HF 3859

as introduced - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

A bill for an act
relating to crime; modifying law on expungement of criminal records; amending
Minnesota Statutes 2006, sections 609A.01; 609A.02, subdivision 3; 609A.03,
subdivisions 2, 5, 6, 7, 8; proposing coding for new law in Minnesota Statutes,
chapter 609A; repealing Minnesota Statutes 2006, section 609A.02.

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

Section 1.

Minnesota Statutes 2006, section 609A.01, is amended to read:

609A.01 CRIMINAL RECORDS EXPUNGEMENT.

Subdivision 1.

Scope.

This chapter provides the grounds and procedures for
expungement of criminal records under section 13.82; 152.18, subdivision 1; 299C.11,;
609A.021; where a petition is authorized under section 609A.02, subdivision 3 609A.022;
or other applicable law. The remedy available is limited to a court order sealing the public
records and prohibiting the disclosure of their existence or their opening except under
court order or statutory authority. Nothing in this chapter authorizes the destruction of
records or their return to the subject of the records.

Subd. 2.

Definitions.

(a) For the purposes of this chapter, the terms in this
subdivision have the meanings given them.

(b) "Crime of violence" means convictions of any of the following offenses:

(1) section 169.09, subdivision 14, paragraph (a), clause (1) (hit and run resulting
in death);

(2) section 169.09, subdivision 14, paragraph (a), clause (2) (hit and run with great
bodily harm);

(3) section 299F.79 (intent to manufacture explosives);

(4) section 299F.83 (negligent discharge of explosive);

(5) section 346.155 (failure to control a regulated animal resulting in death or great
bodily harm);

(6) section 518E.01, subdivision 14 (any level of violation of an order for protection);

(7) section 518B.01, subdivision 22 (any violation of a domestic abuse no contact
order);

(8) section 609.165, subdivision 1a (certain convicted felons ineligible to possess
firearms);

(9) section 609.185 (murder in the first degree);

(10) section 609.19 (murder in the second degree);

(11) section 609.195 (murder in the third degree);

(12) section 609.20 (manslaughter in the first degree);

(13) section 609.205 (manslaughter in the second degree);

(14) section 609.21, subdivisions 1 and 3 (criminal vehicular homicide);

(15) section 609.21, subdivisions 1 and 1a, paragraphs (a) to (c) (criminal vehicular
homicide and operation involving death, great bodily harm, and substantial bodily harm);

(16) section 609.215 (aiding suicide and aiding attempted suicide);

(17) section 609.221 (assault in the first degree);

(18) section 609.222 (assault in the second degree);

(19) section 609.223 (assault in the third degree);

(20) section 609.2231 (assault in the fourth degree);

(21) section 609.224 (assault in the fifth degree);

(22) section 609.2241 (knowing transfer of communicable disease);

(23) section 609.2242 (fifth degree domestic assault);

(24) section 609.2245 (female genital mutilation);

(25) section 609.2247 (domestic assault by strangulation);

(26) section 609.228 (great bodily harm by distribution of drugs);

(27) section 609.229 (crimes committed for the benefit of a gang);

(28) section 609.2325 (criminal abuse of vulnerable adult resulting in death, bodily
harm, and substantial bodily harm);

(29) section 609.235 (use of drugs to injure or facilitate crime);

(30) section 609.24 (simple robbery);

(31) section 609.245 (aggravated robbery);

(32) section 609.25 (kidnapping);

(33) section 609.255 (false imprisonment);

(34) section 609.26 (depriving another of custodial or parental rights);

(35) section 609.2661 (murder of an unborn child in the first degree);

(36) section 609.2662 (murder of an unborn child in the second degree);

(37) section 609.2663 (murder of an unborn child in the third degree);

(38) section 609.2664 (manslaughter of an unborn child in the first degree);

(39) section 609.2665 (manslaughter of an unborn child in the second degree);

(40) section 609.267 (assault of an unborn child in the first degree);

(41) section 609.2671 (assault of an unborn child in the second degree);

(42) section 609.2672 (assault of an unborn child in the third degree);

(43) section 609.268 (death or injury to an unborn child in the commission of
a crime);

