Expungement Attorney in MN – Ryan Garry
The Minnesota expungement law underwent a major facelift for 2015. In fact, if it used to be Clark Kent, it is now Superman. For the first time in a long time, you have a decent chance to erase your past mistakes and start anew. Thanks to the Minnesota legislature, the governor, and rock star attorneys like Kelly Keegan, the vast majority of criminal convictions will at some point be eligible for the magic eraser.
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So can you get your criminal case expunged? The answer to that question depends, of course, but this article will help you break it down. There are two types of expungements available for people with criminal convictions: statutory and inherent authority. Most every case requires a waiting period after your discharge from probation. During this time, you must remain crime-free. If you do pick up a new charge, the expungement-waiting clock starts over. The best decision you can make is to find a qualified expungement attorney in Minnesota.
Two Types of Expungement
1. Statutory Expungement (can expunge all records):
There are certain types of cases that almost guarantee an expungement in Minnesota. The law states that the court SHALL grant an expungement for cases resolved in the individual’s favor unless an agency holding the records proves to the court that the records should not be expunged. These cases include:
• Acquittals (not-guilty verdicts) (no waiting period)
• Dismissals (judge or prosecutor dismisses the case) (no waiting period)
• Continuances for Dismissal (no plea was entered) (anytime after discharge from probation)
• Diversion cases (no plea was entered) (1 year after discharge from probation)
• Stays of Adjudication (pled guilty but judge did not accept plea) (1 year after discharge from probation)
If you don’t qualify for a “presumptive” statutory expungement, it is your burden to prove you deserve an expungement to the Court (proof of housing or job denial, etc). There must be a reason to expunge a record (anticipation of a problem is most often not enough). Finding an expert expungement attorney in Minnesota is the best way to start the process. Below is a breakdown of when you can seek a statutory expungement (remember, during the waiting times, you must remain crime-free or the clock starts over):
• Petty Misdemeanor convictions (2 years after discharge from probation)
• Misdemeanor convictions (2 years after discharge from probation)
• Gross Misdemeanor convictions (4 years after discharge from probation)
• Some Felony convictions (5 years after discharge from probation)
You or a Minnesota expungement attorney can petition to expunge ANY case at ANY time. However, if it does not fall into the statutory expungement categories listed above, or you are lacking the corresponding waiting periods, you can only petition under the court’s “inherent authority.” In this situation, the court can ONLY seal the judicial (court) records (not the BCA or police or prosecutor’s records). This remedy rarely has any benefit unless there are no records held by any other governmental branch (such as some petty misdemeanor cases or cases where you were not booked).
In any of the cases that place the burden of proof on you (any case other than resolutions in your favor) … the court must look to a number of factors to determine whether you deserve an expungement:
(1) the nature and severity of the crime;
(2) the risk you pose to individuals or society;
(3) the length of time since the crime occurred;
(4) the steps you took toward rehabilitation following the crime;
(5) aggravating or mitigating factors relating to the crime, including your level of participation and context and circumstances of the crime;
(6) the reasons for the expungement, including your attempts to obtain employment, housing, or other necessities;
(7) your criminal record;
(8) your record of employment and community involvement;
(9) recommendations of interested law enforcement, prosecutorial, and corrections officials;
(10) recommendations of victims or whether victims of the crime were minors;
(11) the amount, if any, of restitution outstanding, your attempts to pay it, and the measures in place to help ensure completion of restitution; and
(12) other factors deemed relevant by the court
* The final factor is a catch-all factor that allows you to raise any and all other issues for the court to consider in granting an expungement.
