MINNESOTA JUDICIAL TRAINING UPDATE

Transcription

1 MINNESOTA JUDICIAL TRAINING UPDATE MINNESOTA S NEW EXPUNGEMENT LAW A STEP-BY-STEP GUIDE FOR JUDGES & ATTORNEYS Minnesota s New Second Chance Law: Under the new expungement law, effective January 1, 2015, many Minnesotans with a criminal record impeding their chances for employment and other opportunities can now pursue a second chance by petitioning for expungement of their record. Unlike the previous law, which for most petitioners provided only partial or meaningless relief, this new second chance law will provide a meaningful and full remedy. Note: The expungement petition, instructions, and new court orders can be downloaded from the Judicial Branch Public Website. See M.S. 609A.01-04; (House File #2576). Definition of Expungement: An expungement is a court-ordered sealing of a person s criminal record, which may be held by several government agencies. A person seeking an expungement typically must prove by clear and convincing evidence that expungement (sealing of the record) would yield a benefit to petitioner that outweighs the detriment to the public and public safety. The record is not destroyed and may be opened under specific circumstances prescribed by statute. (M.S. 609A.03, subd. 5 & 7a). Definition of Criminal Record : In addition to records relating to the criminal charges, sentencing and disposition, criminal records may also include: arrest data, transcripts of 911 calls, criminal investigative data, booking photographs, identification and DNA data. (M.S , 299C.10 and 299C.105). Where are the records kept? The above information (i.e. the criminal record) may be held by some or all of the following government agencies: Bureau of Criminal Apprehension (BCA), Minnesota Court Information System (local courts and state-wide MNCIS), Department of Public Safety (i.e. driving records), police departments, city or county attorney s offices, sheriff s departments, Attorney General s Office, Department of Corrections, and Department of Human Services (DHS). There are Two Types of Expungements and Why the Law of Expungements Had to be Fixed: 1) Statutory Expungement The New Future: (M.S. 609A.02) Under the old law, statutory expungments were limited to three restrictive statutory grounds. As a result, few defendants qualified for this type of expungement. The new law dramatically expands the statutory grounds upon which a full expungement can now be based. See I below for an explanation of why this type of expungement is the new future. 2) Inherent Authority Expungement A viable but limited option: In the past, if someone did not qualify for a statutory expungement, they could apply for an expungment under the court s inherent authority. The problem was that this type of expungement could only seal records held by the Judicial Branch; they did not seal records held by the Executive Branch (i.e. the BCA, etc.). The practical result was that the allimportant BCA public records, which are most often used during criminal background checks, remained unsealed. The result was a remedy that for most people was meaningless. However, see II below for an explanation of when and why this type of expungement remains a viable option in some cases.

2 I. STATUTORY EXPUNGEMENT 7 GROUNDS & 1 EXCEPTION- M.S. 609A.02 subd. 1, 2 & 3: There are now seven (7) grounds upon which a statutory expungement can be granted. ( 4-7 are new): 1) Subd. 1 - Original Ground First-time drug possession offenses (M.S stay of adjudication): 2) Subd. 2 - Original Ground Offenses committed by juveniles who were prosecuted as adults: 3) Subd. 3 (1) Original Ground Criminal Cases Resolved in favor of the petitioner : Under this section, the burden of proof shifts to the state to show by clear and convincing evidence that petitioner is not entitled to expungement. Note: Over the years, courts have interpreted resolved in favor of the petitioner narrowly to mean only when there has been no admission or finding of guilt. (i.e. dismissal, acquittal or completion of a diversion program with no finding or admission of guilt. ) 4) Subd. 3 (2) New Ground Diversion Programs or Stays of Adjudication (With Admission of Guilt): The petitioner has 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 since completion of the diversion program or stay of adjudication. Under this section, similar to # 3 above, the burden of proof shifts to the state if the petitioner seeks an expungement on this ground. Legislative Intent: Although not specifically stated in the statute, I ve been told (by several reputable sources) that it was the legislature s clear intent that the one year waiting period under this section apply to diversion programs that involved a finding or admission of guilt. Diversion programs that do not involve a finding or admission of guilt are considered resolved in favor of the petitioner and remain subject to expungement under the old law (section #3) above, without the one-year waiting period as required under the new law. 5) Subd. 3 (3) New Ground Misdemeanor & Petty Misdemeanor: The petitioner was convicted of or received a stayed sentence for a petty misdemeanor or misdemeanor and has not been convicted of a new crime for at least two years since discharge of the sentence for the crime, (see DWI below); 6) Subd. 3 (4) New Ground Gross Misdemeanor: The petitioner was convicted of or received a stayed sentence for a gross misdemeanor and has not been convicted of a new crime for at least four years since discharge of the sentence for the crime, (see DWI below); or 7) Subd. 3 (5) New Ground Selected Felonies: The petitioner was convicted of or received a stayed sentence for a selected felony and has not been convicted of a new crime for at least five years since discharge of the sentence for the crime. The new law identifies 50-plus low-level, nonviolent felonies that can be expunged. A list of these eligible felonies is attached to this update. (See Attachment A ). EXCEPTION CRIMES OF DOMESTIC VIOLENCE 7/15/15: None of the new grounds for expungement apply to crimes of domestic violence, such as domestic abuse, sexual assault, violations of an order for protection (OFP) or a restraining order, stalking, and violations of a domestic abuse no contact (DANCO) order UNTIL JULY 15, Unless the 2015 legislature decides to treat these offenses differently they will be subject to expungement just like any other misdemeanor or gross misdemeanor effective July 15th. WHAT ABOUT DWI s? Although the new law technically includes DWI s (i.e. they are not specifically excluded), the 2015 legislature may be revisiting this issue. By allowing full expungement of DWI offenses, the new law conflicts with M.S , subd. 3(4) which requires the DPS to maintain records of all DWI convictions and specifically states that such records must be retained permanently.

