Expungement of Drug Diversion Cases

A source of confusion in Expungement cases has been how to classify felony drug possession cases resolved with a statutory stay of adjudication pursuant to Minn. Stat. §152.18. If the court considers the case eligible for expungement pursuant to Minn. Stat. § 609A.02, Subd. 1, which explicitly allows for expungement of 152.18 cases, the petitioner is immediately eligible for statutory expungement upon discharge of sentence. If the court considers the case instead to be eligible as a stay of adjudication under Minn. Stat. §609A.02, Subd. 3(a)(2), a one-year waiting period (with no new criminal charges) is required. Only expungements granted pursuant to Minn. Stat. §609A.02, Subd. 1 restore the person to the status the person occupied before the arrest, indictment, or information, whereas expungements granted pursuant to Minn. Stat. §609A.02, Subd. 3(a)(2) do not.

To make matters more complicated, expungement proceedings pursuant to Minn. Stat. §609A.02, Subd. 3(a)(2), shift the burden of proof to a prosecutor or agency whose records are affected to prove by clear and convincing evidence that the interests of the public and public safety outweigh the disadvantages to the petitioner of not sealing the record. If the prosecutor or agency whose records are affected does not meet this burden, the judge must grant the expungement petition. Cases considered eligible under Minn. Stat. §609A.02, Subd. 1, place the burden on the petitioner to show clear and convincing evidence it would yield a benefit to the petitioner commensurate with the disadvantages to the public and public safety of sealing the record and burdening the court and public authorities to issue, enforce, and monitor an expungement order.