HF 479

as introduced - 88th Legislature (2013 - 2014) Posted on 02/11/2013 02:19pm

A bill for an act
relating to public safety; establishing certificates of good conduct and describing
the effects of a certificate and eligibility; appropriating money; amending
Minnesota Statutes 2012, sections 364.03, subdivision 3; 364.09; 609A.03,
subdivisions 1, 2; 611A.06, subdivision 1a; proposing coding for new law in
Minnesota Statutes, chapter 364.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2012, section 364.03, subdivision 3, is amended to read:

Subd. 3.

Evidence of rehabilitation.

(a) A person who has been convicted of a
crime or crimes which directly relate to the public employment sought or to the occupation
for which a license is sought shall not be disqualified from the employment or occupation
if the person can show competent evidence of sufficient rehabilitation and present fitness
to perform the duties of the public employment sought or the occupation for which
the license is sought. Sufficient evidence of rehabilitation may be established by the
production of new text begin a certificate of good conduct under section 364.19 or new text end :

(1) a copy of the local, state, or federal release order; and

(2) evidence showing that at least one year has elapsed since release from any local,
state, or federal correctional institution without subsequent conviction of a crime; and
evidence showing compliance with all terms and conditions of probation or parole; or

(3) a copy of the relevant Department of Corrections discharge order or other
documents showing completion of probation or parole supervision.

(b) In addition to the documentary evidence presented, the licensing or hiring
authority shall consider any evidence presented by the applicant regarding:

(1) the nature and seriousness of the crime or crimes for which convicted;

(2) all circumstances relative to the crime or crimes, including mitigating
circumstances or social conditions surrounding the commission of the crime or crimes;

(3) the age of the person at the time the crime or crimes were committed;

(4) the length of time elapsed since the crime or crimes were committed; and

(5) all other competent evidence of rehabilitation and present fitness presented,
including, but not limited to, letters of reference by persons who have been in contact with
the applicant since the applicant's release from any local, state, or federal correctional
institution.

Sec. 2.

Minnesota Statutes 2012, section 364.09, is amended to read:

364.09 EXCEPTIONS.

(a) deleted text begin This chapter does deleted text end new text begin Sections 364.01 to 364.10 do new text end not apply to the licensing
process for peace officers; to law enforcement agencies as defined in section 626.84,
subdivision 1, paragraph (f); to fire protection agencies; to eligibility for a private
detective or protective agent license; to the licensing and background study process under
chapters 245A and 245C; to eligibility for school bus driver endorsements; to eligibility
for special transportation service endorsements; to eligibility for a commercial driver
training instructor license, which is governed by section 171.35 and rules adopted under
that section; to emergency medical services personnel, or to the licensing by political
subdivisions of taxicab drivers, if the applicant for the license has been discharged from
sentence for a conviction within the ten years immediately preceding application of a
violation of any of the following:

(1) sections 609.185 to 609.21, 609.221 to 609.223, 609.342 to 609.3451, or 617.23,
subdivision 2 or 3;

(2) any provision of chapter 152 that is punishable by a maximum sentence of
15 years or more; or

(3) a violation of chapter 169 or 169A involving driving under the influence, leaving
the scene of an accident, or reckless or careless driving.

This chapter also shall not apply to eligibility for juvenile corrections employment, where
the offense involved child physical or sexual abuse or criminal sexual conduct.

(b) deleted text begin This chapter does deleted text end new text begin Sections 364.01 to 364.10 do new text end not apply to a school district or
to eligibility for a license issued or renewed by the Board of Teaching or the commissioner
of education.

(c) Nothing in this section precludes the Minnesota Police and Peace Officers
Training Board or the state fire marshal from recommending policies set forth in this
chapter to the attorney general for adoption in the attorney general's discretion to apply to
law enforcement or fire protection agencies.

(d) deleted text begin This chapter does deleted text end new text begin Sections 364.01 to 364.10 do new text end not apply to a license to practice
medicine that has been denied or revoked by the Board of Medical Practice pursuant to
section 147.091, subdivision 1a.

(e) This chapter does not apply to any person who has been denied a license to
practice chiropractic or whose license to practice chiropractic has been revoked by the
board in accordance with section 148.10, subdivision 7.

