How Do I Get Something Off My Criminal Record? Your Options Under South Dakota Law
People often ask me, "How do I get this off my record?". Usually, it is because something negative shows up when a prospective employer does a background check, or someone wants to legally possess firearms again. This guide addresses the most common issues.
Nothing Truly Goes Away CompletelyThe bad news is that you can't really erase something completely off your record. At best, you are sealing the record and restricting whom can access it. Sealing is a legal fiction: you are pretending as though something that actually and factually happened did not really occur. In that regard, you are working to minimize the impact of an arrest or conviction. Your arrest and conviction record is a permanent record, just like your grades in school: they will always be there to certain people, just like your school will always have a record of your grades. Law enforcement agencies and prosecutors are among the groups that will almost always be able to access your record no matter what. Under no circumstances will the record ever be physically destroyed so that there is no existence of it.
Despite that, having your record sealed typically restores your rights if you were convicted of a felony, and you will be able to truthfully say "No" in relation to a given incident if you are asked if you were ever convicted. These options also minimize collateral consequences like the right to possess firearms, and having your driver's license revoked when they would otherwise be required.
Expungement Is For Arrest RecordsPeople tell me they want to get a conviction expunged. Expungement under South Dakota law refers to your arrest record, though. It does not apply to a record of conviction. That's the first rule of expungement: if you were convicted of anything at all, whether you pleaded guilty, no contest, pled to a lesser charge as a benefit of the bargain, you CANNOT expunge your arrest record. Think about it: it makes no sense that you can expunge your arrest record if the record of conviction is still there!
You can only expunge your arrest record if all charges from an incident were dismissed, or if you were acquitted at trial of all charges. You may make a motion for expungement at any time after acquittal. If the prosecutor dismissed all charges, or if you were arrested but never officially charged, you must wait one year before making a motion for expungement.
Expungement is NOT automatic, nor ever guaranteed. You will have a hearing where you have to convince a judge by clear and convincing evidence that it is in the interest of justice as well as the best interest of the public that your arrest record be expunged. The standard to arrest someone is probable cause, but the burden to convict someone is guilt beyond reasonable doubt. If the judge finds that there was probable cause to arrest you, your arrest record is likely going to stand as an accurate reflection of what actually happened. South Dakota law also requires you serve notice upon the prosecuting agency that handled or was referred your case so that they have an opportunity to contest the expungement. Finally, expungement is a civil action, and not heard out of the same criminal file. This means that you will have to pay the court filing fee to try to expunge your record, whether you are successful or not.
Suspended Imposition of Sentence: The Judicial OptionA suspended imposition of sentence is a special grant of judicial clemency. If you have pleaded guilty to an offense, at the time of sentencing, you can ask the judge to suspend imposition of sentence. The judge will place you on probation (likely formal if it is a felony offense, or informal, self-supervised if it is a misdemeanor). If you are successful at the end of your probationary period and have complied with all terms, the judge will sign an order sealing your record. You must wait until the end of your probationary period before the record will be sealed. Effective July 1st, 2016, you get two suspended impositions of sentence in your lifetime in South Dakota: one for misdemeanors and one for felonies.
This is the most common way for people to get things sealed off their record. They ask for it up front, and they demonstrate they are deserving. Like expungement of an arrest record, the person seeking the suspended imposition of sentence must demonstrate it is in the best interest of justice and society as whole to have this opportunity. Keep in mind that violating the terms of a suspended imposition of sentence (like getting arrested again for the same offense!) means not only can you be prosecuted for the new offense, the suspended imposition of sentence can be revoked and sentence imposed. You do NOT get a new suspended imposition of sentence if you have one revoked. And expect a harsher sentence from the judge had you never requested a suspended imposition of sentence at all.
So what if you've already pleaded guilty and been convicted? South Dakota law allows a judge to modify a sentence within two years. Some judges might actually deny the request for suspended imposition at the time of sentencing and advise the person, if successful on probation, to ask again towards the end of the probationary period or to wait one year. If you did NOT request a suspended imposition of sentence at all, you will likely have to explain the change of circumstances to the judge that is prompting your request. It can be done, just be prepared for it.
Sometimes judges expect more from you if you are seeking a suspended imposition of sentence. Example: if your blood alcohol content is at or above a .17%, State law requires you get a chemical dependency evaluation if convicted of Driving Under the Influence, even a 1st Offense. The judge will likely expect follow-through with the recommendations of the evaluation, including at least a 12-hour DUI education course, even if no treatment is recommended, if you want a suspended imposition of sentence.
A special warning: you are NOT entitled to a court-appointed attorney to help you with a sentence modification! Court-appointed attorneys (e.g., Public Defenders) will represent you when you are charged with an offense, but you do not have the right to have an attorney appointed to help you go back and get a better outcome than you originally received. Unfortunately, "My public defender wouldn't return my phone calls until it was too late and now they're saying they can't help me with this" is NOT an excuse for not getting your sentence modification completed within two years.
Pardons: The Executive OptionWhat if it's been more than two years since you were convicted and sentenced? Your judicial remedy is gone; you can no longer go back and seek to modify sentence to suspend its imposition. Your last remaining option is executive clemency: to ask the governor for a pardon through the Board of Pardons and Parole (BoPP).
The good news is that the BoPP tries to make this as user-friendly a process as possible, so that people don't absolutely need to hire an attorney for this. That doesn't mean it will be easy, quick, or that there aren't important steps to follow. Just like expungement, you have to provide notice to the prosecutor's office from where you were convicted to give them an opportunity to object or provide input. In particular if you are seeking a restoration of rights like firearm rights, you will have to explain why your rights should be restored. And like all the other options, you will have to demonstrate that it is in the best interest of society and for justice to receive a pardon. The BoPP has the necessary forms and a checklist available on their website.
Depending upon how serious of a crime you were convicted and how long it's been, you can apply for an exceptional pardon or an expedited pardon. An exceptional pardon applies if it's been more than five years since you were released from custody if you were sentenced to prison for your first, non-violent felony (and it was not a Class C or higher felony, meaning not punishable by a maximum of life without parole), or if you were convicted of a misdemeanor. An exceptional pardon does NOT require you to publish in the newspaper that you are seeking a pardon. An expedited pardon may apply if you are seeking a pardon for a misdemeanor offense and it has been at least five years (ten years for a non-violent, Class 1 misdemeanor), and you are NOT seeking restoration of firearm rights.
A Special Note on Low-Level OffensesSenate Bill 97 became law on July 1st, 2016. This provides for the automatic removal of the lowest level offenses from a person's record after ten years if all terms and court-ordered conditions of the sentence have been satisfied. It applies to Class 2 misdemeanors, municipal (city) offenses, and petty offenses. Some examples of offenses it would apply to would be speeding tickets, failure to obey a traffic control device, seatbelt violations, Petty Theft in the 2nd Degree (under $400 value), and Possession of Drug Paraphernalia. This ONLY applies if the most serious offense(s) charged is or are Class 2 misdemeanors or lower. So if, for example, someone was charged with domestic simple assault (Class 1 misdemeanor) and pleaded guilty to a reduced charge of disorderly conduct (Class 2 misdemeanor), that will NOT get sealed automatically after ten years.
Like everything else, however, the record is not destroyed forever and to everyone. It will still be available to court personnel, law enforcement agencies, and prosecutors. However, it won't show up to those conducting background checks through the court system.