The new year means another opportunity for a fresh start. It’s a chance to make everything different from this point forward. It’s also now a time for second chances when it comes to your criminal record. Beginning January 1, 2015, a new law makes some major changes to how Expungements are handled in Minnesota. These major changes can give good people the second chance they deserve at having a completely clean record.
What is an Expungement?
An expungement is the court ordered sealing or returning of government held criminal records of an individual. They are not the destruction of the records. www.projusticemn.org The problem is that prior to the changing of the expungement law on January 1, 2015 the court was very limited as to who it could order to seal its records.
There are three kinds of expungement:
- Return of Arrest Records
- Statutory Expungement
- Case Law Expungement
Return of Arrest Records
Were you arrested but never charged with a crime? Or was your case dismissed because there was no probable cause to charge you? Guess what? You have a criminal record! That arrest will still show up on a Bureau of Criminal Apprehension “BCA” records search and it remains in the records of the police department that arrested you. However, you may now be able to get all of that sealed and expunged.
The pre-2015 expungement law only provided for certain cases such as those dismissed by stay of adjudication, continuance for dismissal, continuance without prosecution and those resulting “in the petitioner’s favor” be automatically eligible for expungement. These cases, when granted, are expunged from all records and branches.
Case law Expungement
Everything else is considered case law expungement. This is where requesting an expungement wasn’t really worth it under the old law. Why? Because the court did not have the authority to tell the Executive Branch to seal their records. Even if the court found that the benefit to you outweighed the public risk, the court could only tell the offices in its jurisdiction (the judicial branch) to seal its records. That is all fine and dandy until you realize that it doesn’t really matter that your record is sealed in the judicial branch because when a potential employer does a record check with the BCA your expunged case still shows up like a neon sign.
Expungement Law Changed January 1, 2015
In May of 2014, Governor Dayton signed the Expungement changes into law. The expungement law as it stood prior to the changes was limited in what it gave the courts power to do. As of January 1, 2015 the courts will have the power to order the Executive Branches of the government to seal their records in a significant number of cases that they were not able to previously. This is important because the main powerhouse that stores criminal records is an executive branch known as the Bureau of Criminal Apprehension (“BCA”). Other important Executive Branches are:
- The Attorney General’s Office
- The Board of Teaching
- City and County Attorneys’ Offices
- County Sheriff’s Offices
- The Minnesota Department of Health (“MDH”)
- The Minnesota Department of Human Services (“DHS”)
- Police Departments
How did Expungement Law Change?
Now the courts have the power to order Expungements of Judicial and Executive records in the following cases:
- the nature and severity of the underlying crime, the record of which would be sealed;
- the risk, if any, you to individuals or society;
- the length of time since the crime occurred;
- the steps taken by you toward rehabilitation following the crime;
- aggravating or mitigating factors relating to the underlying crime, including your level of participation and circumstances of the underlying crime;
- the reasons for the expungement, including your attempts to obtain employment, housing, or other necessities;
- your criminal record;
- your record of employment and community involvement;
- the recommendations of interested law enforcement, prosecutorial, and corrections officials;
- the recommendations of victims or whether victims of the underlying crime were minors;
- the amount, if any, of restitution outstanding, past efforts made by you toward payment, and the measures in place to help ensure completion of restitution payment after expungement of the record if granted; and
- other factors deemed relevant by the court.
There are other advantages to the new expungement law. Some advantages are for employers and landlords. If you base a hiring or leasing decision on expunged records you are protected from liability. Also, the new law requires private screening services that do background checks to delete expunged records before giving them out. This is very helpful for people who have gone through the trouble of expunging their records and where there has been an error on someone else’s part in the expungement process.
What is the Process to Get an Expungement?
After you consult with an attorney to determine if an expungement is right for you, the process is comprised of some time, a lot of paperwork and possibly a court appearance.
Your attorney will assist you in gathering all of the information you need. But, if you would like to get a head start you are going to need an updated copy of your BCA printout, all addresses since the date of offense that you are looking to get expunged, the names and addresses of any victims related to the offenses you are looking to get expunged, a draft of an affidavit of who you are, how you have changed since the offense and why you need the expungement and names of three people who will write positive affidavits on your behalf.
My Only Criminal Record is Juvenile. Why Should I Expunge it?
Contrary to popular belief, juvenile records do not disappear once you turn 18. Minnesota Statute Section 260B.171 explains that not only are they retained, but they are used and made available to government agencies. These records can be used to enhance some adult criminal charges! The records can also be used to restrict access to firearms and prevent access to public housing.
Remember, you still have to pass the benefits versus risk to the public test with the judge but it is almost ALWAYS worth a try.
I Have Read All of This Now What Do I Do?
Pick up the phone and call me to start the process right away. The sooner the better. I have had many clients tell me that they have this one conviction on their record that has bothered them for years. The time is now! The laws were changed for people like you, who have made a mistake and are not defined by the information in their criminal records.
What are the Eligible Felonies?
