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 the sealing of certain criminal 1.4 records; modifying grounds for sealing records in 1.5 certain cases; authorizing peace officers to issue 1.6 citations for truancy; requiring that certain 1.7 juveniles taken into secure custody be formally booked 1.8 and fingerprinted; requiring that any known street 1.9 names or aliases of certain juvenile offenders be 1.10 included in the statewide juvenile information system; 1.11 amending Minnesota Statutes 1994, sections 168.36, by 1.12 adding a subdivision; 242.31, subdivision 2; 260.161, 1.13 subdivision 1a; and 299C.13; Minnesota Statutes 1995 1.14 Supplement, sections 152.18, subdivision 1; 242.31, 1.15 subdivision 1; 260.132, subdivision 1; 299C.10, 1.16 subdivision 1; and 299C.11; proposing coding for new 1.17 law as Minnesota Statutes, chapter 609A; repealing 1.18 Minnesota Statutes 1994, sections 152.18, subdivision 1.19 2; 242.31, subdivision 3; 609.166; 609.167; and 1.20 609.168. 1.21 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.22 Section 1. Minnesota Statutes 1995 Supplement, section 1.23 152.18, subdivision 1, is amended to read: 1.24 Subdivision 1. If any person who has not previously 1.25 participated in or completed a diversion program authorized 1.26 under section 401.065 or who has not previously been placed on 1.27 probation without a judgment of guilty and thereafter been 1.28 discharged from probation under this section is found guilty of 1.29 a violation of section 152.024, subdivision 2, 152.025, 1.30 subdivision 2, or 152.027, subdivision 2, 3, or 4, for 1.31 possession of a controlled substance, after trial or upon a plea 1.32 of guilty, and the court determines that the violation does not 1.33 qualify as a subsequent controlled substance conviction under 2.1 section 152.01, subdivision 16a, the court may, without entering 2.2 a judgment of guilty and with the consent of the person, defer 2.3 further proceedings and place the person on probation upon such 2.4 reasonable conditions as it may require and for a period, not to 2.5 exceed the maximum sentence provided for the violation. The 2.6 court may give the person the opportunity to attend and 2.7 participate in an appropriate program of education regarding the 2.8 nature and effects of alcohol and drug abuse as a stipulation of 2.9 probation. Upon violation of a condition of the probation, the 2.10 court may enter an adjudication of guilt and proceed as 2.11 otherwise provided. The court may, in its discretion, dismiss 2.12 the proceedings against the person and discharge the person from 2.13 probation before the expiration of the maximum period prescribed 2.14 for the person's probation. If during the period of probation 2.15 the person does not violate any of the conditions of the 2.16 probation, then upon expiration of the period the court shall 2.17 discharge the person and dismiss the proceedings against that 2.18 person. Discharge and dismissal under this subdivision shall be 2.19 without court adjudication of guilt, but a not public record of 2.20 it shall be retained by the
department of public safetybureau 2.21 of criminal apprehension for the purpose of use by the courts in 2.22 determining the merits of subsequent proceedings against the 2.23 person. The not public record may also be opened only upon 2.24 court order for purposes of a criminal investigation, 2.25 prosecution, or sentencing. Upon request by law enforcement, 2.26 prosecution, or corrections authorities, the departmentbureau 2.27 shall notify the requesting party of the existence of the not 2.28 public record and the right to seek a court order to open it 2.29 pursuant to this section. The court shall forward a record of 2.30 any discharge and dismissal under this subdivision to 2.31 the department of public safety whobureau which shall make and 2.32 maintain the not public record of it as provided under this 2.33 subdivision. The discharge or dismissal shall not be deemed a 2.34 conviction for purposes of disqualifications or disabilities 2.35 imposed by law upon conviction of a crime or for any other 2.36 purpose. 