Minnesota Criminal Records Expungement, and Related Topics
Thomas C Gallagher, Minneapolis Criminal Records Expungement Attorney
Public and "non-public" records of an arrest, criminal charge or conviction can: • destroy a person's ability to obtain gainful employment, • impair a person's opportunity to reach their full income-earning potential, • prevent, impair or destroy a person's professional or occupational licenses, • create barriers to person qualifying for quality rental housing, and • diminish and destroy a person's future in many other important ways.
Thomas C Gallagher, Minneapolis criminal defense attorney of Gallagher Criminal Defense Services, has been handling Minnesota criminal records expungement cases, as part of his criminal defense practice, for over 24 years. In that time, he has received hundreds and hundreds of inquires from people desperately wanting to expunge their Minnesota criminal records - after it was all but too late, after they had already pled guilty and been sentenced.
The best time to prepare for an expungement? Before considering making a guilty plea! When it comes to protecting your public record, the maxim "an ounce of prevention is worth a pound of cure," applies. As you will see below, it will be extremely difficult to make a successful expungement motion if you pled guilty or were convicted by guilty verdict.
Gallagher has been quite successful in helping his clients achieve an "expungable outcome" in the first place to the criminal charge - an outcome that should allow for a successful, future expungement motion.
Minnesota law provides for various remedies and strategies for keeping your record clean, or trying to clean it up afterwards. Among those are "expungement" and "pardon extraordinary." A person may have rights under Minnesota expungement law under certain conditions; while, the same might not be said of "pardon extraordinary," since that remedy seems to be only available from a state pardons board, not through the courts.
Minnesota state criminal records expungement law Expungement law under Minnesota state law (as opposed to United States federal law) could be simplified as fitting into four categories:
1. Minnesota Statutes§299C.11. Where the person was never charged or no probable cause ever found by a court, this statute provides for the return of identification (booking) data, and cleaning up records.
2. Minnesota Statutes Chapter 609A. Where (a) a juvenile certified as an adult; or (b) certain first time drug offenders; or (c) certain criminal proceedings not resulting in a conviction (must not be a guilty plea). See Minnesota Statutes §609A.02
3. An "inherent authority of the court" expungement, currently the least attractive option, but the only expungement remedy available to most people who pled guilty or were convicted.
4. Juvenile Expungement. Minnesota Statutes Section 260B.198, Subd. 6, provides for court authority to expunge the juvenile "adjudication of delinquency" at any time that it deems advisable, except when legal custody is transferred by commitment to the commissioner of corrections. The court does have authority to expunge executive branch records under this statute, according to a 2012 Minnesota Court of Appeals case. Minnesota Statutes Section 609A.02, Subd. 2, addresses "juveniles prosecuted as adults," and allows a Petition for Expungement by a person who has been committed to the custody of the Commissioner of Corrections upon conviction of a crime following adult certification, after final discharge by the Commissioner of Corrections; or if the person has been placed on probation by the court under Minnesota Statutes Section 609.135, after discharge from probation following satisfactory fulfillment of it. Neither statute appears to explicitly address the situation of a person convicted and sent to prison after being placed under Extended Juvenile Jurisdiction (EJJ).
The first type of expungement, under Minnesota Statutes §299C.11 provides for the best available remedy. Unfortunately, it is available to a tiny fraction of the people who call Gallagher for help, since it requires that the person was never chargedorno probable cause was ever found. For the lucky few who meet this criteria, they may be able to use the law (and a lawyer like Gallagher) to get the return of idenitification (booking) data, and cleaning up public records.
Minnesota Statutes Chapter 609A. Expungment of criminal records under this statute is only avialable in cases where: (a) juveniles certified as an adult; (b) certain drug defendants (successfully completed disposition under Minnesota Statutes §152.18); (c) others for whom the charge was decided in defendants favor, which appellate cases so far have defined simply as "no guilty plea" (hence, stay of adjudication doesn't work, except Minnesota Statutes §152.18).
See Minnesota Statutes §609A.02. Remedy is now only "sealing" the "public" records (not return of records as with §299C.11). What is sealed can be unsealed by future court order, in the event of future criminal investigation, but is made non-public and generally unavailable.
An "inherent authority of the court" expungement, currently the least attractive option, but the only available to most people who pled guilty or were convicted.
If you were "convicted" or pled guilty to a Minnesota crime, and you would not qualify for expungement under Minnesota Statutes Chapter 609A (as currently written - see above); you could still make a motion to the court for an "inherent authority expungement." But would most likely need a good criminal lawyer, such as Gallagher, to help you with that; and, it could be expected to present significant difficulty.
This type of expungement is currently the least attractive type, due to certain Minnesota appellate court decisions of the past several years. At the risk of oversimplification, some general observations about "inherent authority" expungements, based upon these cases, follow:
a. Separation of powers. Even though the remedy of expungement is an old one, from the courts traditionally, the legislature saw fit to intrude upon the courts jurisdiction and enact statutes addressing expungements. In recent years Minnesota appellate courts have found the "separation of powers doctrine" as a reason to limit judicial "inherent authority" expungements to judicial branch records, and not allow them to affect executive branch records (such as the Minnesota Bureau of Criminal Apprehension, or MN BCA).
b. Since executive branch records are the least accurate and the most available, an "inherent authority" expungement Court Order which does not order executive branch records sealed is arguably worse than no expungement at all (making it an ineffective, absurd remedy). In other words, sealing the court records only, while leaving the "executive branch" BCA records out there in public view, can be worse than doing nothing since law enforcement records are often exaggerated, inaccurate, not updated properly, and more publicly available.
c. Exception. Some cases have made a sealing of all records, from every branch of government, available even for "inherent authority" expungements, where the Petitioner has been able to show the court that the guilty plea or conviction was the result of a denial of Constitutional rights.
d. In 2008 there have been some Minnesota appellate cases which hold out the possibility of some improvement in the law in this area. In addition, there are pending legislative proposals for reform. Keep in mind that, in certain areas of the law, such as court "inherent authority" expungements, the law is less than certain now, and is in a state of flux. While this provides some hope for those in desperate need, it also presents real potential for opposition from prosecutors and the Attorney General's Office.
Minnesota Needs New Legislation Ask your Minnesota legislators and the Governor to either make the expungement statute more available and provide more meaningful remedies - as under former versions; or repeal them entirely to relieve the courts of separation of powers concerns.
Serving The People of the local Mpls - St PaulTwin Cities metropolitan area in Hennepin County, Ramsey County, Anoka, Sherburne, Wright, Carver, Scott, Dakota, and Washington Counties (greater Minnesota only upon special consideration).