January 5, 2015 www.PendletonUpdates.com TRAINING UPDATE 15-01
Minnesota’s New “Second Chance” Law: Under the new expungement law, effective January 1, 2015, many Minnesotans with a criminal record impeding their chances for employment and other opportunities can now pursue a second chance by petitioning for expungement of their record. Unlike the previous law, which for most petitioners provided only partial or meaningless relief, this new second chance law will provide a meaningful and full remedy. Note: The expungement petition, instructions, and new court orders can be downloaded from the Judicial Branch Public Website. See M.S. 609A.01-04; (House File #2576).
Definition of Expungement: An expungement is a court-ordered sealing of a person’s criminal record, which may be held by several government agencies. A person seeking an expungement typically must prove by clear and convincing evidence that expungement (sealing of the record) would yield a benefit to petitioner that outweighs the detriment to the public and public safety. The record is not destroyed and may be opened under specific circumstances prescribed by statute. (M.S. 609A.03, subd. 5 & 7a).
Definition of “Criminal Record”: In addition to records relating to the criminal charges, sentencing and disposition, criminal records may also include: arrest data, transcripts of 911 calls, criminal investigative data, booking photographs, identification and DNA data. (M.S. 13.82, 299C.10 and 299C.105).
Where are the records kept? The above information (i.e. the criminal record) may be held by some or all of the following government agencies: Bureau of Criminal Apprehension (BCA), Minnesota Court Information System (local courts and state-wide MNCIS), Department of Public Safety (i.e. driving records), police departments, city or county attorney’s offices, sheriff’s departments, Attorney General’s Office, Department of Corrections, and Department of Human Services (DHS).
There are Two Types of Expungements and Why the Law of Expungements Had to be Fixed:
1) Statutory Expungement – The New Future: (M.S. 609A.02) Under the old law, statutory expungments were limited to three restrictive statutory grounds. As a result, few defendants qualified for this type of expungement. The new law dramatically expands the statutory grounds upon which a full expungement can now be based. See § “I” below for an explanation of why this type of expungement is the new future.
2) Inherent Authority Expungement – A viable but limited option: In the past, if someone did not qualify for a statutory expungement, they could apply for an expungment under the court’s “inherent authority.” The problem was that this type of expungement could only seal records held by the Judicial Branch; they did not seal records held by the Executive Branch (i.e. the BCA, etc.). The practical result was that the “all-important” BCA public records, which are most often used during criminal background checks, remained unsealed. The result was a remedy that for most people was meaningless. However, see § “II” below for an explanation of when and why this type of expungement remains a viable option in some cases.
I. STATUTORY EXPUNGEMENT – 7 GROUNDS & 1 EXCEPTION- M.S. 609A.02 subd. 1, 2 & 3:
There are now seven (7) grounds upon which a statutory expungement can be granted. (§ 4 -7 are new):
1) Subd. 1 - Original Ground – First-time drug possession offenses (M.S. 152.18 stay of adjudication):
2) Subd. 2 - Original Ground – Offenses committed by juveniles who were prosecuted as adults:
3) Subd. 3 (1) Original Ground – Criminal Cases “Resolved in favor of the petitioner”: Under this section, the “burden of proof” shifts to the state to show by “clear and convincing” evidence that petitioner is not entitled to expungement. Note: Over the years, courts have interpreted “resolved in favor of the petitioner” narrowly to mean only when there has been no admission or finding of guilt. (i.e. dismissal, acquittal or completion of a diversion program “with no finding or admission of guilt.”)
4) Subd. 3 (2) New Ground – Diversion Programs or Stays of Adjudication (With Admission of Guilt):
The petitioner has successfully completed the terms of a diversion program or stay of adjudication and has not been charged with a new crime for at least one year since completion of the diversion program or stay of adjudication. Under this section, similar to # 3 above, the burden of proof shifts to the state if the petitioner seeks an expungement on this ground. Legislative Intent: Although not specifically stated in the statute, I’ve been told (by several reputable sources) that it was the legislature’s clear intent that the one year waiting period under this section apply to diversion programs that involved a “finding or admission of guilt.” Diversion programs that do not involve a “finding or admission of guilt” are considered “resolved in favor of the petitioner” and remain subject to expungement under the old law (section #3) above, without the one-year waiting period as required under the new law.
5) Subd. 3 (3) New Ground – Misdemeanor & Petty Misdemeanor: The petitioner was convicted of or received a stayed sentence for a petty misdemeanor or misdemeanor and has not been convicted of a new crime for at least two years since discharge of the sentence for the crime, (see DWI § below);
6) Subd. 3 (4) New Ground – Gross Misdemeanor: The petitioner was convicted of or received a stayed sentence for a gross misdemeanor and has not been convicted of a new crime for at least four years since discharge of the sentence for the crime, (see DWI § below); or
7) Subd. 3 (5) New Ground – Selected Felonies: The petitioner was convicted of or received a stayed sentence for a selected felony and has not been convicted of a new crime for at least five years since discharge of the sentence for the crime. The new law identifies 50-plus low-level, nonviolent felonies that can be expunged. A list of these eligible felonies is attached to this update. (See Attachment “A”).
