New Hampshire’s juvenile proceedings are conducted to prevent the criminal stigma from attaching to immature conduct by minors.[7] It is not designed to punish the child for breaking the law, but to rehabilitate the child into a worthy citizen.[8]  

            Juvenile cases can be transferred to the superior court when the offense complained of constitutes a felony if committed by an adult.[9] A transfer to superior court results in the minor being criminally prosecuted in the same manner as an adult.[10] Prior to transfer, the court conducts a certification hearing and considers factors such as the seriousness of the offense, the maturity of the minor, the violent nature of the offense, and the likelihood of rehabilitation.[11]  Although there are eight factors listed in the statute, the court is not limited to those eight and may consider anything it deems relevant.[12]  A presumption in favor of transfer arises when a juvenile is charged with a certain offense, such as first or second degree murder, attempted murder, manslaughter, first degree assault, aggravated felonious sexual assault, and kidnapping.[13] Any juvenile who has been tried and convicted as an adult will thereafter be tried as an adult for any subsequent criminal offense.[14] Additionally, any person sixteen years of age or older charged with a tobacco violation or a violation of motor vehicle law, aeronautics law, fish and game law, or fireworks law may be charged in adult court.[15] 

Notification of Collateral Consequences of Juvenile Records

            There is no statutory authority charging any member of the juvenile justice system with the responsibility to notify youths of the collateral consequences of court involvement. New Hampshire courts have concluded that attorneys do not have the affirmative duty to inform a client about all collateral consequences.[16] Therefore, the failure to do so is not sufficient support for a claim of ineffective assistance of counsel.[17] However, an ineffective assistance of counsel claim may arise under the state constitution where the defense attorney grossly misinforms a client about collateral consequences and the client relies on that advice.[18]

Treatment of Juvenile Records

Are juvenile records made public?

            In New Hampshire, juvenile records are not open to the public.[19] It is illegal for any media outlet to broadcast the identifying information of any juvenile who has been arrested without express permission from the court.[20] It is also illegal to publicize juvenile court proceedings.[21] However, if a minor’s delinquent act would be considered a felony if committed by an adult, publication about the disposition of the case may occur so long as the delinquent’s name is not used.[22]

In addition, if the juvenile is at least twelve years old and found to have committed vandalism or two or more offenses of possession with intent to distribute a controlled drug, there is no restriction on the release of the juvenile’s identity or address.[23] Under these circumstances, the media may also publicize the name and address of the minor’s parent or guardian.[24]

Finally, if a minor has been adjudicated delinquent for the commission of a violent crime, the court clerk may release the juvenile’s name and address, the specific offense, the juvenile’s custody status, and the final disposition.[25]

Where are juvenile records stored?

Juvenile records are kept in books and files separate from all other court records and are withheld from public inspection.[26]  The records can be accessed in a database known as “NH Bridges” which is used by the Department of Juvenile Justice and the Department of Children, Family and Youth Services.[27]

Who can access juvenile records?

            Generally, juvenile records are closed to public inspection.[28] However, juvenile records may be accessed by officers of the institution where a minor is committed, juvenile probation and parole officers, a parent or guardian, the minor's attorney, the relevant county, and others entrusted with the corrective treatment of the minor.[29] Police officers and prosecutors may also access juvenile records for the purpose of investigating and prosecuting criminal acts and can access this information even after the minor has reached the age of majority.[30] Additional access may also be granted by court order or upon the written consent of the minor.[31]

If the minor commits a violent crime, the victim is provided with information about the minor and case disposition.[32]  The victim will be informed of the identity, address, and custody status of the minor and will also receive information about all court proceedings and the final disposition of the minor’s case.[33]

Sealing and Expunging Delinquency Files or Records

Do juveniles have the ability to seal or expunge arrest and court records?

When a juvenile delinquent reaches twenty-one years of age, court records and individual institutional records—including police records—are closed and placed in an inactive file.[34]        However, even though the file is closed, police officers and prosecutors in New Hampshire can access the files to investigate and prosecute criminal activity.[35]  Access includes information from police reports, exemplars, and forensic investigations.[36]

How will sealed juvenile records affect a juvenile in the future?

