Minnesota Expungement Lawyer

New Expungement Law Effective January 1, 2015

*****New Law Governing Expungement (Sealing) of Criminal Records*****

Call us at (612) 465-8580 for a free consultation to determine if this new law can benefit you. 

On May 14, 2014, Governor Dayton signed into law significant and important changes to laws governing expungement of criminal records.

Prior to the new law, years of litigation surrounded the question of whether a Court could order an executive branch agency (BCA, DHS, Etc.) to seal a criminal record.

In most cases, the Court was not allowed to expunge executive branch records. The new law fixes this problem and allows Courts to order executive branch agencies to seal their records.  Executive branch agencies include:

  • The Bureau of Criminal Apprehension (“BCA”);
  • The Minnesota Department of Human Services (“DHS”);
  • The Minnesota Department of Health (“MDH”);
  • Police departments;
  • City and county attorneys’ offices;
  • The Attorney General’s Office;
  • The Board of Teaching; and
  • County Sheriff’s offices.

This is the change we have been waiting for! To read the complete bill, click here.

What Are the Benefits of the New Expungement Law?

The new law provides meaningful relief to individuals because the Court is able to seal both judicial and executive branch records.

The new law gives individuals a chance to seal all records held by any agency. This is a huge change and will help a lot of people.

Employers and landlords frequently investigate an applicant’s criminal background as part of the hiring/leasing process.  Individuals with criminal histories may be rejected from employment or housing because of the existence of these records, even if a charge was dismissed or the individual is rehabilitated.  When a Court orders criminal records expunged, it means the records are sealed from public access.  If a Court Orders expungement of records held by the judicial branch, it means that the individual’s criminal record cannot be viewed or accessed through the state court website or at the Courthouse.  If a Court Orders expungement of records held by the executive branch, it means that the individual’s criminal record generally cannot be viewed or accessed at any of the above-listed agencies, so long as the expungement Order is directed to that particular agency.  An individual with a criminal background will likely face less obstacles in obtaining employment and/or housing if both executive branch and judicial branch records are expunged.

Do you qualify for relief under the new law?

Whether you qualify for an expungement under the new law depends on your particular case and we recommend that you consult with an attorney regarding the specifics of your criminal history.

The new law will allow you to seek expungement of both judicial branch and executive branch records in the following case types:

Petty Misdemeanor:

A conviction or stayed sentence for a petty misdemeanor or misdemeanor so long as you have not been convicted of a new crime for at least two years since discharge of the sentence for the crime, except for cases involving:

  • Domestic abuse or sexual assault;
  • Violation of an order for protection;
  • Violation of a harassment restraining order;
  • Stalking; or
  • Violation of a domestic no contact order (“DANCO”).

Gross Misdemeanor:

A conviction or stayed sentence for a gross misdemeanor so long as you have not been convicted of a new crime for at least four years since discharge of the sentence for the crime except for cases involving:

  • Domestic abuse or sexual assault;
  • Violation of an order for protection;
  • Violation of a harassment restraining order;
  • Stalking; or
  • Violation of a domestic no contact order (“DANCO”).

Felony:

A conviction or stayed sentence for a felony listed in the new law, so long as you have not been convicted of a new crime for at least five years since discharge of the sentence for the crime.  Some of the felonies listed as eligible for expungement under the new law are:

  • Certain felony theft offenses;
  • Receiving stolen goods;
  • Dishonored check over $500;
  • Criminal damage to property;
  • Financial transaction card fraud;
  • Computer theft; and
  • Certain forgery offenses.

What factors must the court consider?

In considering your request for expungement, the Judge will apply the following factors to determine whether the benefit of an expungement to you outweighs the risk to the public:

  1. The nature and severity of the underlying crime, the record of which would be sealed;
  2. The risk, if any, the petitioner poses to individuals or society;
  3. The length of time since the crime occurred;
  4. The steps taken by the petitioner toward rehabilitation following 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 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 crimes 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; and
  12. Other factors deemed relevant to the court.

Can you file for expungement of an offense that does not qualify for relief under the new law?

You could still ask the Court to expunge your record based upon the Court’s “inherent authority.”  You will be required to show by clear and convincing evidence that the benefit of an expungement to you outweighs the disadvantages to the public and public safety of sealing the record and burdening the court and public authorities to issue, enforce, and monitor an expungement order.  If the Court grants your request, the Court will likely only order sealing of judicial branch records, leaving your executive branch records publicly available.

Be aware that the law prohibits expungement of convictions for offenses for which registration as a predatory offender is required.

SPECIAL CASE: DOMESTIC ABUSE OR SEXUAL ASSAULT

For at least a short time, the Court will not have the authority to expunge judicial and executive branch records of any crime involving domestic abuse or sexual assault, or a violation of an order for protection, violation of a harassment restraining order, or violation of a domestic no contact order.  The new law prohibits sealing of these records, but that limitation expires on July 15, 2015.  We expect that additional legislation will be enacted next year addressing expungement of these types of cases.

EXPUNGEMENT OF JUVENILE RECORDS

Do not assume that a juvenile record is sealed and hidden from view.  There are several scenarios in which a juvenile record is accessed.  For example, the Department of Human Services reviews juvenile court records in background studies.  Additionally, juvenile felony offenses committed after age 16 are public records.

The new law, effective January 1, 2015, allows for sealing of “all records” relating to delinquency at any time if the court determines that expungement of the record would yield a benefit to the subject of the record that outweighs the detriment to the public and public safety in sealing the record and the burden on the court and public agencies or jurisdictions in issuing, enforcing, and monitoring the order.  In making this determination, the Court considers eight separate factors.

Prior to the new law, the Court’s authority to seal executive branch records was in question after the Minnesota Supreme Court’s decision in In re the Welfare of J.J.P. (Jon Geffen of Arneson & Geffen represented the expungement petitioner in this matter before the State’s high court).  Now, as of January 1, 2015, the Court will have the authority to seal all records.  Additionally, the new law does not impose any waiting periods, nor does it restrict expungement of felonies to a particular list.  Last, we observe that the juvenile expungement statute does not prohibit expungement of offenses for which registration is required.

Contact us at (612) 465-8580 to discuss petitioning for sealing of your juvenile court record.