Written by attorney Carolyn Agin Schmidt

What is an expungement, and do I qualify for one?

An expungement is the sealing of all records or, in some cases, the return of records that one may have as a result of having been arrested or charged with a crime. There are three kinds of expungements under Minnesota Law:

  1. Minnesota Statute Section 299C.11 provides for the return of booking records and clearing the arrest record in cases where the defendant was never charged or probable cause was never found.

  2. Minnesota Statute Section 609A; Statutory expungement cases are those in which the statute specifically gives the judge the authority to expunge your case. These types of cases include those that have been resolved in the favor of the defendant, i.e. a dismissal that does not involve a plea of guilty or an acquittal. The other statutory expungements are if one pleads guilty to a drug crime pursuant to Minnesota Statute Section 152.18, which provides that the defendant may petition for the expungement after successfully completing probation, or when there is a juvenile who was certified as an adult.

If granted a statutory expungement, the defendant is entitled to have all court or judicial branch records sealed as well as executive branch records, which include: police reports, booking information, arrest records, and the prosecutor files.

  1. Minnesota Statute Section 609A; Inherent authority expungements are granted based upon the inherent authority of the court based upon case law, not a specific statute. The factors that the court uses to decide this type of expungement include, but are not limited to, the severity of the crime, how long ago it occurred, whether you have had any other problems with the law, if you have been rehabilitated, and the reasons for seeking the expungement. The court must weight the defendant's need for the relief of the expungement versus society's need to maintain accurate records of criminal convictions.

Inherent authority expungement cases are limited to only the judicial branch records, pursuant to case law that says when a judge is acting under its inherent authority it is a violation of the separation of powers doctrine to order the sealing of the executive branch documents. In other words, the judge cannot tell the police or prosecutor what to do with their records unless there is a statute that allows the judge to do so. Therefore, inherent authority cases can be of very little value because the arrest, police, and prosecutors' records may not be sealed and ultimately may be discovered during a background investigation.

During the 2010 legislative session, there are a few organizations that are attempting to introduce legislation to amend the current statute to expand the types of cases that would be eligible for expungement. This legislation will hopefully expand the relief to those seeking expungements.

The best way to ensure that you are eligible for an expungement is before you plead guilty to a crime. Attorney Carolyn Agin Schmidt has over 20 years of experience successfully resolving cases so the defendant is eligible to clear his or her record in the future.

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