(44) section 609.27, subdivision 1, clause (1) (coercion with threat of bodily harm);

(45) section 609.282 (labor trafficking);

(46) section 609.324, subdivision 1 (engaging or hiring a minor to engage in
prostitution);

(47) section 609.342 (criminal sexual conduct in the first degree);

(48) section 609.343 (criminal sexual conduct in the second degree);

(49) section 609.344 (criminal sexual conduct in the third degree);

(50) section 609.345 (criminal sexual conduct in the fourth degree);

(51) section 609.3451 (criminal sexual conduct in the fifth degree);

(52) section 609.3453 (criminal sexual predatory conduct);

(53) section 609.3455 (dangerous sex offenders-life sentence);

(54) section 609.352 (solicitation of children to engage in sexual conduct);

(55) section 609.365 (incest);

(56) section 609.377 (malicious punishment of a child);

(57) section 609.378 (neglect or endangerment of a child);

(58) section 609.485, subdivision 4, paragraph (b) (escape with violence);

(59) section 609.487, subdivision 4 (fleeing a peace officer resulting in death, great
bodily harm, or substantial bodily harm);

(60) section 609.493 (solicitation of mentally impaired persons);

(61) section 609.494 (solicitation of juveniles);

(62) section 609.498, subdivision 1 (tampering with a witness);

(63) section 609.50, subdivision 2 (obstructing legal process with foreseeable risk of
bodily harm);

(64) section 609.561 (arson in the first degree);

(65) section 609.562 (arson in the second degree);

(66) section 609.582, subdivision 1, 2, or 3 (burglary in the first through third
degrees);

(67) section 609.595, subdivision 1, clause (1) (damage to property with risk of
bodily harm);

(68) section 609.66, subdivision 1a (discharge of a firearm involving intentional or
reckless endangerment of others);

(69) section 609.66, subdivision 1e (drive-by shooting);

(70) section 609.662 (duty to render aid, death or great or substantial bodily harm);

(71) section 609.668 (explosive or incendiary devices);

(72) section 609.67 (unlawfully owning, possessing, or operating a machine gun or
short-barreled shotgun);

(73) section 609.687 (adulteration);

(74) section 609.71 (riot);

(75) section 609.712 (real and simulated weapons of mass destruction);

(76) section 609.713 (terroristic threats);

(77) section 609.714 (crimes committed in furtherance of terrorism);

(78) section 609.748 (violation of harassment or restraining order);

(79) section 609.749 (harassment and stalking);

(80) section 609.855, subdivision 5 (shooting at a public transit vehicle or facility);

(81) section 617.23 (indecent exposure);

(82) section 617.246 (use of minors in sexual performance);

(83) section 624.713, subdivision 1, paragraph (b) (possession of a pistol by a person
convicted of a crime of violence);

(84) section 624.7181 (assault weapon in public);

(85) section 624.732 (intentional release of harmful substance);

(86) section 641.165 (bringing dangerous weapons into county jail); and

(87) an attempt or conspiracy to commit any of clauses (1) to (86).

(c) "Supported by probable cause" means that a court has reviewed and signed
a criminal complaint or, if no complaint exists, there has been no hearing challenging
probable cause or a hearing has been held and a court has determined that the charge
is supported by probable cause.

(d) "All pending actions and proceedings resolved in favor of the petitioner" means
a voluntary dismissal by the state, a verdict or finding of not guilty, or a judgment of
acquittal. It does not include any case in which a defendant pleaded guilty or tendered a
guilty plea, or a verdict of not guilty by reason of mental illness.

Sec. 2.

Minnesota Statutes 2006, section 609A.02, subdivision 3, is amended to read:

Subd. 3.

Certain criminal proceedings not resulting in a conviction.

An
automatic expungement may be granted under section 609A.021 or a petition may be filed
under section 609A.03 to seal all records relating to an arrest, indictment or information,
trial, or verdict if the records are not subject to section 299C.11, subdivision 1, paragraph
(b), and if all pending actions or proceedings were resolved in favor of the petitioner.
For purposes of this chapter, a verdict of not guilty by reason of mental illness is not a
resolution in favor of the petitioner.