3.1 For purposes of this subdivision, "not public" has the 3.2 meaning given in section 13.02, subdivision 8a. 3.3 Sec. 2. Minnesota Statutes 1994, section 168.36, is 3.4 amended by adding a subdivision to read: 3.5 Subd. 4. [OFFICER MAY SEIZE REGISTRATION PLATES.] If a 3.6 peace officer stops a motor vehicle and determines, through a 3.7 check of the motor vehicle registration record system, that the 3.8 vehicle is being operated without valid registration in 3.9 violation of this section and it has been more than 30 days 3.10 since the registration has expired, the officer may immediately 3.11 seize the vehicle's registration plates and destroy the plates 3.12 or return them to the commissioner of public safety. 3.13 Sec. 3. Minnesota Statutes 1995 Supplement, section 3.14 242.31, subdivision 1, is amended to read: 3.15 Subdivision 1. Whenever a person who has been committed to 3.16 the custody of the commissioner of corrections upon conviction 3.17 of a crime following certification under the provisions of 3.18 section 260.125 is finally discharged by order of the 3.19 commissioner, that discharge shall restore the person to all 3.20 civil rights and, if so ordered by the commissioner of3.21 corrections, also shall have the effect of setting aside the3.22 conviction, nullifying it and purging the person of it. The 3.23 commissioner shall file a copy of the order with the district 3.24 court of the county in which the conviction occurred ; upon3.25 receipt, the court shall order the conviction set aside. An3.26 order setting aside a conviction for a crime of violence as3.27 defined in section 624.712, subdivision 5, must provide that the3.28 person is not entitled to ship, transport, possess, or receive a3.29 firearm until ten years have elapsed since the order was entered3.30 and during that time the person was not convicted of any other3.31 crime of violence. A person whose conviction was set aside3.32 under this section and who thereafter has received a relief of3.33 disability under United States Code, title 18, section 925,3.34 shall not be subject to the restrictions of this subdivision. 3.35 Sec. 4. Minnesota Statutes 1994, section 242.31, 3.36 subdivision 2, is amended to read: 4.1 Subd. 2. Whenever a person described in subdivision 1 has 4.2 been placed on probation by the court pursuant to section 4.3 609.135 and, after satisfactory fulfillment of it, is discharged 4.4 from probation, the court shall issue an order of discharge 4.5 pursuant to subdivision 2a and section 609.165. On application4.6 of the defendant or on its own motion and after notice to the4.7 county attorney, the court in its discretion may also order that4.8 the defendant's conviction be set aside with the same effect as4.9 a court order under subdivision 1.4.10 These orders restoreThis order restores the defendant to 4.11 civil rights and purge and free the defendant from all penalties4.12 and disabilities arising from the defendant's conviction and the4.13 conviction shall not thereafter be used against the defendant,4.14 except in a criminal prosecution for a subsequent offense if4.15 otherwise admissible therein. In addition, the record of the4.16 defendant's conviction shall be sealed and may be opened only4.17 upon court order for purposes of a criminal investigation,4.18 prosecution, or sentencing. Upon request by law enforcement,4.19 prosecution, or corrections authorities, the court or the4.20 department of public safety shall notify the requesting party of4.21 the existence of the sealed record and the right to seek a court4.22 order to open it pursuant to this section. 4.23 Sec. 5. Minnesota Statutes 1995 Supplement, section 4.24 260.132, subdivision 1, is amended to read: 4.25 Subdivision 1. [NOTICE.] When a peace officer ,or 4.26 attendance officer in the case of a habitual truant,has 4.27 probable cause to believe that a child: 4.28 (1) is in need of protection or services under section 4.29 260.015, subdivision 2a, clause (11) or (12); 4.30 (2) is a juvenile petty offender; or 4.31 (3) has committed a delinquent act that would be a petty 4.32 misdemeanor or misdemeanor if committed by an adult; 4.33 the officer may issue a notice to the child to appear in 4.34 juvenile court in the county in which the child is found or in 4.35 the county of the child's residence or, in the case of a 4.36 juvenile petty offense, or a petty misdemeanor or misdemeanor 5.1 delinquent act, the county in which the offense was committed. 