HF 3382

1st Engrossment - 86th Legislature (2009 - 2010) Posted on 03/17/2010 12:46pm

A bill for an act
relating to public safety; modifying provisions governing public hearings and
public access to juvenile records; authorizing the expungement of certain
juvenile records; authorizing the commissioner of human services to grant set
asides or variances for certain individuals disqualified from licensure because of
an offense committed as a juvenile; amending Minnesota Statutes 2008, sections
260B.171, subdivisions 4, 5; 609A.02, subdivision 2; 609A.03, subdivisions 1, 2,
4, 5, 5a, 7; Minnesota Statutes 2009 Supplement, section 245C.24, subdivision 2.

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

Section 1.

Minnesota Statutes 2009 Supplement, section 245C.24, subdivision 2, is
amended to read:

Subd. 2.

Permanent bar to set aside a disqualification.

(a) Except as new text begin otherwise
new text end provided in deleted text begin paragraph (b) deleted text end new text begin this subdivision new text end , the commissioner may not set aside the
disqualification of any individual disqualified pursuant to this chapter, regardless of how
much time has passed, if the individual was disqualified for a crime or conduct listed in
section 245C.15, subdivision 1.

(b) For an individual in the chemical dependency or corrections field who was
disqualified for a crime or conduct listed under section 245C.15, subdivision 1, and whose
disqualification was set aside prior to July 1, 2005, the commissioner must consider
granting a variance pursuant to section 245C.30 for the license holder for a program
dealing primarily with adults. A request for reconsideration evaluated under this paragraph
must include a letter of recommendation from the license holder that was subject to the
prior set-aside decision addressing the individual's quality of care to children or vulnerable
adults and the circumstances of the individual's departure from that service.

(c) When a licensed foster care provider adopts an individual who had received
foster care services from the provider for over six months, and the adopted individual is
required to receive a background study under section 245C.03, subdivision 1, paragraph
(a), clause (2) or (6), the commissioner may grant a variance to the license holder under
section 245C.30 to permit the adopted individual with a permanent disqualification
to remain affiliated with the license holder under the conditions of the variance when
the variance is recommended by the county of responsibility for each of the remaining
individuals in placement in the home and the licensing agency for the home.

new text begin (d) The commissioner shall consider granting a set aside under section 245C.22 or a
variance under section 245C.30 to an individual who is now 21 years of age or older and
who was disqualified for a crime or conduct listed under section 245C.15, subdivision 1,
occurring while the individual was under the age of 18. This paragraph does not apply to
individuals who were convicted of the disqualifying crime following certification under
section 260B.125.
new text end

Sec. 2.

Minnesota Statutes 2008, section 260B.171, subdivision 4, is amended to read:

Subd. 4.

Public inspection of records.

(a) Legal records arising from proceedings
or portions of proceedings that deleted text begin are deleted text end new text begin the court opens to the new text end public under section 260B.163,
subdivision 1, are open to public inspection.

(b) Except as otherwise provided by this section, none of the records of the juvenile
court and none of the records relating to an appeal from a nonpublic juvenile court
proceeding, except the written appellate opinion, shall be open to public inspection or
their contents disclosed except:

(1) by order of a court; or

(2) as required by chapter 245C or sections 245A.04, 611A.03, 611A.04, 611A.06,
and 629.73.

(c) The victim of any alleged delinquent act may, upon the victim's request, obtain
the following information, unless it reasonably appears that the request is prompted by a
desire on the part of the requester to engage in unlawful activities:

(1) the name and age of the juvenile;

(2) the act for which the juvenile was petitioned and date of the offense; and

(3) the disposition, including, but not limited to, dismissal of the petition, diversion,
probation and conditions of probation, detention, fines, or restitution.

(d) The records of juvenile probation officers and county home schools are records
of the court for the purposes of this subdivision. Court services data relating to delinquent
acts that are contained in records of the juvenile court may be released as allowed under
section 13.84, subdivision 6. This subdivision applies to all proceedings under this
chapter, including appeals from orders of the juvenile court, except that this subdivision
does not apply to proceedings under section 260B.335 or 260B.425 when the proceeding
involves an adult defendant. The court shall maintain the confidentiality of adoption files
and records in accordance with the provisions of laws relating to adoptions. In juvenile
court proceedings any report or social history furnished to the court shall be open to
inspection by the attorneys of record and the guardian ad litem a reasonable time before it
is used in connection with any proceeding before the court.