Sec. 3.

[609A.021] AUTOMATIC EXPUNGEMENT.

Subdivision 1.

Nonviolent crimes; arrests and dismissed charges.

A law
enforcement agency must expunge the record of a person arrested for a crime that is
not a crime of violence:

(1) that does not result in charges on or before one year of the date of the arrest; or

(2) when charges are dismissed, on or after one year of the date of the dismissal of
charges.

The arresting law enforcement agency must notify the person, criminal justice
agencies referred to under section 13.02, subdivision 3a, and other state and local agencies
to which it has transmitted the record of the arrest or arrest and charges that the public
record has been expunged. The agency receiving notification must expunge the public
record of the arrest or arrest and charges as provided in this chapter. If the person is
charged after the arrest record is expunged, the arrest record must be reopened.

Subd. 2.

Continuances for dismissal; stays of adjudication.

(a) A court must
expunge the public record of a person when the prosecutor has agreed to a continuance
for dismissal or a stay of adjudication and the person has met all the conditions of the
continuance or stay including, at a minimum, restitution, completion of the period of the
stay or continuance for dismissal, and the person has obtained a dismissal from the court.
The court must notify the person, criminal justice agencies referred to under section 13.02,
subdivision 3a, and other state and local agencies to which it has transmitted the record
of the continuance or stay that the public record has been expunged as provided in this
chapter. Where there is a conflict with the provisions of section 152.18, the provisions of
this subdivision prevail.

(b) Notwithstanding other law to the contrary, an expunged disposition under section
152.18 is a predicate for the definition of a "subsequent controlled substance conviction"
under section 152.01, subdivision 16a, for the purposes of the mandatory minimum
sentences in subdivision 3, paragraph (b), of sections 152.021 to 152.025.

Subd. 3.

Diversion.

A court must expunge the public record of a person when the
prosecutor has agreed to a diversion and the person has met all of the conditions of the
diversion including, at a minimum, restitution, completion of the period of diversion,
and the person has obtained a dismissal from the court or a charge declination from the
prosecutor. The court must notify the person, criminal justice agencies referred to under
section 13.02, subdivision 3a, and other state and local agencies to which it has transmitted
the record that the public record has been expunged. This subdivision does not apply to
arrests or charges for crimes requiring registration as a predatory offender under section
243.166, crimes related to weapons under sections 624.712 to 624.719, or to crimes of
violence.

Sec. 4.

[609A.022] ELIGIBILITY TO PETITION FOR EXPUNGEMENT.

(a) A person may petition for expungement of the person's criminal record except
for a record of conviction of a crime of violence under section 609A.01, subdivision 2,
paragraph (a). A person is first eligible to petition after the date of successful completion
of the person's sentence as measured by the discharge from probation, supervised release,
or conditional release according to the following schedule:

(1) for a felony, 15 years from the date of discharge from probation, supervised
release, or conditional release; and

(2) for a gross misdemeanor or misdemeanor, ten years from the date of conviction.

(b) When there is a conviction for a felony, gross misdemeanor, or targeted
misdemeanor subsequent to the person's criminal record petitioned for expungement, the
first date of eligibility to petition for expungement of the earlier conviction record is reset
to the date of successful completion of the terms of sentencing for the later conviction.

(c) This section does not apply to crimes requiring registration as a predatory
offender under section 243.166; traffic offenses under chapters 169 and 169A; or one of
two or more charge counts that arise from the same set of facts, but the person pleads to
the lower level offense or any crime for which the court imposed a sentence which was an
aggravated departure from the guidelines or a statutorily enhanced or increased sentence.

(d) An expunged conviction record is still a conviction for purposes of:

(1) registration as a predatory offender under section 243.166;

(2) crimes related to weapons under sections 609.165 and 624.712 to 624.719;

(3) any statute for which the charge or penalty is enhanced based on the prior record
or previous conduct of the person or any crime which has a mandatory minimum sentence
upon a second or subsequent conviction;

(4) expungement proceedings under this chapter;

(5) sentencing, including sentencing under the Minnesota Sentencing Guidelines;

(6) subsequent prosecution;

(7) other crime evidence;

(8) impeachment;

(9) probation; and

(10) background checks by federal, state, and local government agencies.

