HF 2215

1st Engrossment - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to government data practices; providing a 
  1.3             statutory process for expungement of certain arrest or 
  1.4             conviction records; modifying grounds for expungement 
  1.5             in certain cases; amending Minnesota Statutes 1994, 
  1.6             sections 242.31, subdivision 2; and 299C.13; Minnesota 
  1.7             Statutes 1995 Supplement, sections 152.18, subdivision 
  1.8             1; 242.31, subdivision 1; and 299C.11; proposing 
  1.9             coding for new law as Minnesota Statutes, chapter 
  1.10            609A; repealing Minnesota Statutes 1994, sections 
  1.11            152.18, subdivision 2; 242.31, subdivision 3; 609.166; 
  1.12            609.167; and 609.168. 
  1.13  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.14     Section 1.  Minnesota Statutes 1995 Supplement, section 
  1.15  152.18, subdivision 1, is amended to read: 
  1.16     Subdivision 1.  If any person who has not previously 
  1.17  participated in or completed a diversion program authorized 
  1.18  under section 401.065 or who has not previously been placed on 
  1.19  probation without a judgment of guilty and thereafter been 
  1.20  discharged from probation under this section is found guilty of 
  1.21  a violation of section 152.024, subdivision 2, 152.025, 
  1.22  subdivision 2, or 152.027, subdivision 2, 3, or 4, for 
  1.23  possession of a controlled substance, after trial or upon a plea 
  1.24  of guilty, and the court determines that the violation does not 
  1.25  qualify as a subsequent controlled substance conviction under 
  1.26  section 152.01, subdivision 16a, the court may, without entering 
  1.27  a judgment of guilty and with the consent of the person, defer 
  1.28  further proceedings and place the person on probation upon such 
  1.29  reasonable conditions as it may require and for a period, not to 
  2.1   exceed the maximum sentence provided for the violation.  The 
  2.2   court may give the person the opportunity to attend and 
  2.3   participate in an appropriate program of education regarding the 
  2.4   nature and effects of alcohol and drug abuse as a stipulation of 
  2.5   probation.  Upon violation of a condition of the probation, the 
  2.6   court may enter an adjudication of guilt and proceed as 
  2.7   otherwise provided.  The court may, in its discretion, dismiss 
  2.8   the proceedings against the person and discharge the person from 
  2.9   probation before the expiration of the maximum period prescribed 
  2.10  for the person's probation.  If during the period of probation 
  2.11  the person does not violate any of the conditions of the 
  2.12  probation, then upon expiration of the period the court shall 
  2.13  discharge the person and dismiss the proceedings against that 
  2.14  person.  Discharge and dismissal under this subdivision shall be 
  2.15  without court adjudication of guilt, but a not public record of 
  2.16  it shall be retained by the department of public safety bureau 
  2.17  of criminal apprehension for the purpose of use by the courts in 
  2.18  determining the merits of subsequent proceedings against the 
  2.19  person.  The not public record may also be opened only upon 
  2.20  court order for purposes of a criminal investigation, 
  2.21  prosecution, or sentencing.  Upon request by law enforcement, 
  2.22  prosecution, or corrections authorities, the department bureau 
  2.23  shall notify the requesting party of the existence of the not 
  2.24  public record and the right to seek a court order to open it 
  2.25  pursuant to this section.  The court shall forward a record of 
  2.26  any discharge and dismissal under this subdivision to 
  2.27  the department of public safety who bureau which shall make and 
  2.28  maintain the not public record of it as provided under this 
  2.29  subdivision.  The discharge or dismissal shall not be deemed a 
  2.30  conviction for purposes of disqualifications or disabilities 
  2.31  imposed by law upon conviction of a crime or for any other 
  2.32  purpose. 
  2.33     For purposes of this subdivision, "not public" has the 
  2.34  meaning given in section 13.02, subdivision 8a.  