Minnesota Felony Convictions
We mentioned above that some felony convictions can be expunged through statutory authority. Only certain felony convictions, however, will qualify for expungement and most of them fall within level one or two of the sentencing guidelines. The more commonly seen felony convictions that qualify for statutory expungement are:
• Fifth Degree Controlled Substance (low level drug offenses)
• Assault of a Police Horse
• Voting Violations
• Theft of $5000 or less
• Possession or Sale of Stolen Goods
• Receiving Stolen Goods
• Dishonored Check over $500
• Embezzlement of Public Funds
• Criminal Damage to Property
• Forgery and Aggravated Forgery
• Check Forgery
• Furnishing a Firearm to a Minor
• Interference with Privacy
• Finance Transaction Card Fraud
• Computer Theft
• Movie Pirating
You can petition for statutory expungement of other felonies under the court’s inherent authority. Remember, however, that this remedy is minimally beneficial because the court can only expunge its own records. Thus, even if you win … the police, BCA, prosecutor, Department of Human Services, etc. will still hold and disclose your felony conviction. Obviously, this just ain’t worth it.
What Convictions Cannot Be Expunged? (Now)
The legislature has put a six month ban on certain violent domestic crimes, which means that they cannot be statutorily expunged period (you could petition for expungement under the court’s inherent authority, but you will likely be unsuccessful and any success will be extremely limited). These offenses are:
• Domestic Assault crimes
• Sexual Assault crimes
• Harassment Retaining Order (HRO) violations
• No Contact Order violations
• Domestic Assault No Contact Order (DANCO) violations
• Order for Protection (OFP) violations
• Stalking violations
* The ban on expunging these offenses expires July 15, 2015—if the legislature does not renew the ban, you can petition to expunge these convictions
Stay tuned to see if these offenses will soon become eligible for expungement.
How Do You Know if it Worked?
As long as your Minnesota expungement lawyer requests that you or your lawyer be notified, agencies must notify you when your records have been sealed. Unlike before, now when you request that a particular agency (like the courts, the BCA, etc.) erase your record, the agencies have to send you notice that the record has, in fact, been sealed.
The new law leaves open a few questions. First, can you expunge DWI and related alcohol driving cases? Technically, the new law allows for these expungements despite a prohibition earlier. However, a different law (Minn. Stat. § 171.12, subdiv. 3(4)) requires the DMV to maintain its files on DWI and related cases. Consequently, the expungement is complete because a driving record check will disclose the offenses. Our hunch is that courts will not be expunging DWI and related cases.
Second, how is a “stay of imposition” treated? A “stay of imposition” means that a felony conviction (or gross misdemeanor) reverts to a misdemeanor at the end of probation. The law can be read one of two ways. First, that the ending conviction is the standard. Second, that the beginning conviction is the standard. This is important because it instructions you how long you must wait. If you pled guilty to a felony and received a “stay of imposition” of sentence (the becomes a misdemeanor at the end of probation), the court may determine that you must wait the 5 years (and then the felony must fall into the specific list) or the court may determine that you must wait 2 years (for the end result being a misdemeanor). We suspect that prosecutors will take the position that you must wait the amount of time connected to what you pled to (the felony or gross misdemeanor). We don’t know how courts will rule on this yet but we are currently litigating a “stay of imposition” expungement and will be in touch soon.
Third, how are “stays of imposition” with vacate and dismiss cases treated? This kind of resolution is unique to Hennepin and Ramsey Counties. Minneapolis expungement lawyers are very familiar with this type of resolution. Ramsey County had been treating these resolutions as resolutions in your favor. Hennepin had not. With this type of resolution, you plead guilty and are convicted but when probation expires, the case is dismissed. It’s a hybrid of a stay of imposition and a stay of adjudication. We, again, don’t know what courts will do yet.
Fourth, how are 152.18 “stay of adjudication” cases treated in first-time drug offenses? There is a separate statute for expungement of a 152.18 stay of adjudication that places the burden of proving you deserve an expungement on you … the petitioner. However, it is a stay of adjudication and could arguably be expunged under the general stay of adjudication expungement law that does not place the burden on you.
When picking an attorney to help with your expungement, you need a litigatory who is well-versed in this new law and who is creative in making the arguments that will be most favorable for you. Minnesota expungement attorneys Ryan Garry and Elizabeth Duel have had great success in many cases expunging their clients’ criminal history even prior to this new favorable law.
* A special thanks to Kelly Keegan heading up the MACDL Legislative Committee for her work in zealously making sure this law passed.