Expungement Waiting Period - Court of Appeals' Decision

One of the ambiguities that surrounded the new law after its change in 2015 was how the expungement waiting period applied. The law provides that a petitioner must be crime free for a period of 1-, 2-, 4-, or 5-years “since discharge” of the offense (essentially, after discharge from probation). The debate was whether this waiting period began immediately for the first set of years after discharge or for the set of years immediately preceding filing the expungement petition.

Despite this clear ambiguity, it never amounted to much debate in the district courts because it has routinely – almost universally – been applied in favor of the petitioner, meaning it’s for the set of years preceding the filing of the petition. This makes sense on a number of fronts and the State attorneys haven’t pushed too hard on this issue. Our attorneys at North Star even have an Order from a Ramsey County judge that currently handles its expungement calendar that thoroughly reviewed this issue and accurately determined that the proper interpretation is as detailed above.

Unfortunately, things may be changed due to an unpublished (a key distinction, which will be discussed below) opinion by the Court of Appeals in State v. C.E.S. In this case, the petitioner was denied her request for an expungement of three separate records. For the first two records, she picked up a subsequent conviction almost immediately after she was discharged from probation on the prior offense. The district court used these facts for a basis to hold that she was ineligible for an expungement because she was not crime free for a set period of years “since discharge” of probation. The petitioner appealed this order and the Court of Appeals summarily approved this holding. This is the most unfortunate part of this decision – because the petitioner was appealing a bad ruling, the applicable standards of review are extremely deferential to the district court’s decision. As a result, it was in a position to summarily approve this holding without diving into any real analysis – this is even more true when the appellant is not represented by counsel. Essentially, it paved the way for the court of appeals to uphold the district courts ruling with ease.

The impact of this decision could be dramatic and leave a lot petitioners that were once eligible for an expungement facing a longer journey to getting their record expunged or, worse yet, not ever being eligible depending on their record. Let me explain why with two hypotheticals:

  1. If a person has multiple records close in time that are eligible, in theory, this person would have to seek an expungement of the records one at a time, working backwards. This leads to an incredibly inefficient and lengthy process, especially when the analysis for the expungements are the same and only improving with the reduction of a record.
  2. Same scenario, except one of the most recent offenses is a felony offense that is not eligible for an expungement. In this scenario, the best the petitioner may be able to do is seal records that post-date the felony conviction and anything before within that waiting period window would never be eligible for an expungement. This leads to an even more absurd result because once-eligible offenses would no longer be eligible due a record that can never be expunged.

The good news is this appellate decision is unpublished, which means it is not automatically binding precedent on courts; instead, it’s more persuasive authority. But, you can be sure to assume that lower courts will find this very persuasive. Still, it can be defeated with the right knowledge about this issue and through the use of other orders from Courts that have extensively reviewed this issue that can be equally persuasive.

If you are seeking to expunge multiple records, the waiting period becomes a much bigger obstacle than it once used to be. It makes retaining an expungement attorney with a deep understanding of the expungement law all but necessary. Contact us now if you find yourself in this situation.