Expungement involves striking records or information in court files, computers and other depositories relating to criminal charges. Expungement in Minnesota is generally limited to the sealing of the court’s records relating to a criminal conviction and prohibiting the disclosure of their existence except under court order or some other statutory authority. The Minnesota expungement statutes outline the process, which takes about three or four months to conclude. The law is rather complicated in this area, given some recent decisions from the Minnesota Supreme Court and the Minnesota Court of Appeals. At present, any record that originates from the Courts may be expunged, even if they rest in an agency of the executive branch of the government (such as the BCA). Records created by law enforcement agencies, such as a police department (again, an executive branch agency) are difficult to expunge, given the separation of powers doctrine.
Basis for Expungement
The court will grant the petition to seal the record unless the agency or jurisdiction whose records would be affected establishes, by clear and convincing evidence, that the interests of the public safety outweigh the disadvantages to the petitioner of not sealing the record. The court basically will look at three criteria: (1) the seriousness of the offense (more serious means less chance of expungement); (2) time that has elapsed since the offense (the more time, the more likely the court will expunge); and (3) the rehabilitative measures taken by the petitioning defendant (such as community service, counseling, stable employment, etc.). As a general rule, defendants should wait at least two years to attempt to expunge a misdemeanor, with a much longer timeframe for more serious crimes. Some criminal convictions, such as DWI and criminal sexual conduct, can never be expunged.
Petition for Expungement
Eligible adults or juveniles prosecuted as adults in Minnesota must file a sworn petition for expungement. The petitioner must serve the petition for expungement and aproposed expungement order on the criminal prosecutors office that had jurisdiction over the offense for which expungement is sought and all other state and local government agencies and jurisdictions whose records would be affected by the proposed order. The petition will outline the basic facts of the case, the reason expungement is sought, and describe the rehabilitative measures that have been undertaken by the petitioner.
A hearing is to be held no sooner than 60 days after service of the petition. A victim of the criminal offense for which expungement is sought has a right to submit an oral or written statement to the court at the time of the hearing, describing the harm suffered by the victim as a result of the criminal activity and the victim’s recommendation on whether expungement should be granted or denied. Sometimes the prosecutor or attorney general will offer legal argument, but in other cases they do not even attend the hearing and defer to the court.
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