15th Mar 2017
Criminal expungement is the process of going to court to ask a judge to seal a court record. An expungement is when the court seals an individual’s criminal arrest and court record. The benefit of an expungement is that the sealed criminal records would not be seen during a criminal background check.
In 2015, Minnesota expanded its expungement law. Under the new “second chance” law, more Minnesotans are eligible for an expungement. Not all offenses and records are eligible for expungement. Only certain types of felonies are eligible for expungement. Someone with a criminal record may be eligible for an expungement based on how much time has passed since the sentence was discharged, the type of crime they were convicted of, and their criminal history.
The law states that expungements may be granted in the following situations:
1. Certain drug possession offenses resolved under specific statutes;
2. Juveniles prosecuted as an adult;
3. All criminal proceedings were resolved in the petitioner’s favor – meaning there was never an admission or finding of guilt, even if the charges were eventually dismissed;
4. The petitioner successfully completed the terms of a diversion program or stay of adjudication and has not been charged with a new crime for at least one year since completion of the diversion program or stay of adjudication;
5. The petitioner was convicted of a petty misdemeanor or misdemeanor and has not been convicted of a new crime for at least two years since discharge of the sentence;
6. The petitioner was convicted of a gross misdemeanor and has not been convicted of a new crime for at least four years since discharge of the sentence; and
7. The petitioner was convicted of specified felonies and has not been convicted of a new crime for at least five years since discharge of the sentence.
Frequently, the petitioner carries the burden of proving by clear and convincing evidence that the expungement would yield a benefit to the petitioner commensurate with the disadvantages to the public and public safety. In some instances, the burden switches to the state.
Expunging criminal records involves a balance between competing interests. For individuals with a criminal record the hope is to pursue employment, housing and other major life activities without the stigma of an arrest or conviction record. On the other hand, the state and society generally have an interest in maintaining criminal histories for purposes of future investigations and in order to make hiring, rental, and other decisions about individuals.
In reviewing a petition for expungement, the court will consider the following factors:
1. The nature and severity of the underlying crime;
2. The risk the petitioner poses to the public;
3. The length of time since the crime;
4. What rehabilitation steps the petitioner has taken, if any, since the crime;
5. Whether there are any aggravating or mitigating factors of the underlying crime, such as the petitioner’s level of participation, the context, and surrounding circumstances;
6. The reasons the petitioner needs an expungement, including attempts to obtain employment, housing, or other necessities;
7. The petitioner’s entire criminal history;
8. The petitioner’s employment record and community involvement;
9. Any recommendations from the state and its agencies;
10. Any victim input;
11. Whether there is any outstanding restitution and what efforts the petitioner has made to pay it in full; and
12. Other relevant factors.
Certain factors are worth more attention than others. For example, to increase the likelihood of success it is imperative that the petitioner explain and validate the detriment that the criminal record is having on their ability to obtain employment, housing, schooling, and the like.
While the new expungement law makes it easier for individuals to get a second chance, the process for getting an expungement is complex and can be confusing if you try to do it on your own. The expungement process will take at least four months to complete, and likely longer. The petitioner is required to gather information, draft and file a petition with the court, set a hearing date, notify relevant state agencies of the hearing and petition, and participate in an expungement hearing to make their case and respond to any objections made by state agencies.
The assistance of an attorney can be critical to your success. Call Anderson Larson to meet with an attorney who has dealt with the new expungement law and can help you strategize and navigate through Minnesota’s nuanced expungement law.