HF 3844

as introduced - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

1.1                                        A bill for an act
1.2     relating to public safety; recodifying and restructuring the law on expungements 
1.3     of criminal records; expanding eligibility for expungements; proposing coding 
1.4     for new law as Minnesota Statutes, chapter 609B; repealing Minnesota Statutes 
1.5     2004, sections 609A.01; 609A.02, subdivisions 1, 2, 4; 609A.03, subdivisions 1, 
1.6     2, 3, 4, 5, 5a, 6, 8, 9; Minnesota Statutes 2005 Supplement, sections 609A.02, 
1.7     subdivision 3; 609A.03, subdivision 7.
1.8     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

1.9         Section 1. [609B.01] CRIMINAL RECORDS EXPUNGEMENT.
1.10    This chapter provides the grounds and procedures for expungement of criminal 
1.11    records under section  13.82;  152.18, subdivision 1;  299C.11, where a petition is authorized 
1.12    under section  609B.02; or other applicable law. The remedy available is limited to a court 
1.13    order sealing the records and prohibiting the disclosure of their existence or their opening 
1.14    except under court order or statutory authority. Nothing in this chapter authorizes the 
1.15    destruction of records or their return to the subject of the records. 
1.16    EFFECTIVE DATE.This section is effective August 1, 2006, and applies to 
1.17    expungement petitions filed on or after that date.

1.18        Sec. 2. [609B.02] GROUNDS FOR ORDER.
1.19    A person may petition under section  609B.03 for the sealing of all records relating 
1.20    to the person's arrest, citation, indictment or information, complaint, trial, guilty plea, or 
1.21    verdict regardless of whether the proceedings were resolved in the person's favor. 
1.22    EFFECTIVE DATE.This section is effective August 1, 2006, and applies to 
1.23    expungement petitions filed on or after that date.