Sec. 3.

new text begin [364.19] CERTIFICATE OF GOOD CONDUCT.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin (a) For purposes of this section, the following terms
have the meanings given in this subdivision.
new text end

new text begin (b) "Petitioner" means the person who files a petition for a certificate of good conduct.
new text end

new text begin (c) "Prosecuting attorney" means the attorney representing the jurisdiction where the
petitioner was convicted or adjudicated delinquent for the crime for which the petitioner
seeks a certificate of good conduct.
new text end

new text begin Subd. 2. new text end

new text begin Petition; filing fee. new text end

new text begin (a) A person who has been convicted or adjudicated
delinquent by a Minnesota state district court for a crime committed in this state may
petition a court for a certificate of good conduct as provided in this section. A petitioner
may seek a certificate for a single crime or multiple crimes. When filing the petition, the
petitioner shall pay a filing fee in the amount required under section 357.021, subdivision
2, clause (1).
new text end

new text begin (b) A person is not eligible for a certificate of good conduct and may not file a
petition under this section if the person has filed a petition for a certificate of good conduct
or expungement in the past two years.
new text end

new text begin Subd. 3. new text end

new text begin Contents of petition. new text end

new text begin (a) A petition for a certificate of good conduct must
be signed under oath by the petitioner and state the following:
new text end

new text begin (1) the name under which the petitioner was convicted or adjudicated and all other
aliases or names by which the petitioner has been known at any time;
new text end

new text begin (2) the petitioner's date of birth;
new text end

new text begin (3) all of the addresses at which the petitioner has resided at any time from the date
of the offense in connection with which a certificate is sought, to the date of the petition;
new text end

new text begin (4) a statement of the reasons why the petitioner is seeking a certificate and why it
should be granted;
new text end

new text begin (5) the date and terms of sentence or disposition and the name of the offense for which
it was imposed; a detailed description of the crime for which the certificate is sought; the
names of the judge and prosecuting attorney; the names of any individuals or businesses
who were victims; whether there is a current order for protection, restraining order, or other
no contact order prohibiting the petitioner from contacting the victims or whether there has
ever been a prior order for protection or restraining order prohibiting the petitioner from
contacting the victims; the court file number; and the date of conviction or adjudication;
new text end

new text begin (6) what steps the petitioner has taken since the time of the offense toward personal
rehabilitation, including treatment, work, or other personal history that demonstrates
rehabilitation;
new text end

new text begin (7) the petitioner's criminal conviction record indicating all convictions or
delinquency adjudications for misdemeanors, gross misdemeanors, or felonies in this
state, and for all comparable convictions or adjudications in any other state, federal court,
or foreign country, whether the convictions or adjudications occurred before or after the
conviction or adjudication for which the certificate is sought;
new text end

new text begin (8) the petitioner's criminal charges record indicating all prior and pending criminal
charges against the petitioner in this state or another jurisdiction, including all criminal
charges that have been continued for dismissal or stayed for adjudication, or have been
the subject of pretrial diversion;
new text end

new text begin (9) all prior requests by the petitioner, whether for the present offense or for any
other offenses, in this state or any other state or federal court, for pardon, return of arrest
records, expungement or sealing of a criminal record, or certificate of good conduct or
similar certificate, whether granted or not, and all stays of adjudication or imposition
of sentence involving the petitioner; and
new text end

new text begin (10) any other information included on the form created by the district court for
certificate of good conduct petitions.
new text end

new text begin (b) If there is a current order for protection, restraining order, or other no contact
order prohibiting the petitioner from contacting the victims or there has ever been a prior
order for protection or restraining order prohibiting the petitioner from contacting the
victims, the petitioner shall attach a copy of the order to the petition.
new text end

new text begin (c) The petitioner shall include with the petition an executed criminal history consent
form, including fingerprints, and a money order or check payable to either the Bureau of
Criminal Apprehension or the court, at the discretion of the court, in an amount equal to
the actual cost to the bureau and the court of conducting the criminal history background
check. A court deciding to receive payment may, at its discretion, accept payment in
the form of a negotiable instrument other than a money order or check and shall pay
the superintendent of the Bureau of Criminal Apprehension directly to conduct the
background check. The superintendent shall conduct the background check by retrieving
criminal history data maintained in the criminal justice information system computers
and shall also conduct a search of the national criminal records repository, including
the criminal justice data communications network. The superintendent is authorized
to exchange fingerprints with the Federal Bureau of Investigation for purposes of the
criminal history check. After concluding the background check, the superintendent shall
provide the court with a copy of the petitioner's criminal record or a statement that the
petitioner is not the subject of a criminal history record at the bureau.
new text end

