The newly added provisions of Minnesota’s expungement law require waiting periods before a petitioner becomes eligible for full statutory expungement of a criminal record, during which the person may not be charged or convicted of a new crime. The expungement statute states in relevant part:
A petition may be filed under section 609A.03 to seal all records relating to an arrest, indictment or information, trial, or verdict . . . if:
- (2) 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;
- (3) 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;
- (4) 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;
- (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;
Minn. Stat. §609A.02, Subds. 3(a)(2-5) (emphasis added).
The waiting period language has given rise to two different interpretations with regard to the timing of eligibility to file a petition for expungement if a person has been charged with or convicted of a new crime since the discharge of the sentence for the offense one is trying to expunge. The two interpretations are: 1) if the petitioner has been convicted of a subsequent crime, that conviction must have occurred at least x years before the current petition was filed; or 2) if the petitioner has been convicted of a subsequent crime, that conviction must have occurred at least x years after discharge of the sentence for the offense sought to be expunged.
The first interpretation means the waiting period is primarily satisfied in the time just prior to the filing of the petition, assuming the person has also been discharged from the sentence in question for the appropriate number of years. A new criminal conviction restarts the waiting period, but does not disqualify a person from eventually petitioning for expungement. A person convicted of a new crime one year after discharge of a gross misdemeanor sentence, for example, would then have to wait at least four additional years after that new conviction date before petitioning for expungement of the gross misdemeanor crime. Given that courts are required to consider a petitioner’s progress toward rehabilitation, the legislative intent likely was that expungement can occur no sooner than four years after the most recent criminal conviction.
In the second interpretation, the relevant point in time is the years immediately after the discharge of the sentence. For example, a person convicted of a new crime one year after discharge of a gross misdemeanor sentence would be disqualified from ever petitioning for expungement of that gross misdemeanor crime. If, for example, a person was convicted of a gross misdemeanor crime in 1991, placed on probation for two years and discharged in 1993, and then subsequently convicted of a new misdemeanor offense in 1994, that person could seek expungement of the 1994 misdemeanor conviction, but never the 1991 gross misdemeanor crime. In contrast, a person convicted of a new crime more than four years after discharge of the gross misdemeanor sentence (in the terms of the preceding example, convicted of a new crime in 1998 instead of 1994) would be able to petition for expungement of the 1991 gross misdemeanor crime, despite having been convicted of a new offense within four years of the date of the petition filing—even if he or she was currently on probation for a new crime.
The Minnesota Bureau of Criminal Apprehension typically responds to expungement petitions using the second interpretation–that someone convicted of a new criminal offense immediately after discharge of the sentence for the offense sought to be expunged is never eligible for an expungement. Initially, Hennepin County likewise employed the second interpretation. But Hennepin County later changed course to adopt the first interpretation, albeit inconsistently, and recent cases have reverted back to using the second interpretation.