5.2 If there is a school attendance review board or county attorney 5.3 mediation program operating in the child's school district, a 5.4 notice to appear in juvenile court for a habitual truant may not 5.5 be issued until the applicable procedures under section 260A.06 5.6 or 260A.07 have been exhausted. The officer shall file a copy 5.7 of the notice to appear with the juvenile court of the 5.8 appropriate county. If a child fails to appear in response to 5.9 the notice, the court may issue a summons notifying the child of 5.10 the nature of the offense alleged and the time and place set for 5.11 the hearing. If the peace officer finds it necessary to take 5.12 the child into custody, sections 260.165 and 260.171 shall apply. 5.13 Sec. 6. Minnesota Statutes 1994, section 260.161, 5.14 subdivision 1a, is amended to read: 5.15 Subd. 1a. [RECORD OF ADJUDICATIONS; NOTICE TO BUREAU OF 5.16 CRIMINAL APPREHENSION.] (a) The juvenile court shall forward to 5.17 the Bureau of Criminal Apprehension the following data on 5.18 juveniles adjudicated delinquent for having committed 5.19 felony-level criminal sexual conduct: 5.20 (1) the name and birth date of the juvenile, including any 5.21 of the juvenile's known aliases or street names; 5.22 (2) the type of act for which the juvenile was adjudicated 5.23 delinquent and date of the offense; and 5.24 (3) the date and county of the adjudication. 5.25 (b) The bureau shall retain data on a juvenile until the 5.26 offender reaches the age of 28. If the offender commits another 5.27 violation of sections 609.342 to 609.345 as an adult, the bureau 5.28 shall retain the data for as long as the data would have been 5.29 retained if the offender had been an adult at the time of the 5.30 juvenile offense. 5.31 (c) The juvenile court shall forward to the bureau the 5.32 following data on individuals convicted as extended jurisdiction 5.33 juveniles: 5.34 (1) the name and birthdate of the offender, including any 5.35 of the juvenile's known aliases or street names; 5.36 (2) the crime committed by the offender and the date of the 6.1 crime; and 6.2 (3) the date and county of the conviction. 6.3 The court shall notify the bureau whenever it executes an 6.4 extended jurisdiction juvenile's adult sentence under section 6.5 260.126, subdivision 5. 6.6 (d) The bureau shall retain the extended jurisdiction 6.7 juvenile data for as long as the data would have been retained 6.8 if the offender had been an adult at the time of the offense. 6.9 Data retained on individuals under this subdivision are private 6.10 data under section 13.02, except that extended jurisdiction 6.11 juvenile data becomes public data under section 13.87, 6.12 subdivision 2, when the juvenile court notifies the bureau that 6.13 the individual's adult sentence has been executed under section 6.14 260.126, subdivision 5. 6.15 Sec. 7. Minnesota Statutes 1995 Supplement, section 6.16 299C.10, subdivision 1, is amended to read: 6.17 Subdivision 1. [LAW ENFORCEMENT DUTY.] (a) It is hereby 6.18 made the duty of the sheriffs of the respective counties and, of 6.19 the police officers in cities of the first, second, and third 6.20 classes, under the direction of the chiefs of police in such 6.21 cities, and of community corrections agencies operating secure 6.22 juvenile detention facilities to take or cause to be taken 6.23 immediately finger and thumb prints, photographs, distinctive 6.24 physical mark identification data, and such other identification 6.25 data as may be requested or required by the superintendent of 6.26 the bureau; of all persons arrested for a felony, gross 6.27 misdemeanor, of all juveniles committing felonies as 6.28 distinguished from those committed by adult offenders, of all 6.29 persons reasonably believed by the arresting officer to be 6.30 fugitives from justice, of all persons in whose possession, when 6.31 arrested, are found concealed firearms or other dangerous 6.32 weapons, burglar tools or outfits, high-power explosives, or 6.33 articles, machines, or appliances usable for an unlawful purpose 6.34 and reasonably believed by the arresting officer to be intended 6.35 for such purposes, and within 24 hours thereafter to forward 6.36 such fingerprint records and other identification data on such 7.1 forms and in such manner as may be prescribed by the 7.2 superintendent of the bureau of criminal apprehension. 