  2.35     Sec. 2.  Minnesota Statutes 1995 Supplement, section 
  2.36  242.31, subdivision 1, is amended to read: 
  3.1      Subdivision 1.  Whenever a person who has been committed to 
  3.2   the custody of the commissioner of corrections upon conviction 
  3.3   of a crime following certification under the provisions of 
  3.4   section 260.125 is finally discharged by order of the 
  3.5   commissioner, that discharge shall restore the person to all 
  3.6   civil rights and, if so ordered by the commissioner of 
  3.7   corrections, also shall have the effect of setting aside the 
  3.8   conviction, nullifying it and purging the person of it.  The 
  3.9   commissioner shall file a copy of the order with the district 
  3.10  court of the county in which the conviction occurred; upon 
  3.11  receipt, the court shall order the conviction set aside.  An 
  3.12  order setting aside a conviction for a crime of violence as 
  3.13  defined in section 624.712, subdivision 5, must provide that the 
  3.14  person is not entitled to ship, transport, possess, or receive a 
  3.15  firearm until ten years have elapsed since the order was entered 
  3.16  and during that time the person was not convicted of any other 
  3.17  crime of violence.  A person whose conviction was set aside 
  3.18  under this section and who thereafter has received a relief of 
  3.19  disability under United States Code, title 18, section 925, 
  3.20  shall not be subject to the restrictions of this subdivision. 
  3.21     Sec. 3.  Minnesota Statutes 1994, section 242.31, 
  3.22  subdivision 2, is amended to read: 
  3.23     Subd. 2.  Whenever a person described in subdivision 1 has 
  3.24  been placed on probation by the court pursuant to section 
  3.25  609.135 and, after satisfactory fulfillment of it, is discharged 
  3.26  from probation, the court shall issue an order of discharge 
  3.27  pursuant to subdivision 2a and section 609.165.  On application 
  3.28  of the defendant or on its own motion and after notice to the 
  3.29  county attorney, the court in its discretion may also order that 
  3.30  the defendant's conviction be set aside with the same effect as 
  3.31  a court order under subdivision 1. 
  3.32     These orders restore This order restores the defendant to 
  3.33  civil rights and purge and free the defendant from all penalties 
  3.34  and disabilities arising from the defendant's conviction and the 
  3.35  conviction shall not thereafter be used against the defendant, 
  3.36  except in a criminal prosecution for a subsequent offense if 
  4.1   otherwise admissible therein.  In addition, the record of the 
  4.2   defendant's conviction shall be sealed and may be opened only 
  4.3   upon court order for purposes of a criminal investigation, 
  4.4   prosecution, or sentencing.  Upon request by law enforcement, 
  4.5   prosecution, or corrections authorities, the court or the 
  4.6   department of public safety shall notify the requesting party of 
  4.7   the existence of the sealed record and the right to seek a court 
  4.8   order to open it pursuant to this section.  
  4.9      Sec. 4.  Minnesota Statutes 1995 Supplement, section 
  4.10  299C.11, is amended to read: 
  4.11     299C.11 [IDENTIFICATION DATA FURNISHED TO BUREAU.] 
  4.12     The sheriff of each county and the chief of police of each 
  4.13  city of the first, second, and third classes shall furnish the 
  4.14  bureau, upon such form as the superintendent shall prescribe, 
  4.15  with such finger and thumb prints, photographs, distinctive 
  4.16  physical mark identification data, and other identification data 
  4.17  as may be requested or required by the superintendent of the 
  4.18  bureau, which may be taken under the provisions of section 
  4.19  299C.10, of persons who shall be convicted of a felony, gross 
  4.20  misdemeanor, or who shall be found to have been convicted of a 
  4.21  felony or gross misdemeanor, within ten years next preceding 
  4.22  their arrest.  Upon the determination of all pending criminal 
  4.23  actions or proceedings in favor of the arrested person, and the 
  4.24  granting of the petition of the arrested person under chapter 
  4.25  609A, the bureau shall, upon demand, have all such finger and 
  4.26  thumb prints, seal photographs, distinctive physical mark 
  4.27  identification data, and other identification data, and all 
  4.28  copies and duplicates thereof, returned, provided of them, if it 
  4.29  is not established by the arrested person that the arrested 
  4.30  person has not been convicted of any felony, gross misdemeanor, 
  4.31  or a similar misdemeanor, either within or without the state, 
  4.32  within the period of ten years immediately preceding such 
  4.33  determination.  The expunged photographs, distinctive physical 
  4.34  mark identification data, and other identification data shall 
  4.35  not be destroyed but shall be sealed and may be opened upon 
  4.36  statutory authorization, or upon an ex parte court order for 
  5.1   purposes of criminal investigation, prosecution, or sentencing.  