Records of arrests, dispositions, and convictions shall continue to be maintained by
the Bureau of Criminal Apprehension database and related databases as currently recorded
or upgraded even after expungement, but may be disclosed only to courts, prosecuting
agencies, and law enforcement and criminal justice agencies described in section 13.02,
subdivision 3a, without a court order.

Sec. 5.

[609A.023] ELIGIBILITY; PROBATION AND JUVENILES.

Subdivision 1.

Probation.

A person on probation is eligible for expungement
of the public record after the person has successfully completed all the conditions of
probation including, at a minimum, restitution, payment of fines, completion of treatment,
completion of the period of probation, and has been discharged by the court.

Subd. 2.

Juveniles.

A person who was a juvenile of 16 or 17 years at the time of a
felony offense is eligible for expungement of public records of juvenile delinquency or
extended jurisdiction as provided in this chapter.

Sec. 6.

Minnesota Statutes 2006, 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, 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.

(c) The petitioner shall attach a copy of the complaint or, if none, a copy of the
police reports of the offense to the petition.

Sec. 7.

Minnesota Statutes 2006, section 609A.03, subdivision 5, is amended to read:

Subd. 5.

Nature of remedy; standard; firearms restriction.

(a) Except as
otherwise provided by paragraph (b), expungement of a criminal 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 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) If the court issues an expungement order it may require that the criminal 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 under court order or statutory authority.

Sec. 8.

Minnesota Statutes 2006, section 609A.03, subdivision 6, is amended to read:

Subd. 6.

Order concerning controlled substance offenses; order for
expungement.

If the court orders the sealing of the record of proceedings under section
152.18 or issues an order for expungement under this chapter, the effect of the order shall
be to restore the person, in the contemplation of the law, to the status the person occupied
before the arrest, indictment, or information, or conviction, except as otherwise provided
by law. The person shall not be held guilty of perjury or otherwise of giving a false
statement if the person fails to acknowledge the arrest, indictment, information, or trial in
response to any inquiry made for any purpose.

Sec. 9.

Minnesota Statutes 2006, 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 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 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.

Sec. 10.

Minnesota Statutes 2006, section 609A.03, subdivision 8, is amended to read:

Subd. 8.

Distribution of expungement orders.

The court administrator shall
send a copy of an expungement order to each agency and jurisdiction whose records are
affected by the terms of the order criminal justice agencies referred to under section 13.02,
subdivision 3a, and other state and local agencies to which it has transmitted the criminal
record. The agency receiving the copy of the order must expunge its record.

Sec. 11.

[609A.04] APPLICATION, DISSEMINATION, AND RETENTION
OF EXPUNGED RECORDS.

(a) An expungement under this chapter applies to records on a person held by the
court, criminal justice agencies referred to under section 13.02, subdivision 3a, and any
state or local agency.

(b) A person's expunged record may be transmitted between and among criminal
justice agencies, referred to under section 13.02, subdivision 3a, and the courts without
a court order.

(c) The existence of an expunged criminal record shall not be revealed unless
allowed under this chapter or for a state or local agency to conduct a background check if
the agency provides a review process including, at a minimum, the right of the subject
of the expunged record to an administrative or judicial review to correct a possible error
in the expunged record.

(d) An expunged record must not be destroyed or returned to the subject of the
record.

Sec. 12.

[609A.05] DISTRICT COURT AUTHORITY.

A district court shall not order the expungement of state agency records relating to
criminal activity, except as provided under this chapter.

Sec. 13.

[609A.06] LIABILITY LIMITATION.

A government entity or individuals employed by a government entity shall not have
civil or criminal liability for the unintentional, inadvertent, or mistaken disclosure of an
expunged criminal conviction or for the unintentional, inadvertent, or mistaken failure to
expunge any aspect of a criminal conviction for which expungement is required under this
chapter or a court order.

Sec. 14. REPEALER.

Minnesota Statutes 2006, section 609A.02, is repealed.