new text begin Subd. 4. new text end

new text begin Service of petition and proposed order. new text end

new text begin (a) The petitioner shall serve
the petition for a certificate of good conduct and a proposed certificate order on the
prosecutorial office with jurisdiction over the conviction or adjudication for which the
certificate is sought. Service must comply with rule 4.03 or 4.05 of the Minnesota Rules
of Civil Procedure.
new text end

new text begin (b) The prosecutorial office shall make a reasonable and good-faith effort to notify
any victims of the offense for which the certificate is sought who have requested notice
pursuant to section 611A.06. Service under this paragraph does not constitute a violation
of an existing order for protection, restraining order, or other no contact order.
new text end

new text begin (c) The prosecutorial office's notice to victims of the offense under this subdivision
must specifically inform the victims of the victims' right to be present and to submit an
oral or written statement at the hearing described in subdivision 5.
new text end

new text begin Subd. 5. new text end

new text begin Hearing. new text end

new text begin A hearing on the petition shall be held no sooner than 60 days
after service of the petition. If the petition is filed in the judicial district where the offender
was sentenced, the sentencing judge should preside over the hearing when possible. The
prosecuting attorney may be a party to the hearing and represent the interests of the state
at the petition proceedings. A victim of the offense for which a certificate is sought has
a right to submit an oral or written statement to the court at the time of the hearing
describing any conduct of the petitioner that has occurred after the petitioner's sentencing
that is relevant to the issue of whether the petitioner has been rehabilitated, including the
effect of this conduct upon the victim. The court shall receive testimony or evidence from
either party to the petition. When making a decision, the court shall consider the entire
record, including the victim's statement.
new text end

new text begin Subd. 6. new text end

new text begin Eligibility. new text end

new text begin (a) A petitioner is eligible for a certificate of good conduct
under this section if the following conditions are met:
new text end

new text begin (1) the petitioner has been successfully discharged from the sentence or disposition
imposed for the offense for which the certificate is sought and is not under correctional or
probationary supervision for any other offense;
new text end

new text begin (2) if applicable, a period of at least five years has elapsed since the petitioner was
required to register as a predatory offender under section 243.166;
new text end

new text begin (3) the petitioner has never been convicted of a violation of section 609.342,
609.343, 609.344, or 609.3453, or a similar offense from another state or the United States;
new text end

new text begin (4) the petitioner has not been convicted of a crime, other than a violation of chapter
169, for the following period immediately preceding the filing of the petition: (i) for a
person convicted of a violent crime, as defined in section 609.1095, or who was required
to register as a predatory offender, five years; or (ii) for all other persons, three years;
new text end

new text begin (5) the petitioner is not currently charged with a criminal offense;
new text end

new text begin (6) the petitioner demonstrates rehabilitation, which may be shown, among other
ways, by evidence of the petitioner's good character, employment, volunteer activities, or
participation in vocational, educational, treatment, or rehabilitation programs;
new text end

new text begin (7) the petitioner has paid or the court determines the petitioner is making a
good-faith and consistent effort to pay court-ordered fines, restitution, and other costs
related to the crime for which the certificate is sought;
new text end

new text begin (8) for petitions for certificates for crimes where an element of the offense involved
alcohol or a controlled substance, the petitioner is not abusing alcohol or using a controlled
substance;
new text end

new text begin (9) the issuance of the certificate is consistent with the public interest; and
new text end

new text begin (10) any other factor deemed relevant by the court, including, but not limited to, the
severity of the conduct that constituted the offense for which the certificate is sought.
new text end

new text begin (b) The waiting period described in paragraph (a), clause (4), does not include
any period of time that the petitioner is under correctional or probationary supervision
for an offense.
new text end

new text begin (c) As used in paragraph (a), clauses (3) and (4), "convicted" includes a stay of
adjudication, imposition, or execution of sentence.
new text end

