MINNESOTA EXPUNGEMENT LAW THE SECOND CHANCE LAW AND HOW IT CHANGES EXPUNGEMENT LAW IN MINNESOTA.

WHAT IS A CRIMINAL RECORD? More than just convictions. Any interaction with police, court, or other law enforcement agency creates a "record.” Usually available to the public for review. In MN, can use non-conviction records to make determinations in employment, housing, etc.

IMPACT ON LOW INCOME CLIENTS Huge impact on the poor. Reduction in benefit programs for the poor — no safety net. Unemployment and housing issues have enormous impact. Leads to lack of employment, housing, homelessness, family's dissolving, etc. Expungement is a remedy for all, but can make a big difference for the poor.

Where are the Records? Courts BCA (Bureau of Criminal Apprehension)** (Diff databases) Police/Sheriff Department of Human Services/MN Dept. of Health Corrections/Probation/Diversion Programs County Attorney/City Attorney Diversion Programs The battle with expungement is what records you are able to get

Problems with Old Law No way to get expungement of records held by BCA, DHS, MDH and other executive branch agencies. Statute was narrow. Court was required to use its “inherent authority” to expunge records. Case law identified Court did not have inherent authority to tell executive branch what to do with its records. Separation of powers concerns. Partial expungement even if you won.

Four types of criminal expungement in MN: MS 299c.11 "administrative": seals law enforcement & BCA MS Ch 609A "statutory": seals all agency records (new changes) Inherent Authority State v. SLH: seals court records absent “appropriate circumstances.” Juvenile Delinquency MS 260B.198, sub. 6.

Return of Arrest Record Minn. Stat. § 299C.11. Remedy permits deleting data from an agency's database. Simple letter does the trick. Not effective for most people. Who is eligible? Non conviction, case never even touched by the court, arrested but no charges filed, AND no felony or GM convictions in 10 years before the arrest.

MINNESOTA’S SECOND CHANCE LAW On May 14, 2014, Governor Dayton signed into law Minnesota’s Second Change Law. The law went into effect on January 1, Important changes to many areas of criminal expungement law. Addresses limitations on expungement of executive branch records. Language of some aspects of new law is unclear.

Overview of Changes Law amended Minn. Stat. ch. 609A. Expands statutory expungement to most petty misdemeanor, misdemeanor, and gross misdemeanor convictions. (big deal because court can use its statutory power to expunge executive branch records). Creates list of selected felonies eligible for expungements. Creates waiting period for most expungement cases. (not proceedings resolved in favor) New 12-factor list judge should use in balancing benefit to petitioner vs. detriment to public and burden on Court. Creation of expungement without petition - with prosecutor agreement/notification. Juvenile Expungement changes. Changes to burdens. Discussed later.

No Separation of Powers Issues By adding explicit criteria to the statute, the court is no longer acting under its “inherent authority” and is merely using statutory authority to expunge records. Huge change – no separation of powers issues. Court can now provide those eligible individuals with a full expungement that includes DHS and BCA, etc. Why no separation of power? Court is acting with the approval of legislative branch and Executive (governor signed the law). Case law has long addressed no sep of power issues with statutory expungement.

What stayed the same? Certain controlled substance offenses – Minn. Stat. § Juveniles Prosecuted as Adults Proceedings resolved “in favor” of petitioner. Long case law history of what this term of art means. Under new law, this is less important, because other relief is available. If resolved in favor, then no filing fee, and burden is on objecting party – not petitioner. No waiting period for the above-cited bases for expungement.

New Categories for Expungement Diversion and Stay of Adjudication: Not technically an “in-favor” resolution, this allows petitioner to seek expungement after ONE YEAR since completion of sentence. Also, petitioner may not have been “charged with a new crime for at least one year since completion of sentence. Will address this weird language later. BURDEN ON STATE to show record should be retained. Clear and convincing standard - huge! Often missed. Petty or Misdemeanor Conviction: TWO Year waiting period since discharge of sentence and not convicted of new crime in those two years. Gross Misdemeanor conviction: FOUR YEAR waiting period since discharge of sentence and not convicted of new crime in those four years.

Waiting periods Begin period when all terms of case met. Not when convicted, sentenced, etc. When probation over. You don’t win the case when period expires. Court has statutory jurisdiction when expires. Can you file 3 months before and wait for hearing after expiration term? Yes, if you can get away with it. Some objecting agencies will cite must have waiting period fulfilled when filed.

Felony Category - New Felony Expungement: Lists 50 felony offenses eligible for expungement. Weird list – assaulting a police horse, altering livestock certificate, evasion of fuel tax, rustling and livestock theft. Missing? Assault, burglary… FIVE YEAR waiting period. If not in the list, then no statutory expungement and back to seeking expungement under court’s inherent authority – flawed and cannot get executive branch records (BCA, DHS, MDH).

