Prior to the enactment of the new expungement statute, DWI offenses were nearly impossible to expunge. Those that involved convictions did not qualify for a full expungement under the old pre-2015 statute; the court could not reach into executive branch records held by the Minnesota Department of Public Safety to expunge the DWI conviction or corresponding driver’s license revocation from a driving record. For most defendants, this meant expungement of a DWI was meaningless.

With the passage of the new expungement law, DWI offenses are now subject to full statutory expungement. However, DWI expungements in particular continue to present complex issues. As a result, only five DWI expungements were granted in Minnesota the first year it was available in 2015.

A common argument against expungement of DWI offenses (and some other criminal convictions, such as domestic assault) is that these convictions are used for a period of 10 years following the date of conviction to enhance penalties for any new similar offense, and that this enhancement mechanism precludes expungement. But the mere fact of expungement does not prevent the state from using the expunged conviction to enhance a subsequent offense. According to Minn. Stat. §609A.03, Subd. 7a(b)(1), “an expunged record may be opened, used, or exchanged between criminal justice agencies without a court order for the purposes of initiating, furthering, or completing a criminal investigation or prosecution or for sentencing purposes or providing probation or other correctional services.”

An expungement is commonly regarded as involving the sealing of records, not the reversal of a conviction or underlying proceedings. Minn. Stat. § 609A.03, Subd. 6, for example, states, “if the court orders the sealing of the record of proceedings under section 152.18, the effect of the order shall be to restore the person, in the contemplation of the law, to the status the person occupied before the arrest, indictment, or information.” The Legislature, by including this language for Minn. Stat. §152.18 (felony drug diversion) expungement cases, excludes persons receiving an expungement in other types of cases from that same status. Nothing in Chapter 609A or any other law provides that an expungement of a conviction also restores the person to the status the person occupied before the arrest. Clearly, the state has the ability to open a previously expunged case for purposes of a new prosecution, and has the ability to use an expunged conviction to enhance a new charge.

That said, a common practical question is how prosecutors can determine the existence of an expunged conviction for purposes of charging a new offense. In February 2015, the Criminal Justice Information Services (CJIS) announced the implementation of a new criminal history “purpose code” in its database. “Purpose code Q” should now be used in place of “purpose code C” when a criminal records check is performed for initiating, furthering, or completing a criminal investigation or providing probation or other correctional services. Purpose code Q will return all of the information that purpose code C returns, with the addition of data expunged after January 1, 2015, the date the new expungement law took effect.

Another issue with expungement of DWI offenses is that they often involve records related to a corresponding revocation of a driver’s license, otherwise known as implied consent case records. Implied consent cases are civil proceedings, while Chapter 609A explicitly provides for expungement of criminal records. The counter-argument is that Chapter 609A also explicitly provides for the sealing of all records related to an arrest, indictment or information, trial, or verdict, and the records related to the revocation of the petitioner’s driver’s license are records related to the criminal arrest and proceedings, and therefore subject to expungement.

The only exception is if the district court makes a finding there is a nexus between the criminal record and the person’s status as a crime victim. In these cases, the expungement will also then restore the person to the status the person occupied before the arrest. Minn. Stat. §609A.03, Subd. 6a.