CRIMINAL EXPUNGEMENTS Understanding the Process Law Office of Rosalind R. Sullivan Singletree Lane, Suite 137 Eden Prairie, MN Phone:

What is a Criminal Record? Documented history of being convicted or charged with a crime Documented history of being convicted or charged with a crime Documented history of a person’s previous criminal convictions/charges Documented history of a person’s previous criminal convictions/charges This includes arrest, citation, formal charge, or a diversionary program. All of these can create a criminal record. This includes arrest, citation, formal charge, or a diversionary program. All of these can create a criminal record. This includes all felonies, gross misdemeanors and misdemeanors ever charged against you in MN. This includes all felonies, gross misdemeanors and misdemeanors ever charged against you in MN.

Where are the records held? County Courthouse County Courthouse Where you were charged Where you were charged Police/Sheriff’s Department Police/Sheriff’s Department City/County Prosecutor’s Office City/County Prosecutor’s Office State/County Corrections State/County Corrections Bureau of Criminal Apprehension (BCA) Bureau of Criminal Apprehension (BCA) State Licensing Agencies (e.g. Dept Human Services). State Licensing Agencies (e.g. Dept Human Services).

Public Record Conviction Conviction Never charged Never charged Dismissal Dismissal Acquittal Acquittal Pardon Pardon Successful completion of a diversionary program Successful completion of a diversionary program Juveniles charged at 16 or 17 w/ a felony- regardless of outcome. Juveniles charged at 16 or 17 w/ a felony- regardless of outcome.

What is an Expungement? The sealing of a persons criminal record The sealing of a persons criminal record An expunged record is not destroyed. It simply means its invisible to the public. An expunged record is not destroyed. It simply means its invisible to the public. It can mean a return of records (arrest). It can mean a return of records (arrest). Two main types of Expungements: Two main types of Expungements: Statutory Statutory Inherent Authority: also called “Judicial Discretion” Inherent Authority: also called “Judicial Discretion” Juvenile Juvenile Usually goes through the same process as adults. Usually goes through the same process as adults.

Why Seek an Expungement? Criminal records can affect a person’s ability to: Criminal records can affect a person’s ability to: Obtain housing Obtain housing Obtain employment Obtain employment Apply for student loans Apply for student loans Obtain credit Obtain credit Certificate of rehabilitation Certificate of rehabilitation

Laws Governing Expungement (1) Minn. Stat. 609A – Applies to all criminal records maintained by agencies in the criminal justice system. (2) Minn. Stat 299C.11 – Governs arrest records maintained by law enforcement agencies

Minn. Stat. 299C.11 Law allows arrest records resulting in a no probable cause finding to be returned to the party if: No felony conviction or gross misdemeanor in the preceding 10 years No felony conviction or gross misdemeanor in the preceding 10 years All proceedings pending determined in favor of arrested person and either; All proceedings pending determined in favor of arrested person and either; Charges were dismissed before PC determination; or Charges were dismissed before PC determination; or Prosecutor declined to file charges/no grand jury indictment Prosecutor declined to file charges/no grand jury indictment

Minn. Stat. 609A Under this law, criminal records can be sealed under certain circumstances. Sealing means that the agency maintaining the records may not disclose their existence unless ordered to do so by the court.

Minn. Stat. 609A Exceptions: Exceptions: (1) DNA samples held by the BCA in criminal proceeding supported by probable cause (2) Expunged records can be reopened by court order for subsequent criminal investigation, prosecution or sentencing and (3) May be reopened without a court order if subject applying for a job with a criminal justice agency

Minn. Stat. 609A Actions that may be expunged. Some Convictions Some Convictions Cases not Resulting in Convictions (Non- Convictions) Cases not Resulting in Convictions (Non- Convictions) Other limited cases Other limited cases

Minn. Stat. 609A Minn. Stat. 609A Convictions Eligible for Expungement Certain Controlled Substance Offenders If conviction stayed adjudication of the person’s guilt (probation/diversionary program) Charges dismissed after successful completion of probation Juveniles Prosecuted as Adults If person committed to custody and discharged or placed on probation and completed it successfully.

Minn. Stat. 609A Resolved in Favor Resolved in Favor Non- convictions: you should be able to request an expungement Non- convictions: you should be able to request an expungement Found not guilty: acquittal. Found not guilty: acquittal. Did not plead guilty Did not plead guilty Completed a diversionary program without guilty plea and charges were dismissed. Completed a diversionary program without guilty plea and charges were dismissed. Presumption of Resolved in Favor Presumption of Resolved in Favor Expungement usually granted Expungement usually granted Not Resolved in Favor Not Resolved in Favor Plead or found guilty even with stay of adjudication or stay of imposition. Plead or found guilty even with stay of adjudication or stay of imposition. Expungement is still possible. Expungement is still possible.

