Rhode Island Criminal Misdemeanor Law from A-Z | RI Criminal Lawyer

This Rhode Island criminal misdemeanor law article article was authored by a Rhode Island criminal defense lawyer, David Slepkow. David was voted a best 3 lawyer in Rhode Island in 2018 by the Providence Journal Reader’s choice award poll.

What is a Rhode Island Criminal Misdemeanor?

Criminal lawyer RI

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 a 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, by a RI criminal lawyer, 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 so that the person can be released.

It is usually not advisable for a person to give a statement to the police without a Rhode Island criminal defense Lawyer. 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 or she is released from police custody. A Rhode Island criminal attorney will fight for your rights and make sure you get justice.

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 violator 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 personal recognizance in RI criminal law?

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 at an arraignment.
For minor misdemeanor offenses, bail is usually personal recognizance which means the person does not have to pay any actual funds.
A defendant released on personal recognizance, must promise that he 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!
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 must pay 10 percent of that amount or post property valued at the full amount.
If a person cannot 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 must stand trial on the new charges. Please see below for more information

What is the most advisable plea at an arraignment for a misdemeanor 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.
If a Defendant will be held at the arraignment for 10 business days as a violator, the Defendant may have no choice to plead nolo and be released.

Pretrial conference

What happens at the pretrial conference?

At the pretrial conference a defendant can change their plea from not guilty to nolo contendere if they agree to the sentence offered by the prosecutor. These plea negotiations usually occur after defendant’s Rhode Island criminal defense lawyer meets 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 / city solicitor 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 and a recommended sentence from the prosecutor.

Pleas

What types of pleas are there in Rhode Island?

Not guilty
Guilty (this almost never happens since a person can plea Nolo Contendere.
Alfred plea
Nolo Contendere

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 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.

What is a 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.
The accused 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!
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 than a fine.
All misdemeanor plea agreements in Rhode Island should be nolo contendere with court costs or a contribution towards the victim’s indemnity fund rather than guilty pleas!

What is an Alfred Plea?

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 enough evidence to convict him or her if the case went to trial but will not admit to anything.

Can I appeal a Guilty Finding after a misdemeanor trial in District Court?

If the defendant is found guilty by a judge after trial, the sentence will constitute a conviction.
If an accused is found guilty at trial in District Court they can appeal de novo (of new) to the Superior Court.
The accused has two days to appeal the guilty verdict.
When the appeal is filed, the conviction will be erased and the case will essentially start all over again in the Superior Court.
The Defendant shall be entitled to either a judge or a jury trial in 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 are found guilty after trial, 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 may be “filed” for a year.
Typically for low lever misdemeanors and first time offenses although a person can have more than 1 filing.
This is commonly called a “filing” or a “one year filing.”
If the defendant does not get arrested for a new charge, violate the terms of the filing or get in other trouble during the one-year period then the case is dismissed
When the case is dismissed itcan be easily expunged from a person’s record after the year.
Domestic filings can not be expunged until 2 years after the filing is completed.

What is a not guilty filing in Rhode Island?

There are two types of filings, not guilty filings, guilt 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 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.

What happens if a Defendant violates the conditions of a filing in Rhode Island?

If the person violates his filing by not complying with the conditions of the filing then the defendant’s 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
If the filing was a ‘not guilty filing’ s the prosecution must prove the defendant’s guilt on the original old charge.
The Defendant will also face charges of violating the filing.
There will be a filing violation hearing 10 business days after the arraignment. At that hearing, the Court will determine whether the Defendant violated the filing.
If a person is found by the Judge to have violated the filing, he will be sentenced on the original ‘old’ charge and sentenced on the violation
It is possible, that the person at the arraignment could be held in jail for the 10 business days until the violation hearing

There are various conditions that can be put on a filing including alcohol and drug counseling, domestic violence counseling or classes, restitution, no contact with the victim and community service. Please note, that a person who has a filing can be held for up to ten business 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.

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. 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. A person who takes a nolo plea or is found guilty will be ordered to do batters intervention classes.

Probation in Rhode Island

What happens if a Defendant violates probation in Rhode Island?

If a person is sentenced to 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 is accused of violating his probation by being arrested for a new crime, then the defendant may be held in Jail at the ACI as a probation violator.
After ten business days a person has the right to a probation violation hearing.
At the probation violation hearing, the prosecutor must only convince the judge so that the judge believes that by a fair preponderance of the evidence 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!

Can a defendant on probation be violated for infractions that may not be criminal acts?

A criminal Defendant may be violated for non criminal offense which violates the conditions of probatiom
A criminal Defendant may be violated for not keeping probation informed of a new address.
A criminal Defendant may be violated for leaving the state without permission.
A criminal Defendant may be violated for not paying court costs or restitution
A criminal Defendant may be violated for not properly reporting to the probation officer.
A criminal Defendant may be violated for not keeping the peace and being of good behavior.

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?

A suspended sentence is always a conviction under Rhode Island law.
A person with probation and a suspended sentence attached will not spend any time in prison fo that charge unless the person violates the conditions of his probation.
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
The Defendant could get additional sentence and or penalties as a result of the new charge.

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! It is in the defendant’s 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.

Most prosecutors and judges believe that each sentence should be more severe than 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.

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 criminal defendant 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 violation of a no contact order is a separate criminal offense as well as a probation/ bail / filing violation.

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 result 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- RI criminal attorney

In Rhode Island, any plea to drunk driving 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.”

Rhode Island General Laws – Criminal Offenses This is the Rhode Island statutes (Title 11) concerning criminal offenses.

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