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Basics on Criminal Expungement

Expungement is the process of going to court to ask a judge to seal a court record. It is important to remember that an expunged record is NOT destroyed. The police, FBI, immigration officers, and other public officials may still see sealed court files for certain purposes. Usually, people ask for an expungement when they have been denied a job, housing, or a professional license because of their criminal background. NOTE: Expungement of Housing Eviction Records is a different type of action.

 

Criminal Records at Government Offices

Many government offices keep criminal records, including, but not limited to:

  • courts have records of all cases that have been filed with the court;
  • police keep records of arrests and investigations;
  • prosecutors have records of criminal cases;
  • agencies like the Dept. of Human Services may keep records; and
  • law enforcement agencies (police, State Patrol, etc.) send records to the MN Bureau of Criminal Apprehension (BCA)
IMPORTANT!
The BCA is a common place for people to do background checks. If your criminal case ended in a conviction, records kept by other government offices, such as the BCA, might not get sealed through an expungement action. Getting an expungement also might not help you from being disqualified to work as a caregiver by the MN Dept. of Human Serivces. You need to decide if the effort and cost of asking for an expungement will benefit you.

What Records Can be Expunged

When the Court Can Expunge All Public Records

In some criminal cases, the court has the authority to seal all government held records of criminal cases, which is sometimes referred to as a “full expungement.” This means that a court can issue an order to seal court records and records at the Bureau of Criminal Apprehension, police departments, corrections and other agencies.

The law in MN Statutes §609A.02 lists the specific situations when a court has the authority to seal all government held records (full expungement). The list includes:

  • some first time drug possession offenses resolved under certain laws;
  • offenses committed by juveniles who were prosecuted in adult criminal court;
  • cases that were resolved in your favor (i.e., you were found not guilty or the case was dismissed); and
  • some other convictions.

Convictions for petty misdemeanors, misdemeanors, and gross misdemeanors may be eligible for full expungement depending on:

  • what crime you were convicted of;
  • how much time has passed since your sentence was discharged; and
  • other cases that are on your criminal history.

Only specific types of felony crimes listed in MN Statutes §609A.02, subd. 3 may qualify for full expungement.

If you have a conviction on your record, you may qualify for a full expungement in the following circumstances:

  1. You successfully completed the terms of a diversion program or stay of adjudication and you have not been charged with a new crime for at least one year since you completed the diversion program or stay of adjudication;
  2. You were convicted of or received a stayed sentence for a petty misdemeanor or misdemeanor and you have not been convicted of a new crime for at least two years since the discharge of the sentence;
  3. If you were convicted of or received a stayed sentence for a gross misdemeanor and you have not been convicted of a new crime for at least four years since the discharge of the sentence;
  4. You were convicted of or received a stayed sentence for a qualifying felony and you have not been convicted of a new crime for at least five years since the discharge of the sentence for the crime.

EXCEPT: A court may not grant full expungement of criminal records if the underlying crime involved domestic abuse or sexual assault, a violation of an order for protection, a harassment restraining order or a domestic abuse no contact order, stalking, or criminal harassment. This exception in the law may expire on July 15, 2015.

When the Court Can Expunge Court Records Only

If you have been convicted of a crime and your case does not fit into the "full expungement" categories listed above, a court may only have the authority to seal its own records. In those situations, there may be a public record of your criminal case at another agency, like the Bureau of Criminal Apprehension. Those records may show up on background checks for employment, licensing or housing even if the court record has been sealed.

Expungement is never allowed in cases where the defendant was required to register as a sex offender, even if the defendant is no longer required to register.

 

No Guarantee of Expungement

There is no guarantee that you will get an expungment, even if your case falls into the specific categories listed above. You must complete the forms and convince the judge that, on balance, the benefit to you from getting an expungement is more than the disadvantage it would be for the public to not have access to your criminal record. The court will have to make a decision about the following factors:

  1. The nature and severity of the underlying crime;
  2. The risk, if any, the petitioner poses to specific people or society;
  3. The length of time since the crime occurred;
  4. The steps petitioner has taken in rehabilitation since the crime;
  5. Aggravating or mitigating factors relating to the underlying crime, including the petitioner’s level of participation and context and circumstances of the underlying crime;
  6. The reasons for the expungement, including the petitioner’s attempts to obtain employment, housing or other necessities;
  7. The petitioner’s complete criminal record;
  8. The petitioner’s record of employment and community involvement;
  9. The recommendations of interested law enforcement, prosecutorial, and corrections officials;
  10. The recommendations of victims or whether victims of the underlying crime were minors;
  11. The amount, if any, of restitution outstanding, past efforts made by the petitioner toward payment, and the measures in place to help ensure completion of restitution payment after expungement of the record if granted;
  12. Other factors deemed relevant by the court.

Expungement involves a lot of work with forms and attention to detail, and it takes at least 4 months to complete the process. If you decide to go forward and request an expungement, be sure that you talk to a lawyer or, at a minimum, that you understand all of the required procedures and that you carefully follow them.

 

Expungement Forms & Fees

You must get the Criminal Expungement Forms and fill them out. Then you make copies of your forms and have another adult serve them for you on the prosecutor and all other government offices who keep criminal records. Correctly serving all the required government offices is usually the most difficult step for people. Make sure you keep a photocopy of your completed forms for yourself.

Proof of Service Form EXP104 IMPORTANT STEP: Use the Proof of Service Form #EXP104 to serve your expungement forms on the required government offices.

Then file the original forms with the court and pay the filing fee. The filing fee may be waived if your criminal case was dismissed. If you are low income, you may also ask for a fee waiver.

 

Getting Help from a Lawyer

You can ask for an expungement on your own, but it is best to try to get a lawyer's help. If you qualify based on low income, you may be eligible for help from legal aid offices or volunteer attorneys. You also have the right to talk to or hire a private attorney. If free legal help is not available to you and you cannot afford to hire an attorney, you may choose to represent yourself.

 

The Court Hearing

You must go to a hearing in court to ask for expungement, unless you get a notice from the court that tells you that you do not have to attend a hearing. On the day of your hearing, you have an opportunity to tell the judge why you need the expungement. The government offices you served with copies have the right to object to an expungement at any time before OR at the hearing. If they object before the hearing, they often send a letter to the judge and send you a copy of the letter. An objection does NOT mean that your expungement will be denied.

You should be prepared to respond to concerns raised by any objecting party when you talk with the judge, and you can respond to any objections made by any party at the hearing. The judge will then decide whether or not to expunge your record, and the court will send you a notice of the decision. If the judge grants the expungement, there is a 60 day waiting period before the records can be officially sealed.

Check with your District Court to see where your hearing will be located. Usually only one hearing is held in an expungement case.

Appearing in court is a very important part of a case, and all parties are expected to arrive early, dress properly, and act respectfully. Read "Tips for Your Day in Court" on how to prepare for your court hearing.

 

Arrest Records Only

If you were only arrested but not charged with a crime, there will not be a court record for that event. Law enforcement agencies and the BCA, however, may have records of the arrest. There is a non-court process for sealing arrest records. See Expunge Arrest Records for more details.

 

Pardons

The MN Board of Pardons is governed by the law at MN Statutes Ch. 638, and its members include the

The board has the power to grant pardons in certain criminal cases under certain conditions. If you have questions about the pardon application process, you may contact the Board of Pardons office at (651) 361-7171. This is not a court process, so if you need help asking for a pardon, you should talk with a lawyer.

 

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