            If a juvenile delinquent commits a crime after reaching the age of majority, the presentence report will reference the offender’s juvenile record.[37]  The criminal sentencing court will consider this information when determining an adult offender’s sentence.[38]  Juvenile delinquency adjudications may also be used as witness impeachment material if the offense would have qualified as impeachment evidence against an adult convicted of the same activity.[39]

Employment

Can juvenile records be viewed for employment purposes?

In New Hampshire, access to a minor’s juvenile records may be granted upon written consent of that minor.[40]  Also, although certain entities are statutorily required to conduct criminal background checks on employees, statutory law only requires the employer to look into criminal convictions.[41]   Since a delinquent adjudication does not result in a criminal conviction, the search will not provide an employer with this information.[42]

Collateral Consequences Affecting Elementary & Secondary Education Students

Can a complaint or charge brought against a juvenile affect elementary or high school education?

Activities that may result in a pupil's suspension or expulsion are enumerated in New Hampshire’s statutes.[43] Although there is no direct statutory authority allowing a school to suspend or expel a student based upon contact with the juvenile justice system, statutory law does give New Hampshire schools access to juvenile records.[44]  Since the school can suspend or expel a student based on the underlying conduct in the records, this access can lead student discipline in an educational institution.[45]

Suspension:  Pupils can be suspended from school for gross misconduct or for neglect or refusal to conform to the reasonable rules of the school.[46] Gross misconduct consists of violence against the person or property of another or activity that poses a threat to the safety of others.[47]

Expulsion: Pupils can be expelled for the same activities that lead to suspension. Additionally, an expulsion can result from the possession of a gun or an act of “theft,” “destruction,” or “violence”.[48] Acts that fall within these categories include homicide, arson, burglary, or felonious sexual assault.[49]

Collateral Consequences to Receipt of Public Benefits & Privileges

Can a juvenile record (or a household member’s juvenile record) affect eligibility for public housing?

There is no statutory authority granting local housing authorities access to juvenile records.

However, housing authority applications inquire whether the applicant or a member of his household has ever been arrested or a participant in a drug related offense.[50]  The application for housing assistance vouchers asks two questions that may lead an individual to reveal a juvenile adjudication or arrest.[51]  First, the application asks, “have you or anyone in your household ever participated in, been arrested for, or convicted of, a drug relate crime?”[52]  Secondly, the application asks, “have you or anyone in your household ever engaged in a violent act, or been arrested for, or convicted of participating in a violent crime.”[53]  Because the questions also relate to underlying acts, answers may disclose prior juvenile adjudications, arrests, or other court involvement.

Can an arrest or an adjudication of a juvenile household member result in a family being evicted from public housing?         

       A lessor may terminate a rental agreement for any behavior of the tenant or tenant’s family member that adversely affects the health and safety of the other tenants, the landlord, or landlord’s representatives.[54] The rental agreement may also be terminated for any other “good cause”.[55] Because of the Anti-Drug Abuse Act, local public housing authorities also have discretion to terminate the lease of a tenant when a member of the household or a guest is engaged in drug related activity.[56] Termination can occur regardless of whether the tenant knew, or should have known, of the drug-related conduct.[57]

Can a juvenile record affect a juvenile’s driver’s license or permit?

            Any person under the age of twenty-one who is found to be a delinquent for an offense involving the sale, possession, or use of alcohol or a controlled substance may have a driver’s license revoked or denied at the discretion of the court.[58] Disqualification periods range from ninety days to a maximum of one year for the first adjudication.[59] For a subsequent adjudication, disqualification periods range from six months to two years.[60]

            If the juvenile is under the age of eighteen and adjudicated delinquent for a drug or alcohol offense, the juvenile’s license will be revoked or denied for a mandatory period of at least one year and a maximum period of up to five years.[61] In the case of license denials, the disqualification period begins on the date the juvenile would have otherwise been eligible to receive a license.[62]

Special Offender Registries

Are juveniles required to register as sex offenders?

            If a minor commits a sex offense, and the court finds that the minor presents a risk to public safety, it can order the minor to register as a sex offender or offender against children until the juvenile reaches the age of seventeen.[63]

Who has access to the sex offender registry?