7.3 (b) Effective August 1, 1997, the identification reporting 7.4 requirements shall also apply to persons committing misdemeanor 7.5 offenses, including violent and enhanceable crimes, and 7.6 juveniles committing gross misdemeanors. In addition, the 7.7 reporting requirements shall include any known aliases or street 7.8 names of the offenders. 7.9 Sec. 8. Minnesota Statutes 1995 Supplement, section 7.10 299C.11, is amended to read: 7.11 299C.11 [IDENTIFICATION DATA FURNISHED TO BUREAU.] 7.12 The sheriff of each county and the chief of police of each 7.13 city of the first, second, and third classes shall furnish the 7.14 bureau, upon such form as the superintendent shall prescribe, 7.15 with such finger and thumb prints, photographs, distinctive 7.16 physical mark identification data, and other identification data 7.17 as may be requested or required by the superintendent of the 7.18 bureau, which may be taken under the provisions of section 7.19 299C.10, of persons who shall be convicted of a felony, gross 7.20 misdemeanor, or who shall be found to have been convicted of a 7.21 felony or gross misdemeanor, within ten years next preceding 7.22 their arrest. Upon the determination of all pending criminal 7.23 actions or proceedings in favor of the arrested person, the 7.24 arrested person shall, upon demand, have all such finger and 7.25 thumb prints, photographs, distinctive physical mark 7.26 identification data, and other identification data, and all 7.27 copies and duplicates thereof, returned, provided it is not 7.28 established that the arrested person has been convicted of any 7.29 felony, either within or without the state, within the period of 7.30 ten years immediately preceding such determination. 7.31 For purposes of this section, "determination of all pending 7.32 criminal actions or proceedings in favor of the arrested person" 7.33 does not include: 7.34 (1) the sealing of a criminal record pursuant to section 7.35 152.18, subdivision 1, 242.31, or 609.168chapter 609A; or7.36 (2) the arrested person's successful completion of a 8.1 diversion program; 8.2 (3) an order of discharge under section 609.165; or 8.3 (4) a pardon granted under section 638.02. 8.4 Sec. 9. Minnesota Statutes 1994, section 299C.13, is 8.5 amended to read: 8.6 299C.13 [INFORMATION FURNISHED TO PEACE OFFICERS.] 8.7 Upon receipt of information data as to any arrested person, 8.8 the bureau shall immediately ascertain whether the person 8.9 arrested has a criminal record or is a fugitive from justice, 8.10 and shall at once inform the arresting officer of the facts 8.11 ascertained. Upon application by any sheriff, chief of police, 8.12 or other peace officer in the state, or by an officer of the 8.13 United States or by an officer of another state, territory, or 8.14 government duly authorized to receive the same and effecting 8.15 reciprocal interchange of similar information with the division, 8.16 it shall be the duty of the bureau to furnish all information in 8.17 its possession pertaining to the identification of any person. 8.18 If the bureau has a sealed record on the arrested person, it 8.19 shall notify the requesting peace officer of that fact and of 8.20 the right to seek a court order to open the record for purposes 8.21 of law enforcement. A criminal justice agency shall be 8.22 notified, upon request, of the existence and contents of a 8.23 sealed record containing conviction information about an 8.24 applicant for employment. For purposes of this section a 8.25 "criminal justice agency" means courts or a government agency 8.26 that performs the administration of criminal justice under 8.27 statutory authority. 8.28 Sec. 10. [609A.01] [SEALING OF CRIMINAL RECORDS.] 8.29 Subdivision 1. [DEFINITION.] "Sealing of records" means 8.30 that only under court order or statutory authority may the 8.31 record's existence be disclosed or may the record be opened. 