An expungement is a process by which a criminal record is sealed and is unable to be accessed by members of the general public. It is important to note that expunged records are sealed, not destroyed, meaning that while the general public cannot access the records, police and other public officials may access the records. The most commonly cited reasons for petitioning for an expungement is to open up job opportunities, housing opportunities, and to generally move on from mistakes made in the past. While expungement can lift a huge burden off of those with criminal records, they are considered an “extraordinary remedy” by courts, which means that they can be difficult to obtain depending on the record at hand.
History
Before 2015, full criminal expungements were difficult to obtain in the state of Minnesota. While the court had the authority to expunge records they held themselves, the court could not mandate that other offices, like the Bureau of Criminal Apprehension (BCA), seal records. That meant that a defendant needed to request that every agency that held their records seal the records in the agency’s possession. Every agency granting this request was rare, leading to fewer full expungements. This changed in 2015 when the legislature enacted Minn. Stat. § 609A.01-.04 which gave the court power to mandate that other government agencies seal arrest and conviction records. Attorney John Lesch, as a member of the state legislature in 2015, was a co-author on the original legislation and had a hand in crafting this bill which offers important justice to thousands of Minnesotans.
Who is eligible for an expungement?
Who is eligible for expungement depends largely on the amount of time that has passed since the crime was committed and the level of the charged offense.
Not Guilty – If the defendant was found not guilty of the crime charged, an expungement can be requested immediately.
Diversion or Stay – If the defendant has completed a diversion program or stay of adjudication and has not been charged with another crime for a year since the diversion or stay ended, an expungement can be granted after that year long period has expired.
Misdemeanors – If the defendant committed a petty misdemeanor or misdemeanor, they can request an expungement two years after imprisonment or probation has ended. The process for gross misdemeanors is similar but the defendant must wait four years.
Felonies – Expungements are only granted for certain felonies and even if the felony is eligible for expungement, the defendant must wait five years after imprisonment or probation has ended to request expungement.
If a person is required to register as a predatory offender, their case is not never eligible for expungement, but there may be other post-conviction relief which the defendant may seek (see below).
While the above categories of applicants are able to petition for expungement, judges will look at the actual facts of the case and the person’s life since the case to determine whether the expungement should actually be granted.
When do judges grant expungements?
Judges follow a 12-step test laid out in Minn. Stat. § 609A.03 Subd. 5(c) to determine whether a person should be granted an expungement of their criminal records. The twelve factors that are considered are:
(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 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 place to help ensure completion of restitution payment after expungement of the record if granted; and
(12) other factors deemed relevant by the court.
A person petitioning for expungement should be able to persuasively argue most of these elements in their favor.
What is the expungement process like?
An expungement begins with a petition that explains what happened in your case, names the victim (if any), and argues why your case should be expunged. This document must be mailed to all governmental agencies that have records of the arrest and/or conviction. This includes the office that prosecuted the case, the police, the BCA, and of course the court that adjudicated the case. Other documents are also created that help the court understand your case, make it easy to grant the expungement request and show that you have contacted all agencies that have the arrest and/or conviction records. After creating the documents, but before filing them with the court, the court is contacted, and a date is set several months out for your expungement hearing. Then, the documents are filed and mailed.
In the meantime, different agencies that hold the records (often the prosecutor’s office) can object and explain why your expungement should not be granted. This sometimes happens and sometimes does not happen. Prosecutor’s offices often object if the crime was violent, was a felony or was relatively recent.
At the hearing, the judge will likely ask some questions. The judge will then decide whether or not your expungement should be granted. While you can request an expungement more than once, you must disclose on your new expungement petition that you had requested an expungement previously. Having previously been denied an expungement might make a judge wary of granting your expungement the second time around. Therefore, is important that the expungement process is completed correctly and your arguments for expungement are persuasive.
Barriers to Expungement
Either through lack of information or misconceptions about who is eligible for expungement, many people are unaware that expungement is an available avenue for them.
Expungement can also be a daunting process for someone that has relatively little experience with the criminal justice system. The idea of filing documents, calling the court and communicating with government agencies can seem overwhelming. However, with an experienced criminal defense attorney, this issue can be easily overcome.
Often, those petitioning for expungement are not comfortable with admitting guilt. Either they did not commit the crime charged or feel that admitting guilt will harm their reputation. However, an important piece of the expungement is to show the court that the defendant has moved on from their behavior, has accepted responsibility and is unlikely to re-offend. This includes admitting guilt. If a person wants to claim that they were not guilty of the crime they were convicted of, they must either appeal or ask to have their case re-opened. However, these options are only successful under very specialized circumstances and are particularly unlikely to be successful if the person pled guilty in the original case.
Often, defendants do not want to revisit their conviction. While expungements are meant to be a way to move on from the past, sometimes discussing the conviction openly with an attorney or the court can be a difficult experience for those petitioning for expungement. However, those that are granted expungements often feel relieved after the fact, and are able to move onto new opportunities.
Options Beyond Expungement
Minnesota’s 2013 “Ban the Box” law prohibits employers from asking on initial employment applications whether a person has been convicted of a crime. This law gives those with criminal convictions the option to wait until later in the hiring process to disclose their conviction, allowing them to prove their fitness for the job before being denied because of their record and prohibiting employers from dismissing an applicant outright because of their criminal record.
Certain employers are amenable to hiring those with criminal convictions. There are certain companies that advertise positions as specifically being available for felon applicants.
The best offense is a good defense. Ensuring that you have the best criminal defense attorney available will increase the chances that your case will be resolved in your favor, eliminating the need for an expungement in the first place.
Why should you hire a criminal defense attorney to handle your expungement?
While the court allows you to petition for an expungement by yourself, the process can be complicated and difficult to understand without an experienced attorney to guide you through expungement. Additionally, attorneys understand the elements that must be met for the court to grant an expungement and can better argue on your behalf in order for you to have the best chance at expungement possible. If an attorney at an agency objects to your expungement, you want an attorney that is able to skillfully rebut the agency’s arguments for why your expungement should not be granted.
We’re here 24/7, and consultations are free. John Lesch is a former prosecutor who now represents defendants, so he knows what judges are looking for in expungement cases. Take a look at our case results page and then contact us if or when you are looking for a fresh start by expunging your criminal record.