3 II. INHERENT AUTHORITY EXPUNGEMENT Still a viable but extremely limited option: What the Supreme Court says: The court s power to grant an expungement under its inherent authority originates from case law, not the legislature. The Minnesota Supreme Court in State v. M.D.T., 831 N.W.2d 276 (Minn. 2013) relied upon the separation-of-powers argument when holding that a district court has inherent authority to expunge only its own records and not those held by the executive branch. How the new law corrects this problem: The new second chance law fixes this major problem by dramatically expanding the statutory grounds upon which a full expungement can be granted. Qualified petitioners can now obtain court orders that seal both judicial and executive records, providing petitioners with a full and meaningful remedy. Note: The new law does not limit or change a person s ability to petition the court for an expungement under the court s inherent authority. For example: Inherent Authority Expungements remain a viable option for cases such as: Some people do not want to wait out the time period required under the statute or perhaps have received a pardon or a judicial set aside. Some people do not have BCA records because they were never booked. Some people must act quickly because a potential employer has told them to get an expungement and come back with the court order. These people may be more interested in simply obtaining a judge s order of expungement (on any level even if it only applies to judicial records and not BCA records). Some people may have a felony conviction that is not eligible for a statutory expungement (see Attachment A ) but they nonetheless believe a partial expungement order is better than none at all. Other people look at expungement as a certificate of rehabilitation and still find value in it despite limitations on which records can be sealed. This type of expungement order may serve to quell concerns that potential employers or landlords have upon discovering the criminal record. In addition, a petitioner can demand that the BCA update its records to reflect that Judicial Records have been expunged. See M.S , subd 4. III. BEFORE GRANTING EXPUNGEMENT THE COURT MUST CONSIDER 12 FACTORS: 1. The nature and severity of the underlying crime, the record of which would be sealed; 2. The risk, if any, the petitioner poses to individuals or society; 3. The length of time since the crime occurred; 4. The steps taken by the petitioner toward rehabilitation following the crime; 5. Aggravating or mitigating factors relating to the underlying crime, including the petitioner s level of participation and the context and circumstances of the underlying crime; 6. The reasons for the expungement, including the petitioner s attempts to obtain employment, housing or other necessities; 7. The petitioner s criminal record; 8. The petitioner s record of employment and community involvement; 9. The recommendations of interested law enforcement, prosecutorial and corrections officials; 10. The recommendations of victims or whether victims of the underlying crime were minors; 11. The amount, if any, of restitution outstanding, past efforts made by the petitioner toward payment, and the measures in places to help ensure completion of restitution payment after expungement of the record if granted; and, 12. Other factors deemed relevant by the court. M.S.609A.03, subd. 5(c).