  5.2   Finger and thumbprints and DNA samples and DNA records of the 
  5.3   arrested person shall not be returned, sealed, or destroyed.  
  5.4      For purposes of this section, "determination of all pending 
  5.5   criminal actions or proceedings in favor of the arrested person" 
  5.6   does not include: 
  5.7      (1) the sealing of a criminal record pursuant to section 
  5.8   152.18, subdivision 1, 242.31, or 609.168 chapter 609A; or 
  5.9      (2) the arrested person's successful completion of a 
  5.10  diversion program; 
  5.11     (3) an order of discharge under section 609.165; or 
  5.12     (4) a pardon granted under section 638.02. 
  5.13     Sec. 5.  Minnesota Statutes 1994, section 299C.13, is 
  5.14  amended to read: 
  5.15     299C.13 [INFORMATION FURNISHED TO PEACE OFFICERS.] 
  5.16     Upon receipt of information data as to any arrested person, 
  5.17  the bureau shall immediately ascertain whether the person 
  5.18  arrested has a criminal record or is a fugitive from justice, 
  5.19  and shall at once inform the arresting officer of the facts 
  5.20  ascertained.  Upon application by any sheriff, chief of police, 
  5.21  or other peace officer in the state, or by an officer of the 
  5.22  United States or by an officer of another state, territory, or 
  5.23  government duly authorized to receive the same and effecting 
  5.24  reciprocal interchange of similar information with the division, 
  5.25  it shall be the duty of the bureau to furnish all information in 
  5.26  its possession pertaining to the identification of any person.  
  5.27  If the bureau has a sealed record on the arrested person, it 
  5.28  shall notify the requesting peace officer of that fact and of 
  5.29  the right to seek a court order to open the record for purposes 
  5.30  of law enforcement.  A criminal justice agency shall be 
  5.31  notified, upon request, of the existence and contents of a 
  5.32  sealed record containing conviction information about an 
  5.33  applicant for employment.  For purposes of this section, a 
  5.34  "criminal justice agency" means a court or a government agency 
  5.35  that performs the administration of criminal justice under 
  5.36  statutory authority and which allocates a substantial part of 
  6.1   its annual budget to the administration of criminal justice.  
  6.2      Sec. 6.  [609A.01] [CRIMINAL RECORDS EXPUNGEMENT.] 
  6.3      Subdivision 1.  [DEFINITION.] "Expungement" means the 
  6.4   sealing of records and disclosing their existence or opening 
  6.5   them only under court order or statutory authority.  
  6.6   "Expungement" shall not include the destruction of records or 
  6.7   their return to an arrested or convicted individual. 
  6.8      Subd. 2.  [SCOPE OF CHAPTER.] This chapter provides the 
  6.9   grounds and procedure for expungement of criminal arrest or 
  6.10  conviction records under sections 13.82; 152.18, subdivision 1; 
  6.11  299C.11; or other applicable law. 
  6.12     Sec. 7.  [609A.02] [GROUNDS FOR EXPUNGEMENT ORDER.] 
  6.13     Subdivision 1.  [CERTAIN CONTROLLED SUBSTANCE 
  6.14  OFFENSES.] Upon the dismissal and discharge of proceedings 
  6.15  against a person under section 152.18, subdivision 1, for 
  6.16  violation of section 152.024, 152.025, or 152.027 for possession 
  6.17  of a controlled substance, or on other grounds permitted by law, 
  6.18  the person may petition under section 609A.03 for expungement of 
  6.19  all records relating to the arrest, indictment or information, 
  6.20  trial and dismissal and discharge. 
  6.21     Subd. 2.  [JUVENILES PROSECUTED AS ADULTS.] A petition for 
  6.22  expungement of a conviction record may be filed under section 
  6.23  609A.03 by a person who has been committed to the custody of the 
  6.24  commissioner of corrections upon conviction of a crime following 
  6.25  certification to district court under section 260.125, if the 
  6.26  person: 
  6.27     (1) is finally discharged by the commissioner; or 
  6.28     (2) has been placed on probation by the court under section 
  6.29  609.135 and has been discharged from probation after 
  6.30  satisfactory fulfillment of it. 