(e) When a judge of a juvenile court, or duly authorized agent of the court,
determines under a proceeding under this chapter that a child has violated a state or local
law, ordinance, or regulation pertaining to the operation of a motor vehicle on streets
and highways, except parking violations, the judge or agent shall immediately report
the violation to the commissioner of public safety. The report must be made on a form
provided by the Department of Public Safety and must contain the information required
under section 169.95.

(f) A county attorney may give a law enforcement agency that referred a delinquency
matter to the county attorney a summary of the results of that referral, including the details
of any juvenile court disposition.

Sec. 3.

Minnesota Statutes 2008, section 260B.171, subdivision 5, is amended to read:

Subd. 5.

Peace officer records of children.

(a) Except for records relating to an
offense where new text begin the court opens the new text end proceedings deleted text begin are deleted text end new text begin to the new text end public under section 260B.163,
subdivision 1, Peace officers' records of children who are or may be delinquent or
who may be engaged in criminal acts shall be kept separate from records of persons
18 years of age or older and are private data but shall be disseminated: (1) by order of
the juvenile court, (2) as required by section 121A.28, (3) as authorized under section
13.82, subdivision 2, (4) to the child or the child's parent or guardian unless disclosure
of a record would interfere with an ongoing investigation, (5) to the Minnesota crime
victims reparations board as required by section 611A.56, subdivision 2, clause (6), for the
purpose of processing claims for crime victims reparations, or (6) as otherwise provided in
this subdivision. Except as provided in paragraph (c), no photographs of a child taken into
custody may be taken without the consent of the juvenile court unless the child is alleged
to have violated section 169A.20. Peace officers' records containing data about children
who are victims of crimes or witnesses to crimes must be administered consistent with
section 13.82, subdivisions 2, 3, 6, and 17. Any person violating any of the provisions of
this subdivision shall be guilty of a misdemeanor.

In the case of computerized records maintained about juveniles by peace officers,
the requirement of this subdivision that records about juveniles must be kept separate
from adult records does not mean that a law enforcement agency must keep its records
concerning juveniles on a separate computer system. Law enforcement agencies may keep
juvenile records on the same computer as adult records and may use a common index to
access both juvenile and adult records so long as the agency has in place procedures that
keep juvenile records in a separate place in computer storage and that comply with the
special data retention and other requirements associated with protecting data on juveniles.

(b) Nothing in this subdivision prohibits the exchange of information by law
enforcement agencies if the exchanged information is pertinent and necessary for law
enforcement purposes.

(c) A photograph may be taken of a child taken into custody pursuant to section
260B.175, subdivision 1, clause (b), provided that the photograph must be destroyed when
the child reaches the age of 19 years. The commissioner of corrections may photograph
juveniles whose legal custody is transferred to the commissioner. Photographs of juveniles
authorized by this paragraph may be used only for institution management purposes,
case supervision by parole agents, and to assist law enforcement agencies to apprehend
juvenile offenders. The commissioner shall maintain photographs of juveniles in the same
manner as juvenile court records and names under this section.

(d) Traffic investigation reports are open to inspection by a person who has sustained
physical harm or economic loss as a result of the traffic accident. Identifying information
on juveniles who are parties to traffic accidents may be disclosed as authorized under
section 13.82, subdivision 6, and accident reports required under section 169.09 may be
released under section 169.09, subdivision 13, unless the information would identify a
juvenile who was taken into custody or who is suspected of committing an offense that
would be a crime if committed by an adult, or would associate a juvenile with the offense,
and the offense is not an adult court traffic offense under section 260B.225.

(e) The head of a law enforcement agency or a person specifically given the duty
by the head of the law enforcement agency shall notify the superintendent or chief
administrative officer of a juvenile's school of an incident occurring within the agency's
jurisdiction if:

(1) the agency has probable cause to believe that the juvenile has committed an
offense that would be a crime if committed as an adult, that the victim of the offense is a
student or staff member of the school, and that notice to the school is reasonably necessary
for the protection of the victim; or

(2) the agency has probable cause to believe that the juvenile has committed an
offense described in subdivision 3, paragraph (a), clauses (1) to (3), that would be a crime
if committed by an adult, regardless of whether the victim is a student or staff member
of the school.