EXCEPTION – CRIMES OF DOMESTIC VIOLENCE – 7/15/15: None of the new grounds for expungement apply to crimes of domestic violence, such as domestic abuse, sexual assault, violations of an order for protection (OFP) or a restraining order, stalking, and violations of a domestic abuse no contact (DANCO) order – UNTIL JULY 15, 2015. Unless the 2015 legislature decides to treat these offenses differently they will be subject to expungement just like any other misdemeanor or gross misdemeanor effective July 15th.
WHAT ABOUT DWI’s? Although the new law technically includes DWI’s (i.e. they are not specifically excluded), the 2015 legislature may be revisiting this issue. By allowing full expungement of DWI offenses, the new law conflicts with M.S. 171.12, subd. 3(4) which requires the DPS to maintain records of all DWI convictions and specifically states that such records “must be retained permanently.”
II. INHERENT AUTHORITY EXPUNGEMENT – Still a viable but extremely limited option:
What the Supreme Court says: The court’s power to grant an expungement under its “inherent authority” originates from case law, not the legislature. The Minnesota Supreme Court in State v. M.D.T., 831 N.W.2d 276 (Minn. 2013) relied upon the separation-of-powers argument when holding that a district court has inherent authority to expunge only its own records and not those held by the executive branch.
How the new law corrects this problem: The new second chance law fixes this major problem by dramatically expanding the statutory grounds upon which a full expungement can be granted. Qualified petitioners can now obtain court orders that seal both judicial and executive records, providing petitioners with a full and meaningful remedy. Note: The new law does not limit or change a person’s ability to petition the court for an expungement under the court’s inherent authority. For example:
“Inherent Authority Expungements” remain a viable option for cases such as: Some people do not want to wait out the time period required under the statute or perhaps have received a pardon or a judicial set aside. Some people do not have BCA records because they were never booked. Some people must act quickly because a potential employer has told them to get an expungement and come back with the court order. These people may be more interested in simply obtaining a judge’s order of expungement (on any level even if it only applies to judicial records and not BCA records). Some people may have a felony conviction that is not eligible for a statutory expungement (see Attachment “A”) but they nonetheless believe a partial expungement order is better than none at all. Other people look at expungement as a certificate of rehabilitation and still find value in it despite limitations on which records can be sealed. This type of expungement order may serve to quell concerns that potential employers or landlords have upon discovering the criminal record. In addition, a petitioner can demand that the BCA update its records to reflect that Judicial Records have been expunged. See M.S. 13.04, subd 4.
III. BEFORE GRANTING EXPUNGEMENT THE COURT MUST CONSIDER 12 FACTORS:
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 the 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 crime were minors;
11. The amount, if any, of restitution outstanding, past efforts made by the petitioner toward payment, and the measures in places to help ensure completion of restitution payment after expungement of the record if granted; and,
12. Other factors deemed relevant by the court. M.S.609A.03, subd. 5(c).
IV. TEN (10) ADDITIONAL FACTS ABOUT THE NEW LAW YOU NEED TO KNOW:
1. Expungement by Agreement of Prosecutor without a Petition – M.S. 609A.025: The new law allows for expungement by agreement of the prosecutor, with approval of the judge, without the need to file a petition. A new court order has been created for judges to order expungement in cases that do not require the filing of a petition. Note: The new order can be downloaded from CourtNet (see form EXP108). Please note that CourtNet is a secured judicial site and is accessible only by court employees. For those that cannot access CourtNet, I have enclosed a copy of the new order. See Attachment “B”.
a. If this occurs, the court shall seal the criminal record, unless the court determines on its own authority “that the interests of the public and public safety in keeping the record public outweigh the disadvantages to the subject of the record in not sealing it.”
b. In addition, “the prosecutor shall make a good faith effort to notify any identifiable victim of the offense of the intended agreement and the opportunity to object to the agreement.”
c. In stay of adjudication and diversion cases under the new law, the agreement for expungement without a petition may occur before or after the charges are dismissed.
2. Ordering Expungement Even if Defendant Still Owes Restitution – M.S. 609A.03, subd. 5(c)(11):
The new law allows the court to order expungement even if the defendant still owes restitution. However, if a case is ordered expunged when the defendant still owes financial obligations, any payments by the defendant cannot be processed, and the victim cannot get paid.
NOTE: To ensure victims continue receiving restitution payments, the expungement order must include language staying the expungement order until all financial obligations on the case are paid in full. This will ensure the case remains accessible while fines and restitution are still being paid. If the judge does not want the expungement order stayed, all remaining financial obligations should be waived when the case is ordered expunged. All new expungement orders have been amended to include this language.
3. Eviction Records: Immediate Expungement if Defendant Prevails – M.S. 504B.345, subd. 1 (c) (2): If the court or jury enters a finding in favor of the defendant (tenant), the court may expunge the housing eviction records under M.S. 484.014 or under the court's inherent authority at the time the housing court judgment is entered or after that time upon motion of the defendant (tenant).
4. Expungement of Juvenile Records – M.S. 260B.198, subd. 6(a): “The court may expunge all records relating to delinquency at any time if the court determines [by a preponderance of the evidence] 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…”. There are 8 factors the court must consider when making the determination. (Includes Juvenile petty offenses - M.S. 260B.235, subd. 9.)
5. Defendant’s Right to Request Confirmation that Records Have Been Expunged – M.S. 609A.03, subd 8