Minnesota Expungements – Getting Your Second Chance

The beginning of 2015 saw an important and needed change to the expungement law, benefiting those that need second chances from their criminal past. The new law makes more Minnesotans eligible for an expungement and they will finally get a meaningful remedy when they successfully petition for an expungement.

Expungement Basics
An expungement is a court-ordered sealing of a criminal record held by several government agencies. Most importantly, an expungement will now include the sealing of records held by the Bureau of Criminal Apprehension (“BCA”), which holds the records most often used in background checks by employers and landlords.

The benefits of an expungement are that the sealed criminal record should not be seen during a criminal background check and the petitioner may be able to say that they were not convicted of a criminal offense. Some stats can better put this into perspective:

• 1 in 4 Minnesotans have some form of a criminal record
• 87% of employers perform background checks on job applicants
• 26% of them would not extend an offer to an otherwise qualified candidate even if there was just a non-violent misdemeanor conviction.
• Certain misdemeanor convictions can result in a 7-year disqualification for licensing through the Department of Human Services (DHS). 

Grounds for an Expungement
In order to have records sealed by the BCA, the petitioner needs to obtain an expungement under statutory grounds. These statutory grounds were expanded under the new law to include convictions of all levels of crimes, including certain felonies. The following are the statutory grounds for seeking an expungement:

1. Certain drug possession offenses resolved under specific statutes;
2. Juveniles prosecuted as an adult;
3. All criminal proceedings were resolved in the petitioner’s favor – meaning there was never an admission or finding of guilt, even if the charges were eventually dismissed;
4. The petitioner successfully completed the terms of a diversion program or stay of adjudication and has not been charged with a new crime for at least one year;
5. The petitioner was convicted of a petty misdemeanor or misdemeanor and has not been convicted of a new crime for at least two years;
6. The petitioner was convicted of a gross misdemeanor and has not been convicted of a new crime for at least four years; and
7. The petitioner was convicted of specified felonies and has not been convicted of a new crime for at least five years.

If the petition for an expungement is on grounds 3 or 4 above, the burden of proof flips to the state, which must prove by clear and convincing evidence that the burden to the public in not having the records outweighs the disadvantages to the petitioner in not having the records sealed. When petitioning on any other ground, the petitioner carries the burden of proving by clear and convincing evidence that the benefit is commensurate with the public’s burden.

The new law lists out 12 factors the courts will consider when analyzing the grounds for the expungement petition:

1. The nature and severity of the underlying crime;
2. The risk the petitioner poses to the public;
3. The length of time since the crime;
4. What rehabilitation steps the petitioner has taken, if any, since the crime;
5. Whether there are any aggravating or mitigating factors of the underlying crime, such as the petitioner’s level of participation, the context, and surrounding circumstances;
6. The reasons the petitioner needs an expungement, including attempts to obtain employment, housing, or other necessities;
7. The petitioner’s entire criminal history;
8. The petitioner’s employment record and community involvement;
9. Any recommendations from the state and its agencies;
10. Any victim input;
11. Whether there is any outstanding restitution and what efforts the petitioner has made to pay it in full; and
12. Other relevant factors.

The most important factors for the petitioner to develop are numbers 4, 6, and 8. The petitioner needs to be able to show some detriment that the criminal record is having on their ability to obtain employment, housing, schooling, etc. And the petitioner should then explain how they’ve bettered themselves since the crime and why they deserve the expungement. This can be shown through rehabilitation efforts, involvement in the community or religious institution, volunteer activities, and getting character letters from family, friends, mentors, counselors, etc.

Agreement with Prosecutor
One unique addition to the expungement law is the ability to bypass the need to file a petition or have a hearing if the prosecutor agrees to the expungement pursuant to Minn. Stat. § 609A.025. In such a scenario, the court shall grant the expungement unless it determines on its own volition that the burden to the public in not having the record sealed outweighs the disadvantages to the petitioner in not getting the expungement. This new section is a great tool for those cases in which the State carries the burden of proof, it’s a low-level type crime, or when the client has demonstrable proof of both the need and rehabilitation efforts, making it a compelling case for the prosecutor to agree to the expungement in advance.

The benefit to this route is that your client will not have to file a petition, pay a filing fee (if applicable), or have a hearing. It streamlines the process tremendously. But beware – if you pursue this route, understand that the law does not provide any guidance as to how to effectuate this agreement with the court and whether it will still be effective against executive agencies like DHS. Although nothing in this section limits its effectiveness, it’s worth advising your client about these risks.

There are plenty more nuances about the new expungement law, but these are the core changes that impact you the most.

If you are assisting a client with petitioning for an expungement, I’d invite you to visit mnexpungements.com to learn more about the process and procedures you need to follow, and for tips on how to improve your case. And if you have any questions, please do not hesitate to contact me.

James H. Gempeler is a criminal defense and expungements attorney at North Star Criminal Defense and practices throughout the State. In addition to representing clients facing all levels of charges, he devotes substantial time to help individuals get the second chance they need through volunteer efforts, and developing and maintaining mnexpungements.com.