Jeff Burns (not his real name) is a reputable engineer. He is married and lives with his wife and three children in their comfortable home in the suburbs. Things for Jeff were not always so nice.
When Jeff was 21 years old, he was arrested for stealing money from his employer to finance his then out of control drug habit. In court, an agreement was reached to temporarily stay the court proceedings. In essence, Jeff was given another chance. He was placed on probation for a period of two years conditioned on his repayment of the money he had stolen and further conditioned on remaining law abiding. Well, Jeff cleaned up his act, attending treatment and repaying the money.
Now, seven years later, Jeff is applying for a position in management. His employer wants him to sign a routine approval to obtain his criminal record. Jeff knows that if his employer learns about the theft, he won't get the job. What can he do?
One answer may be an expungement.
This is often referred to as sealing a record or an
expunction. Minnesota allows all records relating to an arrest, indictment or information, trial, or verdict to be sealed so that they are inaccessible except by a court order. Expungements are available in only a limited number of situations.
There are statutory expungements and judicial
A statutory expungement is on that is
governed by Minnesota statutes. Under Minnesota Statutes Section 609A, an expungement may be available for certain controlled substance offenses, juveniles prosecuted as adults, or criminal proceedings not resulting in a conviction.
In other words, if a person is part of a diversion
program (common for theft or drug offenses) that results
in a dismissal at the end of the program, they may seek
a statutory expungement.
In Jeff's case, prosecution was stayed conditioned on repayment of the money he took and that he remain law abiding. Jeff qualified for an expungement when he completed the conditions of his probation. A petition was filed to seal all arrest records prior to Jeff's job interview. By the time his job application was processed, his criminal records were sealed. Jeff received the management position.
A second type of
expungement is the judicial expungement. This is
an expungement that may be granted in the discretion of
the sentencing Judge if the Judge finds:
that an offender's
constitutional rights may be seriously infringed by
not expunging the record; and
expungement will yield a benefit to the offender
commensurate with the disadvantages to the public
from the elimination of the record.
Some of the factors
that the court considers include:
the nature of the
the amount of time
that has passed since the offense occurred without
any further infractions;
the importance of
the expungement (like joining the military or
obtaining a job).
What records may be expunged by a Judicial
expungement has been a see-saw battle and the matter, though
decided, could still face future challenges. Up until February,
2008, a judicial expungement would only expunge judicial
or court records. Administrative records, such as
those maintained by the Minnesota Bureau of Criminal
Apprehension, could not be expunged. This
was critical since most background checks are conducted
through the centralized database maintained by the
Bureau of Criminal Apprehension.
This changed briefly on
February 12, 2008, when the Minnesota Court of Appeals
decided State v. V.A.J, 744
N.W.2d 674. In that case, the court determined that the court does,
in fact, have the inherent authority to expunge court records and
any records of its agents which includes records maintained by the
Minnesota Bureau of Criminal Apprehension
Unfortunately, the Minnesota State Supreme Court
stepped in and in September the Court ruled in State
v. S.L.H. that district courts do not have the authority
to seal criminal records beyond the courts themselves — a decision
that may be bad for defendants.
The case began in 1992,
when a defendant identified as S.L.H. pleaded guilty to fifth-degree
felony possession of cocaine in Robbinsdale. She was 20. After three
years, the charge was dropped to a misdemeanor. In 2000, a petition
for expungement, or sealing, of her record, was filed, but the
district court denied the request.
She tried again in 2006
arguing that she was a single pmother with four children
and that the expungement was necessary to allow her to find
employment and support her children.
District Court stated it did not have the authority to order
nonjudicial records sealed. Both the Court of Appeals and , in
September, 2008, the state's Supreme Court
The decision affirming the lower court rulings
leaves some room for interpretation. The Supreme Court
indicated that expunging records to grant the defendant employment
opportunities is not "essential" to the function of the court.
That implies that there may be some instances where
expungement is essential to the function of the court.
In other words, there may be circumstances where all records
judiciual and executive may be expunged. As a result, person's
considering expungements should proceeed forward and should not be
dissauaded by the latest decision. The law may change
again, either judiciall or through legislative action, where having
an order expunging records may make the process of sealing or
eliminating all records much easier.
Even if an expungement is not
available, a person convicted of a criminal offense may consider
other options including reopening the criminal case or a petition
for a pardon extraordinary.
A pardon extraordinary is a form of relief created by Minnesota statutes which has the effect of setting aside and nullifying a conviction. If granted by the Board of Pardons, the applicant is no longer required to report the conviction except in very limited circumstances (such as applying for a position in law enforcement)
To qualify for a pardon the applicant may not apply for ten years after any crime that is considered a crime of violence or five years after any non-violent crime. The Board of Pardons consists of three member, the state governor, attorney general and the chief justice of the supreme court. The Board of Pardons meets twice a year to review pardon applications
In 2002, the Board of pardons sent our 119 applications for pardons extraordinary in response to requests. However, very few of those applications were completed and returned. In 2002, Minnesota’s Board of Pardons granted twelve such petitions for offenses ranging from assault to burglary to drug charges.
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