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Basics on Criminal Expungement

Expungement is the process of going to court to ask a judge to seal a court record. It is important to remember that an expunged record is NOT destroyed. The police, FBI, immigration officers, and other public officials may still see sealed court files for certain purposes. Usually, people ask for an expungement when they have been denied a job, housing, or a professional license because of their criminal background. NOTE: Expungement of Eviction Records is a different type of action.

   Criminal Expungement video "What is a Criminal Expungement?" (5 min. video)

Criminal Records at Government Offices

Many government offices keep criminal records, including, but not limited to:

  • courts have records of all cases FILED with the court;
  • police keep records of arrests and investigations; 
  • prosecutors have records of criminal cases;
  • agencies like the Dept. of Human Services may keep records; and 
  • law enforcement agencies (police, State Patrol, etc.) send records to the MN Bureau of Criminal Apprehension ("BCA")

 

IMPORTANT!
The BCA is a common place for people to do background checks. If your criminal case ended in a conviction, records kept by other government offices, such as the BCA, might not get sealed through an expungement action. Getting an expungement also might not help you from being disqualified to work as a caregiver by the MN Dept. of Human Serivces. You need to decide if the effort and cost of asking for an expungement will benefit you.

Types of Cases that May Be Expunged

  • Criminal case ended "in your favor"

Minnesota law allows expungement of a court record if the outcome is "in your favor." Even if you are found "not guilty" in a criminal case, government offices may still have records about your case. For example, if you are arrested and charged, but the prosecutor later decides to dismiss the case, you may ask for an expungement. If you never entered a guilty plea and you successfully completed a pre-trial “diversion program,” you may also qualify for an expungement.

  • Criminal case ended "NOT in your favor"

Expungement of a conviction ("not in your favor") case is possible, but not granted very often. A conviction (pleading guilty or being found guilty) is NOT an outcome "in your favor." Also, if you pled guilty and received a "Stay of Imposition" or a "Stay of Adjudication" and the charge was later dismissed, this is still considered a conviction for expungement purposes. With the exception of certain juvenile and drug court cases, a guilty plea at any point in the case means the outcome was NOT "in your favor."

IMPORTANT!
Criminal laws are very complicated, and knowing when an outcome is "in your favor" can be difficult to figure out. If you have any questions about whether your case was resolved in your favor, ask your court administration or talk to a lawyer.

 

Serious crimes like murder, aggravated assault, driving while intoxicated, and sex offender crimes are never expunged. Convictions of minor crimes may be expunged only if you can show that you have made real changes in your life and that it is very unlikely that you will commit another crime.

For cases that ended "not in your favor," the law limits the judge's power to expunge ONLY the court's records. If you pled guilty or were convicted, the court can only order the court's records sealed. This means that the MN Bureau of Criminal Apprehension ("BCA") will still have a record of your criminal case, and the public can see this record.

Before deciding if it is worthwhile to ask the court for an expungement, you may want to get a copy of your non-public criminal record at the BCA to see if the case you want expunged would still be reported by the BCA. Many employers and landlords get criminal background information from the BCA and would see your criminal record even after the court expunged (sealed) the court's records. Other records of your conviction, such as police and prosecutor records, are also outside the scope of the court's expungement order and will not be sealed. There is one exception to this rule: if not expunging the record violates a person's constitutional rights, the court can order the BCA and others to seal records of a conviction. Talk to a lawyer for more information about this exception.

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No Guarantee of Expungement

There is no guarantee that you will get an expungment. You need to do the paperwork and convince the Judge that, on balance, the benefit to you from getting an expungement is more than the disadvantage it would be for the public to not have access to your criminal record. This generally means you have to prove that:

  1. you have been denied work, housing, or a professional license because of your record;
  2. sealing your criminal record will not negatively affect public safety; and
  3. you have rehabilitated yourself.

Expungement involves a lot of paperwork and attention to detail, and it takes at least 4 months to complete the process. If you decide to go forward and request an expungement, be sure that you talk to a lawyer or, at a minimum, that you understand all of the required procedures and that you carefully follow them.

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Expungement Paperwork & Fees

You must complete all of the necessary Criminal Expungement Forms. Then you make photocopies of your papers and have them served by mail (by another adult, NOT you) to the prosecutor and all other government offices who keep criminal records. Correctly serving all the required government offices is usually the most difficult step for people. Make sure you keep a photocopy of your completed forms for yourself.

Affidavit of Service Instructions & Form  IMPORTANT STEP:  Use Affidavit of Service Instructions & Form EXP104 to serve your expungement papers on the required government offices.

You then file the original papers with the court and pay a filing fee. The filing fee may be waived if your criminal case was dismissed. If you are low income, you may also ask for a fee waiver.

Get Help from a Lawyer

You can ask for an expungement on your own, but it is best to try to get a lawyer's help. If you qualify based on low income, you may be eligible for help from legal aid offices or volunteer attorneys. You also have the right to talk to or hire a private attorney. If free legal help is not available to you and you cannot afford to hire an attorney, you may choose to represent yourself.

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The Court Hearing

You must go to a hearing in court to ask for expungement, unless you get a notice from the court that tells you that you do not have to attend a hearing. On the day of your hearing, you have an opportunity to tell the judge why you need the expungement. The government offices you served with copies have the right to object to an expungement at any time before OR at the hearing. If they object before the hearing, they often send a letter to the judge and send you a copy of the letter. An objection does NOT mean that your expungement will be denied.

You should be prepared to respond to concerns raised by any objecting party when you talk with the judge, and you can respond to any objections made by any party at the hearing. The judge will then decide whether or not to expunge your record, and the court will send you a notice of the decision. If the judge grants the expungement, there is a 60 day waiting period before the records can be officially sealed.

Check with your District Court to see where your hearing will be located. Usually only one hearing is held in an expungement case.

Appearing in court is a very important part of a case, and all parties are expected to arrive early, dress properly, and act respectfully. Read "Tips for Your Day in Court" on how to prepare for your court hearing.

Arrest Records Only

If you were only arrested but not charged with a crime, there will not be a court record for that event. Law enforcement agencies and the BCA, however, may have records of the arrest. There is a non-court process for sealing arrest records. See Expunge Arrest Records for more details. 

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Pardons

The MN Board of Pardons is governed by the law at MN Statutes Ch. 638, and its members include the

The board has the power to grant pardons in certain criminal cases under certain conditions. If you have questions about the pardon application process, you may contact the Board of Pardons office at (651) 361-7171. This is NOT a court process, so if you need help asking for a pardon, you should talk with a lawyer.

 

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