A law enforcement agency is not required to notify the school under this paragraph
if the agency determines that notice would jeopardize an ongoing investigation. For
purposes of this paragraph, "school" means a public or private elementary, middle,
secondary, or charter school.

(f) In any county in which the county attorney operates or authorizes the operation
of a juvenile prepetition or pretrial diversion program, a law enforcement agency or
county attorney's office may provide the juvenile diversion program with data concerning
a juvenile who is a participant in or is being considered for participation in the program.

(g) Upon request of a local social services agency, peace officer records of
children who are or may be delinquent or who may be engaged in criminal acts may be
disseminated to the agency to promote the best interests of the subject of the data.

(h) Upon written request, the prosecuting authority shall release investigative data
collected by a law enforcement agency to the victim of a criminal act or alleged criminal
act or to the victim's legal representative, except as otherwise provided by this paragraph.
Data shall not be released if:

(1) the release to the individual subject of the data would be prohibited under
section 13.821; or

(2) the prosecuting authority reasonably believes:

(i) that the release of that data will interfere with the investigation; or

(ii) that the request is prompted by a desire on the part of the requester to engage in
unlawful activities.

new text begin (i) A consent to the release of a peace officer record governed by this subdivision
from the individual who is the subject of the record is not effective and a law enforcement
agency must not release the record or release information in a manner that reveals the
existence of the record.
new text end

Sec. 4.

Minnesota Statutes 2008, section 609A.02, subdivision 2, is amended to read:

Subd. 2.

new text begin Offenses committed by new text end juveniles deleted text begin prosecuted as adults deleted text end .

A petition for
the sealing of deleted text begin a conviction record deleted text end new text begin any type of delinquency or criminal record relating to a
juvenile matter new text end may be filed under section 609A.03 by a person who has deleted text begin been committed
to the custody of the commissioner of corrections upon conviction of a crime following
certification to district court under section 260B.125, if the person deleted text end new text begin successfully completed
the terms of the person's disposition or sentence and who is no longer under correctional
supervision for the offense, if new text end :

(1) deleted text begin is finally discharged by the commissioner; or deleted text end new text begin the person received a disposition
under section 260B.198, regardless of whether the person was adjudicated delinquent;
new text end

(2) deleted text begin has been placed on probation by the court under section 609.135 and has been
discharged from probation after satisfactory fulfillment of it deleted text end new text begin the matter was designated
an extended jurisdiction juvenile prosecution under section 260B.130 and the person's
adult sentence was never executed;
new text end

new text begin (3) the matter was designated an extended jurisdiction juvenile prosecution under
section 260B.130 and the person's adult sentence was subsequently executed; or
new text end

new text begin (4) the matter was certified for adult prosecution under section 260B.125 new text end .

Sec. 5.

Minnesota Statutes 2008, section 609A.03, subdivision 1, is amended to read:

Subdivision 1.

Petition; filing fee.

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, new text begin subdivision 2, clause (1) or (2), and new text end subdivision 3.

Sec. 6.

Minnesota Statutes 2008, 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 new text begin or adjudication delinquency record new text end , 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 new text begin and adjudication delinquency new text end record indicating
all convictions new text begin and adjudication findings of delinquency new text end for misdemeanors, gross
misdemeanors, or felonies in this state, and for all comparable convictions new text begin and adjudication
findings of delinquency new text end in any other state, federal court, or foreign country, whether the
convictions new text begin or adjudication findings of delinquency new text end occurred before or after the arrest deleted text begin or deleted text end new text begin , new text end
conviction new text begin , or adjudication finding of delinquency new text end 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, 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. 7.

Minnesota Statutes 2008, section 609A.03, subdivision 4, is amended to read:

Subd. 4.