            Information regarding juvenile sex offenders can be accessed by law enforcement agencies.[64] These agencies may disclose this information, as necessary, to perform valid law enforcement functions.[65] Each sex offender also has the ability to access personal records.[66]  There is a publicly available list of sex offenders, but it does not include juveniles adjudicated delinquent for sexual offenses.[67]

[1] N.H. Rev. Stat. Ann. § 169-B:35 (2010).
[2] Id.
[3] N.H. Rev. Stat. Ann. § 169-B:2 (2010).
[4] See Id.
[5] Id.
[6] See State v. Lefebvre, 91 N.H. 382, 20 A.2d 185, 187 (1941).
[7] State v. Lemelin, 101 N.H. 404, 144 A.2d 916, 918 (1958).
[8] See Lefebvre, 20 A.2d, 187.
[9] N.H. Rev. Stat. Ann. § 169-B:24 (2010).
[10] Id.
[11] Id.
[12] Id.
[13] N.H. Rev. Stat. Ann. § 169-B:24 (2010).
[14] N.H. Rev. Stat. Ann. § 169-B:27 (2010).
[15] N.H. Rev. Stat. Ann. § 169-B:32 (2010).
[16]Wellington v. Comm'r, New Hampshire Dept. of Corr., 140 N.H. 399, 666 A.2d 969, 972 (1995).
[17] Id.
[18] State v. Sharkey, 155 N.H. 638, 927 A.2d 519, 523 (2007)
[19] N.H. Rev. Stat. Ann. § 169-B:37 (2010).
[20] Id.
[21] Id.
[22] Id.
[23] N.H. Rev. Stat. Ann. § 169-B:46 (2010).
[24] Id.
[25] N.H. Rev. Stat. Ann. § 169-B:36 (2010).
[26] N.H. Rev. Stat. Ann. § 169-B:35 (2010).
[27] N.H. Code Admin. R. Ann. He-C 6339.03(ac) (2010).
[28] N.H. Rev. Stat. Ann. § 169-B:35 (2010).
[29] Id.
[30] Id.
[31] Id.
[32] N.H. Rev. Stat. Ann. § 169-B:35-a (2010).
[33] Id.
[34] N.H. Rev. Stat. Ann. § 169-B:35 (2010).
[35] Id.
[36] Id.
[37] State v. Oxley, 127 N.H. 407, 503 A.2d 756 (1985).
[38] Id
[39] N.H. R. Evid. 609.
[40] N.H. Rev. Stat. Ann. § 169-B:35 (2010).; See also 1984 WL 248871 (N.H.A.G. Oct. 5, 1984)
[41] See N.H. Rev. Stat. Ann. § 151:2-d (2010)
[42] See State v. Lemelin, 101 N.H. 404, 144 A.2d 916 (1958).
[43] N.H. Rev. Stat. Ann. § 193:13 (2010).
[44]N.H. Rev. Stat. Ann. § 193-D:7 (2010).
[45] N.H. Rev. Stat. Ann. §. 193:13 (2010).
[46] Id.
[47] N.H. Code Admin. R. Ann., Ed 317.02 (2010).
[48] N.H. Rev. Stat. Ann.. §.. 193:13 (2010).
[49] N.H. Rev. Stat. Ann. § 193-D:1 (2010).
[50] New Hampshire Housing Finance Authority, http://www.nhhfa.org/rent_docs/2010rentapp.pdf (last visited September 13, 2010).
[51] New Hampshire Housing Finance Authority, http://www.nhhfa.org/rent_docs/2010rentapp.pdf(last visited on September 13, 2010).
[52] See Id.
[53] See Id.
[54] N.H. Rev. Stat. Ann. § 540:2 (2010).
[55] Id.
[56] Dep't of Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 122 S. Ct. 1230, 152 L. Ed. 2d 258 (2002); United States Housing Act of 1937, § 6(l)(6), as amended, 42 U.S.C. § 1437d( l)(6) (2010).
[57]Id.
[58] N.H. Rev. Stat. Ann. § 263:56-b (2010).
[59] Id.
[60] Id.
[61] Id.
[62] Id.
[63] N.H. Rev. Stat. Ann. § 169-B:19 (2010).
[64] See N.H. Rev. Stat. Ann. § 651-B:7 (2010).
[65] Id.
[66] Id.
[67] Id.