Interpretation of Expungement Waiting Period Finally Resolved
In the past, the waiting period language in the expungement statute has been interpreted two different ways when person has been charged with or convicted of a new crime since the person was discharged from their sentence (probation or parole). The two interpretations are: 1) if the petitioner has been convicted of a subsequent crime, that conviction must have occurred at least (2 or 4 or 5) years before the expungement petition was filed; or 2) if the petitioner has been convicted of a subsequent crime, that conviction must have occurred at least (2 or 4 or 5) years after discharge of the sentence for the offense sought to be expunged.
The first interpretation meant the waiting period was primarily satisfied in the time just prior to the filing of the petition, assuming the person has also been discharged from their sentence 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.
On Tuesday, January, 2, 2018, the Minnesota Court of Appeals issued a ruling in State v. C.W.N. The Court applied the dictionary definition of “since,” as an adverb, and interpreted the statutory language to mean that the two- and four- and five-year conviction-free periods must occur immediately preceding the filing of an expungement petition.
The waiting period is restarted after a new criminal conviction is obtained but it does not disqualify a person from eventually obtaining an expungement. For example, if someone received a gross misdemeanor conviction in 2013, was discharged from probation in 2015, and then is convicted of a new crime in 2017, they would then have to wait an additional four years until 2021 (2017 + 4 years) before petitioning for expungement of the 2013 gross misdemeanor crime. Basically, you need to have a clean criminal history “slate” for a certain period before you can seek an expungement. Still have questions? Feel free to contact us.