4 IV. TEN (10) ADDITIONAL FACTS ABOUT THE NEW LAW YOU NEED TO KNOW: 1. Expungement by Agreement of Prosecutor without a Petition M.S. 609A.025: The new law allows for expungement by agreement of the prosecutor, with approval of the judge, without the need to file a petition. A new court order has been created for judges to order expungement in cases that do not require the filing of a petition. Note: The new order can be downloaded from CourtNet (see form EXP108). Please note that CourtNet is a secured judicial site and is accessible only by court employees. For those that cannot access CourtNet, I have enclosed a copy of the new order. See Attachment B. a. If this occurs, the court shall seal the criminal record, unless the court determines on its own authority that the interests of the public and public safety in keeping the record public outweigh the disadvantages to the subject of the record in not sealing it. b. In addition, the prosecutor shall make a good faith effort to notify any identifiable victim of the offense of the intended agreement and the opportunity to object to the agreement. c. In stay of adjudication and diversion cases under the new law, the agreement for expungement without a petition may occur before or after the charges are dismissed. 2. Ordering Expungement Even if Defendant Still Owes Restitution M.S. 609A.03, subd. 5(c)(11): The new law allows the court to order expungement even if the defendant still owes restitution. However, if a case is ordered expunged when the defendant still owes financial obligations, any payments by the defendant cannot be processed, and the victim cannot get paid. NOTE: To ensure victims continue receiving restitution payments, the expungement order must include language staying the expungement order until all financial obligations on the case are paid in full. This will ensure the case remains accessible while fines and restitution are still being paid. If the judge does not want the expungement order stayed, all remaining financial obligations should be waived when the case is ordered expunged. All new expungement orders have been amended to include this language. 3. Eviction Records: Immediate Expungement if Defendant Prevails M.S. 504B.345, subd. 1 (c) (2): If the court or jury enters a finding in favor of the defendant (tenant), the court may expunge the housing eviction records under M.S or under the court's inherent authority at the time the housing court judgment is entered or after that time upon motion of the defendant (tenant). 4. Expungement of Juvenile Records M.S. 260B.198, subd. 6(a): The court may expunge all records relating to delinquency at any time if the court determines [by a preponderance of the evidence] that expungement of the record would yield a benefit to the subject of the record that outweighs the detriment to the public and public safety in sealing the record. There are 8 factors the court must consider when making the determination. (Includes Juvenile petty offenses - M.S. 260B.235, subd. 9.) 5. Defendant s Right to Request Confirmation that Records Have Been Expunged M.S. 609A.03, subd 8 If requested in the petition, each agency and jurisdiction receiving the order must send a letter to the petitioner at an address provided in the petition confirming the receipt of the expungement order and that the record has been expunged. 6. Data Harvesters - Business Screening Services M.S , subd. 3a: If a business screening service knows that a criminal record has been sealed, expunged, or is the subject of a pardon, the screening service shall promptly delete the record. The statute does not address the issue of mug shots.

5 7. Government Agency Sharing of Expunged Records M.S. 609A.03, subd. 7a: The new law includes provisions allowing government agencies to access expunged records without a court order. Some government agencies may share expunged records with each other without a court order based on this provision. However, judicial approval will still be required before expunged judicial branch records can be disclosed to other government agencies or the public. 8. Department of Health & Services (DHS) Background Checks - M.S. 609A.03, subd. 7a: The new law makes it clear that sealed records of a conviction may be opened without a court order for a DHS background study (under M.S. 245C.08) unless the commissioner had been properly served with notice of the petition for expungement and the order was directed specifically to the Commissioner of Human Services. Note: The same rule applies (but without the notice requirement) for background checks conducted by the Board of Teaching or the licensing division of the Department of Education per M.S. 122A.18, subd Private or Confidential Data Submitted in Response to a Petition for Expungement: Under M.S. 609A.03, subd. 3(d) a governmental agency or jurisdiction that is served with a petition for expungement may submit to the court private or confidential data on the petitioner that the agency or jurisdiction determines is necessary to respond to the petition. The government shall inform the court and the petitioner that the submission contains private or confidential data. Note: The petitioner may file a request with the court to seal the private or confidential data submitted by the government. Court Administration staff will need to watch for such submissions and seal the documents as required. 10. Civil Action for Violations of Expungement Order M.S. 609A.04: Under the new law, individuals will be able to maintain a civil action against any government agency that knowingly opens or exchanges an expunged record in an unauthorized manner. The state is deemed to have waived any immunity claim for any action brought under this section. Potential civil sanctions are outlined in the statute. V. ONE MAJOR UNCERTAINTY INTERPRETATION OF STAY OF IMPOSITION : The most obvious ambiguity in the new law is how the courts will interpret a stay of imposition for purposes of determining whether a conviction may be expunged. Does the court treat a stay of imposition as a felony, as charged and initially convicted, or as a misdemeanor, as the conviction is later deemed upon completion of probation? The distinction is significant. For example, if the conviction is deemed a felony, the criminal record may not be expunged if the offense is not included on the statutory list of eligible felonies (see list of eligible felonies Attachment A ). But, if the conviction is deemed a misdemeanor, then any conviction may be expunged. Second, there is a three-year difference in the waiting period. The Debate: It is unclear what the legislature intended. Arguments can be made on either side of this issue. On one hand, the criminal record following a stay of imposition will reflect the conviction being a misdemeanor conviction, not a felony. On the other hand, the plain language of the new law refers to the offense that the petitioner was convicted of or received a stayed sentence for. And in most cases, that would be a felony, not a misdemeanor. Judicial discretion will control until we get an appellate decision. RESOURCES: This update was prepared based on materials authored by Attorney Kelly Keegan, Brandt Criminal Defense, ; kkeegan@brandtdefense.com (sample orders are available on request) and by Attorney James Gempeler, Gempeler Law, PLLC, , Katie.Jacoby@courts.state.mn.us; Karen.Jaszewski@courts.state.mn.us. This Training Update can also be accessed on the Minnesota Judicial Training Blog at:

6 ATTACHMENT A LIST OF 50-PLUS FELONIES THAT CAN BE STATUTORILY EXPUNGED M.S. 609A.02, subd. 3, paragraph (b) (1) M.S (altering livestock certificate); (2) M.S. 62A.41 (insurance regulations); (3) M.S. 86B.865, subdivision 1 (certification for title on watercraft); (4) M.S (controlled substance - 5th degree); or (sale of simulated controlled substance); (5) M.S. 168A.30, subd 1 (certificate of title false information); or , subd 14, paragraph (a), clause (2) (accident resulting in great bodily harm); (6) M.S. 201; 203B; or 204C (voting violations); (7) M.S ; ; ; ; or (false bill of lading); (8) M.S (false declaration in assistance application); (9) M.S. 296A.23, subdivision 2 (willful evasion of fuel tax); (10) M.S. 297D.09, subdivision 1 (failure to affix stamp on scheduled substances); (11) M.S. 297G.19 (liquor taxation); or 340A.701 (unlawful acts involving liquor); Exception Convictions Requiring Registration: Conviction for offenses that require registration under M.S (murder, kidnapping, certain criminal sex crimes, indecent exposure, criminal abuse, false imprisonment, and prostitution and sex trafficking involving a minor) may NOT be expunged. This provision remains in place from the old law. (12) M.S. 325F.743 (precious metal dealers); or 325F.755, subdivision 7 (prize notices and solicitations); (13) M.S , subdivision 10 (failure to control regulated animal); (14) M.S ; or (gambling regulations); (15) M.S (contempt); (16) M.S , subdivision 1, clauses (2) to (5) (coercion); (17) M.S (leaving state to evade establishment of paternity); (18) M.S , subdivision 4, paragraph (a), clause (2) or (4) (escape from M.I. civil commitment); (19) M.S (failure to appear in court); (20) M.S , subd. 3, clause (3)(a) (theft of $5,000 or less), or other theft offense that is sentenced under this provision; or , subd. 3a, clause (1) (theft of $1,000 or less with risk of bodily harm); (21) M.S (bringing stolen goods into state); (22) M.S , subdivision 2, clause (2) (metal dealer receiving stolen goods); (23) M.S , subdivision 5b (possession or use of scanning device or reencoder); , subdivision 3, clause (3) (possession or sale of stolen or counterfeit check); or (mail theft);

