More Minnesotans Eligible to Have Criminal Records Sealed

On May 14, 2014 Governor Mark Dayton signed H.F. 2576, a bill that revamped Minnesota’s expungement laws. What will this mean for Minnesotans who have a criminal record? The new law gives courts the power to do two things: (1) grant expungement of convictions for a much greater number of crimes; and (2) order the sealing of records held by the Bureau of Criminal Apprehension (BCA) and other Executive Branch agencies. To find out if the new law applies to you or a loved one, contact a criminal defense attorney who specializes in expungement. As the Legislative Chair for the Minnesota Association of Criminal Defense Lawyers, Brock Hunter was part of the year-long effort to reform Minnesota’s broken expungement law that resulted in this new legislation. Brock is available today for a free consultation on the new expungement law. For a free consultation about your expungement, call the criminal defense attorneys at Brockton D. Hunter, P.A. at (612) 979-1112.

What is Expungement?

An expungement is an order signed by a judge that requires criminal records regarding arrest, indictment or information, trial or verdict be sealed. Sealing records means that the records may not be disclosed or opened. This DOES NOT mean the records are destroyed. In fact, the new law sets out several circumstances in which expunged records may be disclosed or opened. For instance, the records may be opened when a person is under criminal investigation, or when a criminal justice agency is evaluating a prospective employee. However, taken as a whole the law is a big step forward for people who have paid their debt to society and wish to move forward with their lives.

Who Can Take Advantage of the New Law?

The new laws become effective on January 1, 2015, and they will be part of an existing framework. Minnesota already has an expungement law, Minn. Stat. 609A.02, but it limits expungements to certain drug charges, juveniles who were prosecuted as adults, and criminal proceedings that did not result in convictions (i.e. acquittals or dropped charges). Now, people who have successfully completed diversion programs and people who were convicted of petty misdemeanors, misdemeanors, gross misdemeanors and felonies, can also petition the court for expungement. You may request an expungement in these circumstances:

  • If you’ve successfully completed terms of a diversion program or stay of adjudication and have not been charged with a new crime for 1 year
  • If you’ve been 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 2 years
  • If you’ve been convicted of or received a stayed sentence for a gross misdemeanor and have not been convicted of a new crime for at least 4 years.
  • If you’ve been convicted of, or received a stayed sentence for a felony on, “The List” and have not been convicted of a new crime for at least 5 years.

“The List” is a list of 50 felony offenses that are eligible for expungement. It can be found on the Revisor’s site in Section 6 , and includes convictions for 5th Degree Controlled Substance, failure to appear in court, theft of $5,000 or less, dishonored check over $500, and movie pirating, among other things.

Are there any limits to what records can be expunged?

There are limits to which crimes qualify for expungement. “The List” of felonies eligible for exoneration is exhaustive, so if you’ve been convicted of first degree murder (a crime not on the list) you won’t be allowed to expunge those records. The legislature also specifically excludes from expungement relief any convictions whether petty misdemeanor, misdemeanor, or gross misdemeanor, for domestic abuse, sexual assault, violations of orders for protection, violations of Domestic Abuse No Contact Orders, stalking and violations of harassment restraining orders. However, this paragraph (Minn. Stat. 609A.02 subd. 3 paragraph (c) is set to expire on July 15, 2015.

How do I go about getting my record expunged?

There are two ways to go about having your records expunged. The first way is to get the prosecutor to agree to expungement. H.F. 2576 creates a new law, Minnesota Statute 609A.02, that allows a prosecutor to agree to sealing records unless the interests of the public and public safety outweigh sealing the records. The second way to have records expunged is to file a petition with the court and serve the petition on the prosecutor who handled the matter as well as government agencies whose records would be affected by the expungement. The petition is rather detailed and must include the reasons the petitioner is asking for expungement and what steps the petitioner has taken to rehabilitate him or herself. After filing the petition 60 days must pass before there is a hearing. At the hearing, the agencies, and victims, if there are victims related to the offense petitioner wishes to have expunged, have an opportunity to argue against expungement. After the hearing, the court will then sign an order denying or granting expungement.

Can the court expunge my DWI conviction?

It is difficult to say how courts will interpret the new expungement law’s effect on DWI and DUI convictions. Previously, it was common knowledge among Minnesota criminal defense attorneys that records of DWI convictions – and the associated license revocation proceedings — could not be sealed. But, the language of the new expungement law is very different from the old one. Some legal scholars believe that after January 1st, the law will allow courts to seal records of misdemeanor and gross misdemeanor impaired driving offenses as well as any records relating to Implied Consent license revocation held by the Department of Public Safety. However, it is clear that felony DWI and DUI convictions are not on the list of felony offenses eligible for expungement.

This brief summary of the new expungement laws only scratches the surface of what the legislature has done. The laws also allow housing court records to be expunged when a tenant is successful in an eviction action, and allow juvenile records to be expunged. Another interesting aspect is that now courts have the authority to require agencies like the Bureau of Criminal Apprehension to seal records they possess. This power was formerly beyond the grasp of the courts. As you can see, these laws present new opportunities for offenders but at the same time are nuanced and can be difficult to navigate. The attorneys at Brockton D. Hunter, P.A. have the expertise to tell you whether your records are eligible for expungement and help guide you through the process.