Hearing.

new text begin (a) new text end A hearing on the petition shall be held no sooner than 60
days after service of the petition. A victim of the offense for which expungement is
sought has a right to submit an oral or written statement to the court at the time of the
hearing describing the harm suffered by the victim as a result of the crime and the victim's
recommendation on whether expungement should be granted or denied. The judge shall
consider the victim's statement when making a decision.

new text begin (b) The court shall exclude the general public from a hearing on a petition to
expunge a record relating to a juvenile matter under section 609A.02, subdivision 2, and
may admit only persons who the court determines have a direct interest in the case, unless
the hearing on the underlying offense for which expungement is sought was open to the
public under section 260B.163, subdivision 1, paragraph (c), or other law.
new text end

Sec. 8.

Minnesota Statutes 2008, section 609A.03, subdivision 5, is amended to read:

Subd. 5.

Nature of remedy; standard deleted text begin ; firearms restriction deleted text end .

(a) Except as
otherwise provided by paragraph (b) new text begin or (c) new text end , expungement of a criminal new text begin or delinquency new text end
record is an extraordinary remedy to be granted only upon clear and convincing evidence
that it would yield a benefit to the petitioner commensurate with the disadvantages to
the public and public safety of:

(1) sealing the record; and

(2) burdening the court and public authorities to issue, enforce, and monitor an
expungement order.

(b) Except as otherwise provided by this paragraph, If the petitioner is petitioning
for the sealing of a criminal new text begin or delinquency new text end record under section 609A.02, subdivision
3, the court shall grant the petition to seal the record unless the agency or jurisdiction
whose records would be affected establishes by clear and convincing evidence that the
interests of the public and public safety outweigh the disadvantages to the petitioner
of not sealing the record.

(c) new text begin If the petitioner is petitioning for the sealing of a criminal or delinquency record
under section 609A.02, subdivision 2, clause (1) or (2), the court shall grant the petition
to seal the record unless the agency or jurisdiction whose records would be affected
establishes by clear and convincing evidence that the interests of the public and public
safety outweigh the disadvantages to the petitioner of not sealing the record.
new text end

new text begin (d) new text end If the court issues an expungement order it may require that the criminal new text begin or
delinquency new text end record be sealed, the existence of the record not be revealed, and the record
not be opened except as required under subdivision 7. Records must not be destroyed or
returned to the subject of the record.

Sec. 9.

Minnesota Statutes 2008, section 609A.03, subdivision 5a, is amended to read:

Subd. 5a.

Order concerning crimes of violence.

An order expunging the record
of a conviction new text begin or adjudication delinquency record new text end for a crime of violence as defined
in section 624.712, subdivision 5, must provide that the person is not entitled to ship,
transport, possess, or receive a firearm for the remainder of the person's lifetime. Any
person whose record of conviction new text begin or adjudication delinquency record new text end is expunged under
this section and who thereafter receives a relief of disability under United States Code,
title 18, section 925, or whose ability to possess firearms has been restored under section
609.165, subdivision 1d, is not subject to the restriction in this subdivision.

Sec. 10.

Minnesota Statutes 2008, section 609A.03, subdivision 7, is amended to read:

Subd. 7.

Limitations of order.

(a) Upon issuance of an expungement order related
to a charge supported by probable cause, the DNA samples and DNA records held by
the Bureau of Criminal Apprehension and collected under authority other than section
299C.105, shall not be sealed, returned to the subject of the record, or destroyed.

(b) Notwithstanding the issuance of an expungement order:

(1) an expunged record may be opened for purposes of a criminal investigation,
prosecution, or sentencing, upon an ex parte court order;

(2) an expunged record of a conviction new text begin or adjudication delinquency proceeding new text end may
be opened for purposes of evaluating a prospective employee in a criminal justice agency
without a court order; and

(3) an expunged record of a conviction new text begin or adjudication delinquency proceeding new text end may
be opened for purposes of a background study under section 245C.08 unless the court
order for expungement is directed specifically to the commissioner of human services.

Upon request by law enforcement, prosecution, or corrections authorities, an agency
or jurisdiction subject to an expungement order shall inform the requester of the existence
of a sealed record and of the right to obtain access to it as provided by this paragraph. For
purposes of this section, a "criminal justice agency" means courts or a government agency
that performs the administration of criminal justice under statutory authority.