  6.31     Subd. 3.  [EXPUNGEMENT PROHIBITED.] Expungement shall not 
  6.32  be sought and shall not be granted for the record of a 
  6.33  conviction of an offense for which registration is required 
  6.34  under section 243.166. 
  6.35     Sec. 8.  [609A.03] [PETITION TO EXPUNGE CRIMINAL ARREST OR 
  6.36  CONVICTION RECORDS.] 
  7.1      Subdivision 1.  [PETITION; FILING FEE.] An individual who 
  7.2   is the subject of a criminal arrest or conviction record who is 
  7.3   seeking the expungement of the record shall file a petition 
  7.4   under this section and pay a filing fee in the amount required 
  7.5   under section 357.021, subdivision 2, clause (1).  The filing 
  7.6   fee may be waived in cases of indigency.  
  7.7      Subd. 2.  [CONTENTS OF PETITION.] A petition for 
  7.8   expungement shall be signed under oath by the petitioner and 
  7.9   shall state the following: 
  7.10     (1) the petitioner's full name and all other legal names or 
  7.11  aliases by which the petitioner has been known at any time; 
  7.12     (2) the petitioner's date of birth; 
  7.13     (3) all of the petitioner's addresses from the date of the 
  7.14  offense or alleged offense in connection with which an 
  7.15  expungement order is sought, to the date of the petition; 
  7.16     (4) why expungement is sought, if it is for employment or 
  7.17  licensure purposes, the statutory or other legal authority under 
  7.18  which it is sought, and why it should be granted; 
  7.19     (5) the details of the offense or arrest for which 
  7.20  expungement is sought, including date and jurisdiction of the 
  7.21  occurrence, court file number, and date of conviction or of 
  7.22  dismissal; 
  7.23     (6) in the case of a conviction, what steps the petitioner 
  7.24  has taken since the time of the offense toward personal 
  7.25  rehabilitation, including treatment, work, or other personal 
  7.26  history that demonstrates rehabilitation; 
  7.27     (7) the petitioner's criminal conviction record indicating 
  7.28  all convictions for misdemeanors, gross misdemeanors, or 
  7.29  felonies in this state, and for all comparable convictions in 
  7.30  any other state, federal court, or foreign country, whether the 
  7.31  convictions occurred before or after the arrest or conviction 
  7.32  for which expungement is sought; and 
  7.33     (8) all prior requests by the petitioner, whether for the 
  7.34  present arrest or conviction or for any other arrest or 
  7.35  conviction, in this state or any other state or federal court, 
  7.36  for pardon, return of arrest records, or expungement or sealing 
  8.1   of a criminal record, whether granted or not, and all stays of 
  8.2   adjudication or imposition of sentence involving the petitioner. 
  8.3      Subd. 3.  [SERVICE OF PETITION.] The petition for 
  8.4   expungement and a proposed expungement order shall be served by 
  8.5   mail on the state and local government agencies and 
  8.6   jurisdictions whose records would be affected by the proposed 
  8.7   order.  Service shall also be made by mail on the attorney for 
  8.8   each agency and jurisdiction. 
  8.9      Subd. 4.  [HEARING.] A hearing on the petition shall be 
  8.10  held not sooner than 60 days after service of the petition.  
  8.11     Subd. 5.  [NATURE OF REMEDY; STANDARD; FIREARMS 
  8.12  RESTRICTION.] (a) Expungement of an arrest or conviction record 
  8.13  is an extraordinary remedy to be granted only upon clear and 
  8.14  convincing evidence that it would yield a benefit to the 
  8.15  petitioner commensurate with the disadvantages to the public and 
  8.16  public safety of: 
  8.17     (1) sealing the record; and 
  8.18     (2) burdening the court and public authorities to issue, 
  8.19  enforce, and monitor an expungement order. 
