Expungements to Seal Criminal Records
Can you really lock up your court records and throw away the key? The short answer is, it depends. You can, but it’s not as easy as turning a key in a lock.
What is an Expungement?
To request an “expungement of criminal records” is just another way of saying you are asking the court to seal the criminal record, hide criminal records from the public or even destroy your criminal court records.
There are essentially two types of expungements in Minnesota: “statutory authority” expungements and “inherent authority” expungements.
Statutory expungements mean that a particular law authorizes a Judge to seal the records. There are five types of cases that fall under statutory authority:
- Juvenile criminal cases;
- Juvenile criminal cases where the juvenile was certified and tried as an adult in adult court;
- Drug diversion cases for first time offenders who possessed a small amount.
- Cases for possession of a small amount of marijuana that happened before 1976.
- Cases that were dismissed by the prosecutor and / or some cases where a person did not plead guilty;
Inherent Authority Expungements
All other cases are considered “inherent authority” expungements. Inherent authority simply means that the Judge can decide to use their Judicial power to order the records sealed, or not.
There are a few exceptions. For example, if a case is more than 15 years old, if the person’s plea was vacated and the case dismissed, or if the person received a pardon, then you may be entitled to an expungement.
How does an expungement work?
You must apply for an expungement under statutory authority. Then, if the Judge grants the expungement, the Judge may seal all records related to the case in all locations, even outside the courthouse.
If no law specifically authorizes an expungement of your records, then you must apply for an expungement under inherent authority. Then, if the judge grants the expungement, the judge is limited in what records can be sealed. What does that mean, exactly? It means that the Judge only has the power to seal the court record and the probation record.
So what’s the difference?
An expungement ordered under a Judge’s inherent authority stays at the courthouse – where the Judge has power. That means the judge cannot seal police department records, Bureau of Criminal Apprehension (BCA) records, Department of Human Services records, or other executive branch department records. So if you someone goes to the courthouse, they won’t find your record. But, if your landlord or employer runs a criminal background check of the BCA records, those records will still show up!
Are there any cases that can’t be expunged?
There are certain types of cases or situations where you CANNOT get an expungement. These include:
- DWI cases
- Minor traffic offenses (After 5 years these can be removed by DPS)
- Any sex offense that requires you to register as a predatory offender
- When you are still on probation for any offense
Also, if you were arrested, but never charged, then you must apply directly with the agencies holding your records instead of the court.
How long does it take?
An expungement takes between 4-5 months at a minimum, start to finish. The court charges a $320 filing fee. The filing fee is waived under certain circumstances. It takes a few weeks to prepare the appropriate documents and serve all parties who are keeping records of the offense. Then, once the matter is filed with the court, you have to wait a minimum of 60 days for a scheduled court hearing. If the Judge grants the expungement, the expungement will take effect 60 days later (but the State has 60 days to appeal the court’s order).
Should I apply for an expungement?
Expungement is a good choice if you were not convicted and want to clear your record of the arrest and charges filed. It’s also a good option if you have just one major conviction you want off your record.
Expungement is not a very good option if you have multiple convictions for major offenses – unless there are very compelling circumstances that can explain multiple convictions. Or, sometimes if you have multiple convictions there is a good reason to apply for an expungement when removing one offense in particular would make a big difference in your life.
How does the Judge decide?
The Judge will consider three main categories:
1. What are the details of the original offense?
a. How long ago was the crime;
b. How old were you then;
c. How serious was the crime;
d. Your role or involvement in the crime;
e. What was your situation at the time (drug problem, etc.).
2. How have you rehabilitated yourself since the crime?
a. Did you successfully complete probation;
b. Have you remained law abiding;
c. Have you completed some type of treatment or counseling;
d. Have you attended school or completed some other skills training;
e. Have you maintained employment.
3) Why are you now seeking an expungement?
a. Employment concerns?
b. Will an expungement really solve the problem?
c. Are there other offenses that need expunging to solve the issue?
The Judge looks at all of these factors and weighs whether the benefit to the person seeking expungement outweighs the right of the public to know about the offense through public records.
Are there any other options?
If expungement isn’t a good use of your resources, then it is possible apply for a Pardon with the Minnesota Board of Pardons.