Felonies Eligible for Executive Branch Expungement on January 1, 2015:
(5) the petitioner was convicted of or received a stayed sentence for a felony violation of an offense listed in paragraph (b), and has not been convicted of a new crime for at least five years since discharge of the sentence for the crime. (b) Paragraph (a), clause (5), applies to the following offenses:
- Aggravated forgery (section 609.625), Forgery (section 609.63), Check forgery $2,500 or less (section 609.631, subdivision 4, clause 3 a), Obtaining signature by false pretense (section 609.6350, Recording, filing forged instrument (section 609.64) or Fraudulent statements (section 609.6450
- Altering livestock certificate (section 35.824)
- Assaulting or harming police horse (section 609.597, subdivision 3, clause 3)
- Bribery of participant or official in contest (section 609.825, subdivision 2)
- Bringing stolen goods into state (section 609.525)
- Cellular counterfeiting (section 609.894, subdivision 3 or 4)
- Certificate of title false information (section 168A.30, subdivision), or Accident resulting in great bodily harm (section 169.09, subdivision 14, paragraph a, clause 2)
- Certification for title on watercraft (section 86B.865, subdivision 1)
- Coercion (section 609.27, subdivision 1, clauses 2 to 5)
- Computer damage (section 609.88) or Computer theft (section 609.89)
- Contempt (section 588.20)
- Controlled substance in the fifth degree; (section 152.025)
- Counterfeited intellectual property (section 609.895, subdivision 3, paragraph a or b)
- Criminal damage to property (section 609.595, subdivision 1, clauses 2 to 4, and subdivision 1a, paragraph a)
- Discharge of firearm; silencer (section 609.66, subdivision 1a, paragraph a), or Furnishing firearm to minor (section 609.66, subdivision 1b)
- Dishonored check over $500 (section 609.535, subdivision 2a, paragraph a, clause 1)
- Duty to render aid (section 609.662, subdivision 2, paragraph b)
- Embezzlement of public funds $2,500 or less (section 609.54, clause 1)
- Escape from civil commitment for mental illness (section 609.485, subdivision 4, paragraph (a), clause 2 or 4)
- Failure to affix stamp on scheduled substances (section 297D.09, subdivision 1)
- Failure to appear in court (section 609.49)
- Failure to control regulated animal) (section 346.155, subdivision 10)
- False bill of lading (section 228.45; 228.47; 228.49; 228.50; or 228.51)
- False certification by notary (section 609.65, clause 1) or Lottery fraud (section 609.651, subdivision 4, paragraph a)
- False declaration in assistance application (section 256.984)
- Financial transaction card fraud (section 609.821, subdivision 2)
- Fraudulent driver's license and identification card (section 609.652)
- Gambling regulations (section 349.2127; or 349.22)
- Insurance regulations (section 62A.41)
- Interference with cable communications system (section 609.80, subdivision 2)
- Interference with privacy; subsequent violation or minor victim (section 609.746, subdivision 1, paragraph e)
- Interference with transit operator (section 609.855, subdivision 2, paragraph c, clause 1)
- Leaving state to evade establishment of paternity (section 609.31)
- Liquor taxation (section 297G.19) or Unlawful acts involving liquor (section 340A.701)
- Metal dealer receiving stolen goods (section 609.526, subdivision 2, clause 2)
- Movie pirating (section 609.896)
- Negligent fires (section 609.576, subdivision 1, clause 3, item iii)
- Pistol without permit; subsequent violation (section 624.714, subdivision 1a), or Transfer of pistol to ineligible person (section 624.7141 subdivision 2)
- Possession or use of scanning device or reencoder (section 609.527, subdivision 5b), Possession or sale of stolen or counterfeit check (section 609.528, subdivision 3, clause 3) or Mail theft (section 609.529)
- Precious metal dealers (section 325F.743) or Prize notices and solicitations (section 325F.755, subdivision 7)
- Receiving stolen goods (section 609.53)
- Residential mortgage fraud (section 609.822)
- Rifle or shotgun in public by minor (section 624.7181)
- Rustling and livestock theft (section 609.551)
- Sale of simulated controlled substance (section 152.097)
- Tampering with fire alarm (section 609.686, subdivision 2)
- Telecommunications and information services fraud (section 609.893, subdivision 2)
- Theft of $5,000 or less (section 609.52, subdivision 3, clause 3 a) or other theft offense that is sentenced under this provision; or Theft of $1,000 or less with risk of bodily harm (section 609.52, subdivision 3a, clause 1)
- Transfer pistol to minor (section 624.7132, subdivision 15, paragraph b)
- Voting violations (chapter 201; 203B; or 204C)
- Wildfire arson (section 609.5641, subdivision 1a, paragraph a)
- Willful evasion of fuel tax (section 296A.23, subdivision 2)
*These don’t include Domestic abuse or sexual assault, violation of an order for protection, violation of an HRO, stalking or violating a DANCO.
Next Steps? Contact me at 612-968-1278 or fill out the Expungement Form on my website for more information.