  8.20     (b) If the court issues an expungement order it may require 
  8.21  that: 
  8.22     (1) the record of an arrest or conviction shall be sealed, 
  8.23  the existence of the record shall not be revealed, and the 
  8.24  record shall not be opened except as required under subdivision 
  8.25  7; or 
  8.26     (2) the record of a conviction shall not be sealed but 
  8.27  shall indicate that expungement of the record was granted.  
  8.28     (c) An order expunging the record of a conviction for a 
  8.29  crime of violence as defined in section 624.712, subdivision 5, 
  8.30  must provide that the person is not entitled to ship, transport, 
  8.31  possess, or receive a firearm until ten years have elapsed since 
  8.32  the order was entered and during that time the person was not 
  8.33  convicted of any other crime of violence.  Any person whose 
  8.34  record of conviction is expunged under this section and who 
  8.35  thereafter receives a relief of disability under United States 
  8.36  Code, title 18, section 925, is not subject to the restriction 
  9.1   in this paragraph. 
  9.2      Subd. 6.  [ORDER CONCERNING CONTROLLED SUBSTANCE OFFENSES.] 
  9.3   If the court orders the expungement of the record of proceedings 
  9.4   under section 152.18, the effect of the order shall be to 
  9.5   restore the person, in the contemplation of the law, to the 
  9.6   status the person occupied before the arrest, indictment, or 
  9.7   information.  The person shall not be held guilty of perjury or 
  9.8   otherwise of giving a false statement if the person fails to 
  9.9   acknowledge the arrest, indictment, information, or trial in 
  9.10  response to any inquiry made for any purpose. 
  9.11     Subd. 7.  [LIMITATIONS OF ORDER.] (a) Upon issuance of an 
  9.12  expungement order related to an arrest, the finger and 
  9.13  thumbprints, DNA samples, and DNA records held by the bureau of 
  9.14  criminal apprehension or any other law enforcement agency shall 
  9.15  not be sealed, returned, or destroyed. 
  9.16     (b) Notwithstanding the issuance of an expungement order 
  9.17  under this chapter: 
  9.18     (1) an expunged record of an arrest or conviction may be 
  9.19  opened for purposes of a criminal investigation, prosecution, or 
  9.20  sentencing upon an ex parte court order; and 
  9.21     (2) an expunged record of a conviction may be opened for 
  9.22  purposes of evaluating a prospective employee in a criminal 
  9.23  justice agency without a court order. 
  9.24     Upon request by law enforcement, prosecution, or 
  9.25  corrections authorities, an agency or jurisdiction subject to an 
  9.26  expungement record shall inform the requester of the existence 
  9.27  of a sealed record and of the right to obtain access to it as 
  9.28  provided by this paragraph.  For purposes of this section, a 
  9.29  "criminal justice agency" means a court or a government agency 
  9.30  that performs the administration of criminal justice under 
  9.31  statutory authority and which allocates a substantial part of 
  9.32  its annual budget to the administration of criminal justice.  
  9.33     Subd. 8.  [STAY OF ORDER; APPEAL.] An expungement order 
  9.34  shall be automatically stayed for 60 days after filing of the 
  9.35  order and, if the order is appealed, during the appeal period.  
  9.36  A person or an agency or jurisdiction whose records would be 
 10.1   affected by the order may appeal the order within 60 days of 
 10.2   service of notice of filing of the order.  An agency or 
 10.3   jurisdiction or officials or employees thereof need not file a 
 10.4   cost bond or supersedeas bond in order to further stay the 
 10.5   proceedings or file an appeal. 
 10.6      Subd. 9.  [DISTRIBUTION OF EXPUNGEMENT ORDERS.] If an 
 10.7   expungement order is issued, the court administrator shall send 
 10.8   a copy of it to each agency and jurisdiction whose records are 
 10.9   affected by the terms of the order. 
 10.10     Sec. 9.  [REPEALER.] 
 10.11     Minnesota Statutes 1994, sections 152.18, subdivision 2; 
 10.12  242.31, subdivision 3; 609.166; 609.167; and 609.168, are 
 10.13  repealed. 
 10.14     Sec. 10.  [EFFECTIVE DATE; APPLICATION.] 
 10.15     Sections 1 to 9 are effective the day following final 
 10.16  enactment and apply to requests for expungement of criminal 
 10.17  arrest or conviction records initiated on or after that date.