new text begin Subd. 7. new text end

new text begin Issuance of certificate. new text end

new text begin The court shall issue a certificate of good conduct
to a petitioner if the petitioner establishes by a preponderance of the evidence that the
petitioner meets the eligibility requirements specified in subdivisions 2, paragraph (b);
and 6, paragraph (a), clauses (1) to (9), and any other factor required by the court under
subdivision 6, paragraph (a), clause (10).
new text end

new text begin Subd. 8. new text end

new text begin Record with Bureau of Criminal Apprehension. new text end

new text begin If a court grants
a certificate of good conduct under this section, the court shall notify the Bureau of
Criminal Apprehension of the court's ruling. The bureau shall record the certificate on
the petitioner's criminal record.
new text end

new text begin Subd. 9. new text end

new text begin Effect of certificate. new text end

new text begin (a) A certificate of good conduct issued under this
section creates a presumption of rehabilitation in favor of the person to whom it was issued
and relieves the person of any state-imposed collateral sanction, as defined in section
609B.050, relating to eligibility for housing, employment, or professional or occupational
licensing arising from a crime for which the certificate was issued. For background
studies under chapter 245C, the commissioner of human services may not disqualify
any individual solely for a crime for which the individual has received a certificate of
good conduct. A disqualified holder of a certificate still must request a set aside. The
commissioner may deny the request only if other factors exist that indicate that the risk of
harm posed by the person outweighs the presumption of rehabilitation under the certificate.
new text end

new text begin (b) A certificate of good conduct has no effect on collateral sanctions that are
unrelated to housing, employment, or licensing.
new text end

new text begin (c) Consistent with paragraph (a) and other applicable law, a housing or licensing
authority or employer may, but is not required to, consider a conviction or delinquency
adjudication that is the subject of a certificate of good conduct when making a housing,
licensing, or employment decision. No cause of action exists against a housing or
licensing authority or employer based on consideration of or a failure to consider a
certificate of good conduct when making a housing, licensing, or employment decision.
This paragraph does not relieve a person from any other legal duty in making a housing,
licensing, or employment decision not related to the conduct that is the subject of the
certificate of good conduct.
new text end

new text begin (d) Evidence relating to a conviction or delinquency adjudication for which a
certificate of good conduct has been issued is inadmissible in a civil action against a
housing or licensing authority or employer for negligence or other fault in making a
housing, licensing, or employment decision if the authority or employer relied on the
certificate when making the underlying decision.
new text end

new text begin (e) The existence of a certificate of good conduct is admissible as evidence of
reasonable care by a person who relied on it when making a housing, licensing, or hiring
decision related to the subject of the certificate.
new text end

new text begin Subd. 10. new text end

new text begin Revocation. new text end

new text begin A certificate of good conduct is revoked by operation of law
if the subject of the certificate is subsequently convicted or adjudicated delinquent for a
new crime. The district court may revoke a certificate of good conduct at any time based
on evidence that the petitioner has not been law abiding or that the petitioner intentionally
provided information in the petition that was false.
new text end

new text begin Subd. 11. new text end

new text begin Limited effect. new text end

new text begin A certificate of good conduct has only the effect given
in this section. A certificate does not act as a pardon or expungement. The certificate
does not relieve the person to whom it was issued of any collateral sanctions or legal
disabilities related to predatory offender registration, eligibility to possess firearms, or
driver's license sanctions. Any crime for which a certificate has been granted may still
be used in any criminal sentencing proceeding and to enhance the charging or sentence
for any crime as provided by law.
new text end

new text begin Subd. 12. new text end

new text begin Crime for misuse. new text end

new text begin Unless a greater penalty is specified elsewhere in
statute, a person who knowingly uses or attempts to use a revoked certificate of good
conduct or who fraudulently alters or forges a certificate of good conduct is guilty of a
gross misdemeanor.
new text end

Sec. 4.

Minnesota Statutes 2012, section 609A.03, subdivision 1, is amended to read:

Subdivision 1.

Petition; filing fee.

new text begin (a) new text end An individual who is the subject of a criminal
record who is seeking the expungement of the record shall file a petition under this section
and pay a filing fee in the amount required under section 357.021, subdivision 2, clause
(1). The filing fee may be waived in cases of indigency and shall be waived in the cases
described in section 609A.02, subdivision 3.

new text begin (b) A person is not eligible for an expungement and may not file a petition under
this chapter if the person has filed a petition for an expungement or a certificate of good
conduct under section 364.19 in the past two years.
new text end

Sec. 5.