Minn. Stat. 609A Individuals Barred from Seeking Expungements Sex Offenders Sex Offenders Murder while committing forcible criminal sexual conduct Murder while committing forcible criminal sexual conduct Kidnapping Kidnapping Felony-level criminal sexual conduct Felony-level criminal sexual conduct Other sex related offenses Other sex related offenses Other serious crimes involving victims are usually not granted even if judge has discretion under the law Other serious crimes involving victims are usually not granted even if judge has discretion under the law

County Attorney Perspective Jada N. Lewis Law Clerk to the Honorable Tanya Bransford

Minn. Stat. 609.A Expungement Calendar Expungement Calendar Rehabilitation Statement Rehabilitation Statement Clean record Clean record Benefit outweighs disadvantage to the public Benefit outweighs disadvantage to the public

Factors Used County Attorney Perspective The extent that the Petitioner has shown difficulties in getting a job or housing as a result of the criminal record. The extent that the Petitioner has shown difficulties in getting a job or housing as a result of the criminal record. The seriousness and nature of the offense. The seriousness and nature of the offense. The potential risk to the public’s right to access the records. The potential risk to the public’s right to access the records. Any additional offenses and rehabilitation efforts since the offense Any additional offenses and rehabilitation efforts since the offense Other evidence of hardship under the circumstances Other evidence of hardship under the circumstances

County Attorney Perspective Example of Sample Answer Example of Sample Answer Objecting to Expungement Request Objecting to Expungement Request Reasons for not Objecting to Expungement Request Reasons for not Objecting to Expungement Request

Judge’s Role The Honorable James A. Cunningham Anoka County District Court

Balancing of Interests The Expungement process seeks to balance the competing interests of Those seeking to “seal” potentially damaging information Those seeking to “seal” potentially damaging informationv.s. Those who seek to discover the information to make hiring and other major decisions

Statutory Expungements Minn. Stat. 609A Non-Convictions Non-convictions are any actions found to be resolved in favor of the defendant. These are called presumptive and must be expunged upon request. Acquittal after trial Acquittal after trial Completed diversionary program and no guilty plea or admission of guilt, dismissal of charges after completion Completed diversionary program and no guilty plea or admission of guilt, dismissal of charges after completion

Statutory Expungements “Resolved in Favor” Dismissals and acquittals Dismissals and acquittals Dismissal of grand jury indictment Dismissal of grand jury indictment Dismissed separate incidents/charges where petitioner plead guilty to other separate incidents/charges. Dismissed separate incidents/charges where petitioner plead guilty to other separate incidents/charges. Continuances for dismissal, where no guilty plea was entered. Continuances for dismissal, where no guilty plea was entered. Pre trial diversion- no guilty plea Pre trial diversion- no guilty plea Arrest w/out charges (where not otherwise eligible under 299C.11) Arrest w/out charges (where not otherwise eligible under 299C.11) Never pleading guilty, admitting guilt or being found guilty. Never pleading guilty, admitting guilt or being found guilty.

Presumption of Resolved in Favor A case resolved in favor of the defendant is an expungement that can usually be granted unless by clear and convincing evidence the interests of the public and public safety outweighs the disadvantages to the petitioner in not sealing the record. A case resolved in favor of the defendant is an expungement that can usually be granted unless by clear and convincing evidence the interests of the public and public safety outweighs the disadvantages to the petitioner in not sealing the record.

Inherent Authority “Not Resolved in Favor” Found guilty, pleading guilty even if plea is not accepted by the court Found guilty, pleading guilty even if plea is not accepted by the court Admission of guilt as a condition to enter a diversionary program Admission of guilt as a condition to enter a diversionary program Deferred guilty pleas Deferred guilty pleas Not guilty by reason of mental defect or disease Not guilty by reason of mental defect or disease Dismissed after pleading guilty and completing probation Dismissed after pleading guilty and completing probation Stay of adjudication and stay of imposition Stay of adjudication and stay of imposition Alford plea Alford plea

Factors Used The extent that the Petitioner has shown difficulties in getting a job or housing as a result of the criminal record. The extent that the Petitioner has shown difficulties in getting a job or housing as a result of the criminal record. The seriousness and nature of the offense. The seriousness and nature of the offense. The potential risk to the public’s right to access the records. The potential risk to the public’s right to access the records. Any additional offenses and rehabilitation efforts since the offense Any additional offenses and rehabilitation efforts since the offense Other evidence of hardship under the circumstances Other evidence of hardship under the circumstances

Judicial Limitations The law limits Judge’s power to expunge court records only The law limits Judge’s power to expunge court records only Only the court records are sealed. The MN BCA will still have a record of your criminal history but the “public record” will be expunged. Only the court records are sealed. The MN BCA will still have a record of your criminal history but the “public record” will be expunged. All other records (police, prosecutor) are outside the scope of courts expungement orders All other records (police, prosecutor) are outside the scope of courts expungement orders