7 (24) M.S (receiving stolen goods); (25) M.S , subdivision 2a, paragraph (a), clause (1) (dishonored check over $500); (26) M.S , clause (1) (embezzlement of public funds $2,500 or less); (27) M.S (rustling and livestock theft); (28) M.S , subdivision 1a, paragraph (a) (wildfire arson); (29) M.S , subdivision 1, clause (3), item (iii) (negligent fires); (30) M.S , subdivision 1, clauses (2) to (4), and subd. 1a, paragraph (a) (crim damage to property); (31) M.S , subdivision 3, clause (3) (assaulting or harming police horse); (32) M.S (aggravated forgery); (forgery); , subdivision 4, clause (3)(a) (check forgery $2,500 or less); (obtaining signature by false pretense); (recording, filing forged instrument); or (fraudulent statements); (33) M.S , clause (1) (false certification by notary); or , subd 4, paragraph (a) (lottery fraud); (34) M.S (fraudulent driver's license and identification card); (35) M.S , subdivision 1a, paragraph (a) (discharge of firearm; silencer); or , subdivision 1b (furnishing firearm to minor); (36) M.S , subdivision 2, paragraph (b) (duty to render aid); (37) M.S , subdivision 2 (tampering with fire alarm); (38) M.S , subd. 1, paragraph (e) (interference with privacy; subsequent violation or minor victim); (39) M.S , subdivision 2 (interference with cable communications system); (40) M.S , subdivision 2 (financial transaction card fraud); (41) M.S (residential mortgage fraud); (42) M.S , subdivision 2 (bribery of participant or official in contest); (43) M.S , subdivision 2, paragraph (c), clause (1) (interference with transit operator); (44) M.S (computer damage); or (computer theft); (45) M.S , subdivision 2 (telecommunications and information services fraud); (46) M.S , subdivision 3 or 4 (cellular counterfeiting); (47) M.S , subdivision 3, paragraph (a) or (b) (counterfeited intellectual property); (48) M.S (movie pirating); (49) M.S , subdivision 15, paragraph (b) (transfer pistol to minor); , subdivision 1a (pistol without permit; subsequent violation); or , subd. 2 (transfer of pistol to ineligible person); or (50) M.S (rifle or shotgun in public by minor).

8 ATTACHMENT B State of Minnesota County Judicial District: Court File Number: Case Type: District Court Criminal State of Minnesota, Plaintiff Order Concerning Sealing/Expunging of Records Without Petition vs. Minn. Stat. 609A.025 Date of Birth, Defendant FINDINGS OF FACT 1. The Petitioner (the Defendant named above) was charged with the crime(s) of: 2. The above-entitled criminal action was determined in favor of the Petitioner; 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 since completion of the diversion program or stay of adjudication; The Petitioner was convicted of or received a stayed sentence for a petty misdemeanor or misdemeanor and has not been convicted of a new crime for at least two years since discharge of the sentence for the crime; The Petitioner was convicted of or received a stayed sentence for a gross misdemeanor and has not been convicted of a new crime for at least four years since discharge of the sentence for the crime; or The Petitioner was convicted of or received a stayed sentence for a felony violation of an offense listed in Minn. Stat. 609A.02, subd. 3(b):, and has not been convicted of a new crime for at least five years since discharge of the sentence for the crime.

9 3. The prosecutor has agreed to the sealing of the petitioner s criminal record. Minn. Stat. 609A.025 (a). 4. The interests of the public and public safety in keeping the record public do do not outweigh the disadvantages to the subject of the record in not sealing it. Minn. Stat. 609A.025 (a). 5. Petitioner was was not convicted of an offense that requires registration under Minn. Stat Minn. Stat. 609A.02, subd The prosecutor has has not made a good faith effort to notify any identifiable victims as required by Minn. Stat. 609A.025 (b). 7. There is is not a nexus between the criminal record to be expunged and the Petitioner s status as a crime victim. Minn. Stat. 609A.03, subd. 6a. IT IS ORDERED: 1. The request for sealing/expunging of records is denied. 2. The request for sealing/expunging of records is granted. All official records, including all records relating to the arrest, indictment or complaint, trial and dismissal, shall be sealed by the agencies indicated in paragraph 4 below and the existence not disclosed without court order, except as authorized by law. 3. That for this offense only, all finger and thumb prints, photographs and other identification data except for DNA samples, and all copies of duplicates thereof, shall be sealed by the agencies indicated in paragraph 4 below. 4. This order applies to the following agencies: District Court County Sheriff City Attorney County Attorney City Police Dept. Probation/Court Services Department: Bureau of Criminal Apprehension Department of Corrections Department of Public Safety Department of Human Services Department Natural Resources Minnesota Attorney General

10 5. This order, which finds a nexus between the criminal record and the Petitioner s status as a crime victim, restores the Petitioner to the status occupied before the arrest. The Petitioner will not be guilty of perjury for failure to acknowledge the arrest or proceeding in response to any inquiry made for any purpose. 6. The court administrator shall send a copy of this expungement order to each agency and jurisdiction whose records are affected, and send a copy of this order to the Petitioner along with notice identifying each agency that was sent a copy of the order. 7. The Petitioner shall continue to be prohibited from shipping, transporting, possessing, or receiving a firearm for the remainder of the Petitioner's lifetime if the conviction was for a crime of violence and an order was not issued under Minn. Stat , subd. 1d. 8. Other: NOTE: This order is stayed for 60 days, during any appeal, and until any remaining restitution or other financial obligation on the case is paid in full. Records will not be sealed/expunged until after this time. Dated: Judge of District Court