Practice Areas

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 would result in a benefit to the person seeking the expungement that outweighs the detriment to the public and public safety.  See. Minn. Stat. 609A.01-.04

Under Minn.Stat. 609A.02, subd. 1, 2 and 3 there are seven grounds where a statutory expungement can be granted.

  1. First-time drug possession offense.  Minn.Stat. 152.18
  2. Offenses committed by juveniles who were prosecuted as adults.
  3. Cases "resolved in the favor of the person seeking an expungement."  This means cases where there was no admission or finding of guilt (i.e. dismissal, acquittal, or completion of diversion."
  4. Cases where the petition receives a stay of adjudication, completes the period of the stay and has not been charged with a new crime for at least one year after the completion of the stay of adjudication.
  5. Misdemeanor and Petty Misdemeanor.   If the person seeking an expungement was convicted of a petty misdemeanor or misdemeanor and two years have elapsed since discharge of sentence for the crime.
  6. Gross Misdemeanor.   Same as above but the waiting period is four years.
  7. Selected Felonies.  Same as above but the wait time is six years without a conviction.

Inherent Authority 

The court's power to grant an expungement under its "inherent authority" originates from case law and not the legislature.  State v. M.D.T., 831 N.W.2d 276 (Minn. 2013) relied on the separation of powers only its own records and not those held by executive branches.   This does not include records held by the Bureau of Criminal Apprehension (BCA).

In order for the court to do this they must consider 12 factors:

  1. The nature and severity of the underlying crime, and the record of which would be sealed;
  2. The risk, if any, the person seeking expungement poses to individuals or society;
  3. The length of time since the crime occurred;
  4. The steps that were took by the person seeking the expungement toward rehabilitation following the crime;
  5. Aggravating or mitigating factors relating to the underlying crime, including the person seeking the expungement's level of participation and the context and circumstances of the underlying crime;
  6. The reasons for expungement, including attempts to obtain employment, housing or other necessities;
  7. Their criminal record;
  8. Their record of employment and community involvement;
  9. The recommendations of interested law enforcement, prosecutorial and correctional officials;
  10. The recommendations of the victims or whether victims of the underlying crime were minors;
  11. The amount, if any, restitution outstanding, past efforts made by the person seeking expungement made toward payment, and the measures in place to help ensure completion of restitution payments after expungement of record is granted;
  12. Other factors deemed relevant by the court.  Minn.Stat. 609A.03, subd. 5(c)
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