2.1         Sec. 3. [609B.03] PETITION TO EXPUNGE CRIMINAL RECORDS.
2.2         Subdivision 1. Petition; filing fee. An individual who is the subject of a criminal 
2.3     record who is seeking the expungement of the record shall file a petition under this section 
2.4     and pay a filing fee in the amount required under section  357.021, subdivision 2, clause 
2.5     (1). The filing fee may be waived if the actions or proceedings that resulted in the criminal 
2.6     record were resolved in favor of the petitioner. 
2.7         Subd. 2. Contents of petition. (a) A petition for expungement shall be signed under 
2.8     oath by the petitioner and shall state the following:
2.9     (1) the petitioner's full name and all other legal names or aliases by which the 
2.10    petitioner has been known at any time;
2.11    (2) the petitioner's date of birth;
2.12    (3) all of the petitioner's addresses from the date of the offense or alleged offense in 
2.13    connection with which an expungement order is sought, to the date of the petition;
2.14    (4) why expungement is sought, if it is for employment or licensure purposes, the 
2.15    statutory or other legal authority under which it is sought, and why it should be granted;
2.16    (5) the details of the offense or arrest for which expungement is sought, including 
2.17    the date and jurisdiction of the occurrence; either the names of any victims or that there 
2.18    were no identifiable victims; whether there is a current order for protection, restraining 
2.19    order, or other no-contact order prohibiting the petitioner from contacting the victims; or 
2.20    whether there has ever been a prior order for protection or restraining order prohibiting the 
2.21    petitioner from contacting the victims; the court file number; and the date of conviction 
2.22    or of dismissal;
2.23    (6) in the case of a conviction, what steps the petitioner has taken since the time of 
2.24    the offense toward personal rehabilitation, including treatment, work, or other personal 
2.25    history that demonstrates rehabilitation;
2.26    (7) the petitioner's criminal conviction record indicating all convictions for 
2.27    misdemeanors, gross misdemeanors, or felonies in this state, and for all comparable 
2.28    convictions in any other state, federal court, or foreign country, whether the convictions 
2.29    occurred before or after the arrest or conviction for which expungement is sought;
2.30    (8) the petitioner's criminal charges record indicating all prior and pending criminal 
2.31    charges against the petitioner in this state or another jurisdiction, including all criminal 
2.32    charges that have been continued for dismissal or stayed for adjudication, or have been the 
2.33    subject of pretrial diversion; and
2.34    (9) all prior requests by the petitioner, whether for the present offense or for any 
2.35    other offenses, in this state or any other state or federal court, for pardon, return of arrest 
3.1     records, or expungement or sealing of a criminal record, whether granted or not, and all 
3.2     stays of adjudication or imposition of sentence involving the petitioner.
3.3     (b) If there is a current order for protection, restraining order, or other no-contact 
3.4     order prohibiting the petitioner from contacting the victims, or there has ever been a prior 
3.5     order for protection or restraining order prohibiting the petitioner from contacting the 
3.6     victims, the petitioner shall attach a copy of the order to the petition.
3.7         Subd. 3. Service of petition and proposed order. (a) The petitioner shall serve by 
3.8     mail the petition for expungement and a proposed expungement order on the prosecutorial 
3.9     office that had jurisdiction over the offense for which expungement is sought and all 
3.10    other state and local government agencies and jurisdictions whose records would be 
3.11    affected by the proposed order. The petitioner shall also serve by mail the attorney for 
3.12    each agency and jurisdiction.
3.13    (b) The prosecutorial office that had jurisdiction over the offense for which 
3.14    expungement is sought shall serve by mail the petition for expungement and a proposed 
3.15    expungement order on any victims of the offense for which expungement is sought who 
3.16    have requested notice of expungement pursuant to section  611A.06. Service under this 
3.17    paragraph does not constitute a violation of an existing order for protection, restraining 
3.18    order, or other no-contact order. 
3.19    (c) The prosecutorial office's notice to victims of the offense under this subdivision 
3.20    must specifically inform the victims of the victims' right to be present and to submit an 
3.21    oral or written statement at the expungement hearing described in subdivision 4.
3.22        Subd. 4. Hearing. A hearing on the petition shall be held no sooner than 60 days 
3.23    after service of the petition. A victim of the offense for which expungement is sought 
3.24    has a right to submit an oral or written statement to the court at the time of the hearing 
3.25    describing the harm suffered by the victim as a result of the crime and the victim's 
3.26    recommendation on whether expungement should be granted or denied. The judge shall 
3.27    consider the victim's statement when making a decision.
3.28        Subd. 5. Maintenance of records.  If the court issues an expungement order it may 
3.29    require that the criminal record be sealed and the record not be opened except as provided 
3.30    under subdivision 8. An expungement order or a record of the existence of an expunged 
3.31    record must not be disclosed, except as provided under subdivision 8. Records must not 
3.32    be destroyed or returned to the subject of the record.
3.33        Subd. 6. Order concerning crimes of violence. An order expunging the record of 
3.34    a conviction for a crime of violence as defined in section  624.712, subdivision 5, must 
3.35    provide that the person is not entitled to ship, transport, possess, or receive a firearm 
3.36    for the remainder of the person's lifetime. Any person whose record of conviction is 
4.1     expunged under this section and who thereafter receives a relief of disability under United 
4.2     States Code, title 18, section 925, or whose ability to possess firearms has been restored 
4.3     under section  609.165, subdivision 1d, is not subject to the restriction in this subdivision. 
4.4         Subd. 7. Effect of order. If the court orders an expungement under this section, 
4.5     the effect of the order shall be to restore the person, in the contemplation of the law, 
4.6     to the status the person occupied before the arrest, citation, indictment or information, 
4.7     complaint, trial, guilty plea, or verdict. The person shall not be held guilty of perjury or 
4.8     otherwise of giving a false statement if the person fails to acknowledge any of these 
4.9     events in response to any inquiry made for any purpose. 
4.10        Subd. 8. Limitations of order. (a) Upon issuance of an expungement order related 
4.11    to a charge supported by probable cause, the DNA samples and DNA records held by 
4.12    the Bureau of Criminal Apprehension and collected under authority other than section 
4.13    299C.105, shall not be sealed, returned to the subject of the record, or destroyed.
4.14    (b) Notwithstanding the issuance of an expungement order:
4.15    (1) an expunged record may be opened for purposes of a criminal investigation, 
4.16    prosecution, or sentencing, upon an ex parte court order;
4.17    (2) the fact that an expunged record exists may be made available to law enforcement 
4.18    authorities acting within the scope of official duties; 
4.19    (3) an expunged record of a conviction may be opened for purposes of evaluating a 
4.20    prospective employee in a criminal justice agency without a court order; and
4.21    (4) an expunged record of a conviction may be opened for purposes of a statutorily 
4.22    required background study without a court order if the subject of the record has been given 
4.23    notice before the study that expunged records may be opened. 
4.24    Upon request by law enforcement, prosecution, or corrections authorities, an agency 
4.25    or jurisdiction subject to an expungement order shall inform the requester of the existence 
4.26    of an expunged record and of the right to obtain access to it as provided by this paragraph. 
4.27    For purposes of this section, a "criminal justice agency" means courts or a government 
4.28    agency that performs the administration of criminal justice under statutory authority.
4.29        Subd. 9. Distribution of expungement orders. The court administrator shall 
4.30    send a copy of an expungement order to each agency and jurisdiction whose records are 
4.31    affected by the terms of the order.
4.32        Subd. 10. Stay of order; appeal. An expungement order shall be stayed 
4.33    automatically for 60 days after the order is filed and, if the order is appealed, during the 
4.34    appeal period. A person or an agency or jurisdiction whose records would be affected by 
4.35    the order may appeal the order within 60 days of service of notice of filing of the order. An 
5.1     agency or jurisdiction or its officials or employees need not file a cost bond or supersedeas 
5.2     bond in order to further stay the proceedings or file an appeal.
5.3         Subd. 11. Factors to be considered; extent of order.  (a) When deciding whether to 
5.4     issue an expungement order under this section, the court shall consider: 
5.5     (1) the nature and severity of the underlying crime whose record is the subject of 
5.6     the expungement petition; 
5.7     (2) the danger, if any, the petitioner poses to any individuals or society; 
5.8     (3) the length of time since the crime occurred; 
5.9     (4) the steps taken by the petitioner towards rehabilitation following the crime; 
5.10    (5) extenuating or mitigating factors relating to the underlying crime, including, but 
5.11    not limited to, the petitioner's level of participation, claims of innocence, and irregularities 
5.12    in the trial; 
5.13    (6) the reasons for the expungement, including, but not limited to, the petitioner's 
5.14    attempts to obtain employment, housing, or other necessities; 
5.15    (7) the petitioner's criminal record; 
5.16    (8) the petitioner's record of employment and community involvement; 
5.17    (9) the recommendations of interested law enforcement, prosecutorial, and 
5.18    corrections officials; 
5.19    (10) the recommendations of any victims of the underlying crime; and 
5.20    (11) any other factor deemed relevant by the court. 
5.21    (b) A court's decision on whether to issue an expungement order is completely 
5.22    discretionary. If the court grants the expungement petition, it shall specify what records 
5.23    are to be affected by the order. The order may affect judicial branch records, executive 
5.24    branch records, and any other government records deemed appropriate by the court. 
5.25    EFFECTIVE DATE.This section is effective August 1, 2006, and applies to 
5.26    expungement petitions filed on or after that date.