Minnesota Statutes 2012, section 609A.03, subdivision 2, is amended to read:

Subd. 2.

Contents of petition.

(a) A petition for expungement shall be signed under
oath by the petitioner and shall state the following:

(1) the petitioner's full name and all other legal names or aliases by which the
petitioner has been known at any time;

(2) the petitioner's date of birth;

(3) all of the petitioner's addresses from the date of the offense or alleged offense in
connection with which an expungement order is sought, to the date of the petition;

(4) why expungement is sought, if it is for employment or licensure purposes, the
statutory or other legal authority under which it is sought, and why it should be granted;

(5) the details of the offense or arrest for which expungement is sought, including
the date and jurisdiction of the occurrence, either the names of any victims or that there
were no identifiable victims, whether there is a current order for protection, restraining
order, or other no contact order prohibiting the petitioner from contacting the victims or
whether there has ever been a prior order for protection or restraining order prohibiting the
petitioner from contacting the victims, the court file number, and the date of conviction
or of dismissal;

(6) in the case of a conviction, what steps the petitioner has taken since the time of
the offense toward personal rehabilitation, including treatment, work, or other personal
history that demonstrates rehabilitation;

(7) petitioner's criminal conviction record indicating all convictions for
misdemeanors, gross misdemeanors, or felonies in this state, and for all comparable
convictions in any other state, federal court, or foreign country, whether the convictions
occurred before or after the arrest or conviction for which expungement is sought;

(8) petitioner's criminal charges record indicating all prior and pending criminal
charges against the petitioner in this state or another jurisdiction, including all criminal
charges that have been continued for dismissal or stayed for adjudication, or have been the
subject of pretrial diversion; and

(9) all prior requests by the petitioner, whether for the present offense or for any
other offenses, in this state or any other state or federal court, for pardon, return of arrest
records, new text begin a certificate of good conduct or similar certificate, new text end or expungement or sealing of
a criminal record, whether granted or not, and all stays of adjudication or imposition of
sentence involving the petitioner.

(b) If there is a current order for protection, restraining order, or other no contact
order prohibiting the petitioner from contacting the victims or there has ever been a prior
order for protection or restraining order prohibiting the petitioner from contacting the
victims, the petitioner shall attach a copy of the order to the petition.

Sec. 6.

Minnesota Statutes 2012, section 611A.06, subdivision 1a, is amended to read:

Subd. 1a.

Notice of expungement new text begin or certificate of good conduct new text end required.

The
prosecuting authority with jurisdiction over an offense for which expungement new text begin or a
certificate of good conduct under section 364.19 new text end is being sought shall make a good faith
effort to notify a victim that the expungement new text begin or a certificate new text end is being sought if: (1) the
victim has mailed to the prosecuting authority with jurisdiction over an offense for which
expungement new text begin or a certificate new text end is being sought a written request for this notice, or (2) the
victim has indicated on a request for notice of deleted text begin expungement deleted text end new text begin release new text end submitted under
subdivision 1 a desire to be notified in the event the offender seeks an expungement new text begin or a
certificate new text end for the offense.

A copy of any written request for a notice of expungement new text begin or a certificate new text end request
received by the commissioner of corrections or other custodial authority shall be
forwarded to the prosecutorial authority with jurisdiction over the offense to which the
notice relates. The prosecutorial authority complies with this section upon mailing a copy
of an expungement new text begin or a certificate new text end petition relating to the notice to the address which the
victim has most recently provided in writing.

Sec. 7. new text begin APPROPRIATIONS.
new text end

new text begin (a) $....... for the fiscal year ending June 30, 2014, and $....... for the fiscal year
ending June 30, 2015, are appropriated to the district courts from the general fund to
implement Minnesota Statutes, section 364.19.
new text end

new text begin (b) $....... for the fiscal year ending June 30, 2014, and $....... for the fiscal year
ending June 30, 2015, are appropriated to the commissioner of public safety from the
general fund to implement Minnesota Statutes, section 364.19.
new text end