Court’s Inherent Judicial Power When records cannot be expunged under statute the court may expunge under it inherent judicial power to be used when a petitioner’s constitutional rights may be violated OR the expungement will benefit the petitioner using the balancing test discussed previously When records cannot be expunged under statute the court may expunge under it inherent judicial power to be used when a petitioner’s constitutional rights may be violated OR the expungement will benefit the petitioner using the balancing test discussed previously

Application Process Shanika S. Alston, Esq. Law Office of Rosalind R. Sullivan

The Application Process Step-by-Step Obtain a Petition (Packet) Depending on the county, expungement packets are available at the self help service center at the court house. The forms are also available online at

Criminal Case History Printouts Printout from the county courthouse Printout from the county courthouse If you have a criminal case in more than one county, contact each county to get a copy of your case history If you have a criminal case in more than one county, contact each county to get a copy of your case history Get a printout from the BCA Get a printout from the BCA Online BCA record search Online BCA record search Visit or mail request Visit or mail request Minnesota Bureau of Criminal Apprehension Minnesota Bureau of Criminal Apprehension 1430 Maryland Ave, CJIS Section St. Paul, MN (651)

Forms Needed Notice of Hearing and Petition Notice to Crime Victim (if applicable) Affidavit of Service Appropriate Order (Conviction or No Conviction

The Petition Notice of Hearing is usually at the beginning. Notice of Hearing is usually at the beginning. Fill out all the information completely before obtaining a date. Fill out all the information completely before obtaining a date. When all documents are ready, call to obtain a court date at least 65 days from the date you plan to have the petition served. It must be received less than 60 days from the date of the hearing so give yourself adequate time. When all documents are ready, call to obtain a court date at least 65 days from the date you plan to have the petition served. It must be received less than 60 days from the date of the hearing so give yourself adequate time.

The Petition List all names and alias used List all names and alias used Full disclosure of entire criminal record, in any state or country Full disclosure of entire criminal record, in any state or country Addresses from time of first offense. Addresses from time of first offense. Obtain a Criminal background from the applicable county and the BCA. This will be necessary to complete criminal record information Obtain a Criminal background from the applicable county and the BCA. This will be necessary to complete criminal record information Reasons for seeking an expungement Reasons for seeking an expungement Rehabilitative Statement Rehabilitative Statement Supporting Evidence (rejection letters, affidavits of support) Supporting Evidence (rejection letters, affidavits of support) Identify the victim, if any Identify the victim, if any

Notice to Crime Victim This form must be completed to allow the crime victim to object to the expungement and be allowed to be involved in the process if desired. This form must be completed to allow the crime victim to object to the expungement and be allowed to be involved in the process if desired.

Affidavit of Service The document must be served by an adult (NOT you). The document must be served by an adult (NOT you). The parties served have the right to object or do nothing. The parties served have the right to object or do nothing. The parties to be served included The parties to be served included MN Attorney General MN Attorney General BCA BCA County Attorney or City Attorney County Attorney or City Attorney Police Department Police Department Victim Victim

Order T The order is the order that you want the judge to sign. The judge may have his or her own format that they wish to follow. If not, he or she will sign the one that you submit. The order must be served along with the other documents. Once signed the order is stayed for 60 days to allow for appeals.

Other Information Each court has its own procedure Each court has its own procedure Some courts charge for the information packet Some courts charge for the information packet Some courts have a specific set of judges that handle expungements and others require you to request a hearing date with the judge who last heard your case. Some courts have a specific set of judges that handle expungements and others require you to request a hearing date with the judge who last heard your case.

What will it Cost? Copies of documents Copies of documents Filing Fees Filing Fees Service of Process Service of Process Copy of Final Order Copy of Final Order IFP IFP No filing fee for non-convictions No filing fee for non-convictions

NO Guarantee There is no guarantee that an expungement will be granted. There is no guarantee that an expungement will be granted. You will need to complete the paperwork and convince the Judge and prove that: You will need to complete the paperwork and convince the Judge and prove that: You’ve been denied work, housing, or a professional license because of your record. You’ve been denied work, housing, or a professional license because of your record. Sealing your record will not negatively affect public safety Sealing your record will not negatively affect public safety You have rehabilitated yourself. You have rehabilitated yourself.

Court Hearing Be mindful that it takes up to four months to complete this process. Be mindful that it takes up to four months to complete this process. Tell the judge why you need an expungement Tell the judge why you need an expungement The people you serve have the right to object before or at the hearing The people you serve have the right to object before or at the hearing You can respond to the objections (if any) You can respond to the objections (if any) The Judge will decide whether or not to expunge your record. The Judge will decide whether or not to expunge your record. 60 day waiting period before that record is sealed. 60 day waiting period before that record is sealed.

How Do I find More Information Visit State Court Website Visit District Court Website Self Help Service Centers Contact an attorney

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