12 Factors in New Balancing Test Nature and severity of offense; The risk petitioner poses to public; Length of time since offense occurred; Rehabilitation; Mitigating factors – level of participation and context of offense; Hardship (employment/housing/other) THIS IS IMPORTAN to document. Petitioner’s complete criminal record; Record of employment of community involvement; Recommendations of LE, prosecution; Recommendation of victims and age of victims; Restitution issues; and Any other factor Court deems relevant. TIP- address the factors in your petition/memo/and proposed Order.

Stayed Sentence Issue “the petitioner was convicted of or received a stayed sentence for a felony violation of an offense listed in paragraph (b), and has not been convicted of a new crime for at least five years since discharge of the sentence for the crime.” What’s the big deal? Stay of imposition. Starts as a felony, but reduces to Misd. Which is it? Affects Felony Expungements and timing for all other expungements with stay of adjudication. Example: Chris was convicted of Felony drug offense (2 nd deg. possession) received a stay of adjudication, and when finished with sentence reduced to Misdemeanor. If treated as a felony, then Chris is not eligible for a statutory expungement because that felony is not included in the list of eligible felony convictions. If treated like misdemeanor, she is eligible. Example #2: Plea to GM offense, stay of adjudication to M. Wait 2 or 4 years? Same issue.

Stayed Sentence Cont’d. Not clear what this means – need a decision from Court of Appeals. Arguments – Offenses should be treated as they end up – not as they start. Minn. Stat. § addresses stays of imposition. Notes, a felony conviction is deemed a misdemeanor or GM if individual meets terms of stay of imposition. Counter Argument: Plain meaning of statute includes stays and must include stays of imposition. Currently, courts are split on this and getting results that are inconsistent.

Subsequent Offense Issue 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. Problem. What is convicted of a crime within 2 years but nothing else for 12 years? Absurd Results. Older cases NEVER eligible for statutory expungement if a subsequent offence. Example.

DHS Objections DHS is aggressive in filing objections and asks to be excluded from expungement Order. Argue expungement is a way to circumvent background study laws. DHS can/will disqualify individual even in non-conviction cases if it determines POE. Example – Domestic assault charge, dropped without prosecution. DHS Dq’d person – lost job. Sought Expungement but DHS cites it should be able to make POE determination because lower burden. Need to fight these.

Other Issues Multiple offenses – Expungement for offenses for which registration required – still prohibited. DUI/DWI are NOT prohibited. Other Prohibited – if offense is PM, M, or GM conviction for offense that involved domestic abuse, or sexual assault, or violation of OFP and HRO. Sunset on prohibition is July 15, Still prohibited after sunset if felony level. No Petition cases – not sure how this will work. Diversion or Stay of adjudication can occur at time plea is entered. Great way to include expungement in plea. New Forms from court harder to fill out – still pretty lean and no memo.

Inherent Authority What is an inherent authority expungement? A way to expunge anything that does not fit under the expungement statutes. A creature of case law. Scope of relief has expanded and contracted every few years. Filed in district court where the offense occurred. Follows procedures of MS Ch. 6o9A. The issue: in what circumstances may a district court judge seal criminal records maintained outside of the judicial branch? Judicial records are usually not a legal issue.

Juvenile Offenses Changes to 260B.198, subd. 6: The court may expunge all records relating to delinquency at any time if the court determines 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 and the burden on the court and public agencies or jurisdictions in issuing, enforcing, and monitoring the order. Big changes from previous version of law that only allowed records of adjudication to be expunged. Left some records. In Re the Welfare of JJP essentially overturned by this positive change.

8 Factors For Juvenile Expungement (1) the age, education, experience, and background, including mental and emotional development, of the subject of the record at the time of commission of the offense; (2) the circumstances and nature and severity of the offense, including any aggravating or mitigating factors in the commission of the offense; (3) victim and community impact, including age and vulnerability of the victim; (4) the level of participation of the subject of the record in the planning and carrying out of the offense, including familial or peer influence in the commission of the offense; (5) the juvenile delinquency and criminal history of the subject of the record; (6) the programming history of the subject of the record, including child welfare, school and community-based, and probation interventions, and the subject's willingness to participate meaningfully in programming, probation, or both; (7) any other aggravating or mitigating circumstance bearing on the culpability or potential for rehabilitation of the subject of the record; and (8) the benefit that expungement would yield to the subject of the record in pursuing education, employment, housing, or other necessities.

Side Notes No prohibition against expungement of any offense. Sex offenses, violent offenses, not prohibited. Hard to win, but not prohibited. Different Burden – Petitioner must show, by preponderance of evidence that benefits outweighs the burden on court and threat to public safety. Adult expungement law has clear and convincing standard. pro se forms for juvenile expungement? Serve DHS or they won’t be included in expungement. Reporting Agencies.