5.27        Sec. 4. [609B.04] BUSINESS SCREENING SERVICES; REMOVAL OF DATA 
5.28    ON EXPUNGED RECORDS; CORRECTIONS.
5.29        Subdivision 1. Definition. For purposes of this section, "business screening service" 
5.30    means a person engaged in the business of gathering, storing, or disseminating background 
5.31    information on individuals that includes records of arrests, citations, criminal proceedings, 
5.32    or convictions involving the individual. Business screening service does not include a 
5.33    residential screening service under sections 504B.235 to 504B.245.
5.34        Subd. 2. Deletion of expunged records. If a business screening service knows that 
5.35    records of an arrest, citation, criminal proceeding, or conviction involving an individual 
6.1     have been expunged under this chapter or other law, the screening service shall delete any 
6.2     reference to those records in information maintained or disseminated by the screening 
6.3     service.
6.4         Subd. 3. Corrections. If the completeness or accuracy of a record involving an 
6.5     arrest, citation, criminal proceeding, or conviction maintained by a business screening 
6.6     service is disputed by the individual who is the subject of the record, the screening 
6.7     service must reinvestigate and document the current status of the record. If the record is 
6.8     found to be inaccurate or can no longer be verified, the screening service must correct 
6.9     the inaccuracy or delete any reference to that record in information maintained or 
6.10    disseminated by the screening service. At the request of the individual, the screening 
6.11    service must give notification of the correction or deletion to persons who have received 
6.12    the record within the past six months.
6.13        Subd. 4. Remedy. A business screening service that violates this section is liable 
6.14    to the individual who is the subject of the record for a penalty of $10,000 or actual 
6.15    damages caused by the violation, whichever is greater, plus costs and disbursements and 
6.16    reasonable attorney fees.
6.17    EFFECTIVE DATE.This section is effective August 1, 2006. 

6.18        Sec. 5. [609B.05] NO DUTY TO DISCOVER EXPUNGED RECORDS.
6.19    An employer or prospective employer does not have a duty to discover or use a 
6.20    record that has been expunged under this chapter or other law for purposes of making 
6.21    an employment decision.
6.22    EFFECTIVE DATE.This section is effective August 1, 2006. 

6.23        Sec. 6. REVISOR'S INSTRUCTION.
6.24    The revisor of statutes shall replace all statutory references to Minnesota Statutes, 
6.25    sections 609A.01 to 609A.03, with references to the appropriate successor sections in 
6.26    chapter 609B. 
6.27    EFFECTIVE DATE.This section is effective the day following final enactment.

6.28        Sec. 7.  REPEALER.
6.29    (a) Minnesota Statutes 2004, sections 609A.01; 609A.02, subdivisions 1, 2, and 4; 
6.30    and 609A.03, subdivisions 1, 2, 3, 4, 5, 5a, 6, 8, and 9, are repealed.
6.31    (b) Minnesota Statutes 2005 Supplement, sections 609A.02, subdivision 3; and 
6.32    609A.03, subdivision 7, are repealed.
7.1     EFFECTIVE DATE.This section is effective August 1, 2006, and applies to 
7.2     expungement petitions filed on or after that date.