8.32 "Sealing of records" does not include the destruction of records 8.33 or their return to the subject of the records. 8.34 Subd. 2. [SCOPE OF CHAPTER.] This chapter provides the 8.35 grounds and procedure for the sealing of records under sections 8.36 13.82 and 152.18, subdivision 1. 9.1 Sec. 11. [609A.02] [GROUNDS FOR ORDER SEALING RECORDS.] 9.2 Subdivision 1. [CERTAIN CONTROLLED SUBSTANCE 9.3 OFFENSES.] Upon the dismissal and discharge of proceedings 9.4 against a person under section 152.18, subdivision 1, for 9.5 violation of section 152.024, 152.025, or 152.027 for possession 9.6 of a controlled substance, or on other grounds permitted by law, 9.7 the person may petition under section 609A.03 for the sealing of 9.8 all records relating to the arrest, indictment or information, 9.9 trial and dismissal and discharge. 9.10 Subd. 2. [JUVENILES PROSECUTED AS ADULTS.] A petition for 9.11 the sealing of a conviction record may be filed under section 9.12 609A.03 by a person who has been committed to the custody of the 9.13 commissioner of corrections upon conviction of a crime following 9.14 certification to district court under section 260.125, if the 9.15 person: 9.16 (1) is finally discharged by the commissioner; or 9.17 (2) has been placed on probation by the court under section 9.18 609.135 and has been discharged from probation after 9.19 satisfactory fulfillment of it. 9.20 Subd. 3. [SEALING PROHIBITED.] Records of a conviction of 9.21 an offense for which registration is required under section 9.22 243.166 may not be sealed. 9.23 Sec. 12. [609A.03] [PETITION TO SEAL CRIMINAL RECORDS.] 9.24 Subdivision 1. [PETITION; FILING FEE.] An individual who 9.25 is the subject of a criminal record who is seeking the sealing 9.26 of the record shall file a petition under this section and pay a 9.27 filing fee in the amount required under section 357.021, 9.28 subdivision 2, clause (1). If less than six months have elapsed 9.29 since completion of the criminal proceedings or discharge of a 9.30 sentence for which the sealing of records is sought, the 9.31 petition may be filed with the court that had jurisdiction over 9.32 the criminal proceedings and no filing fee is required. The 9.33 filing fee may be waived in cases of indigency. 9.34 Subd. 2. [CONTENTS OF PETITION.] A petition for sealing 9.35 records must be signed under oath by the petitioner and shall 9.36 state the following: 10.1 (1) the petitioner's full name and all other legal names or 10.2 aliases by which the petitioner has been known at any time; 10.3 (2) the petitioner's date of birth; 10.4 (3) all of the petitioner's addresses from the date of the 10.5 offense or alleged offense in connection with which the order 10.6 sealing the records is sought, to the date of the petition; 10.7 (4) why the order is sought, if it is for employment or 10.8 licensure purposes, the statutory or other legal authority under 10.9 which it is sought, and why it should be granted; 10.10 (5) the details of the offense for which the order is 10.11 sought, including date and jurisdiction of the occurrence, court 10.12 file number, and date of conviction or of dismissal; 10.13 (6) in the case of a conviction, what steps the petitioner 10.14 has taken since the time of the offense toward personal 10.15 rehabilitation, including treatment, work, or other personal 10.16 history that demonstrates rehabilitation; 10.17 (7) petitioner's criminal conviction record indicating all 10.18 convictions for misdemeanors, gross misdemeanors, or felonies in 10.19 this state, and for all comparable convictions in any other 10.20 state, federal court, or foreign country, whether the 10.21 convictions occurred before or after the offense for which the 10.22 order is sought; and 10.23 (8) all prior requests by the petitioner, whether for the 10.24 present offense or for any other offenses, in this state or any 10.25 other state or federal court, for pardon, expungement, or 10.26 sealing of a criminal record, whether granted or not, and all 10.27 stays of adjudication or imposition of sentence involving the 10.28 petitioner. 10.29 Subd. 3. [SERVICE OF PETITION.] The petition for sealing 10.30 records and a proposed order shall be served by mail on the 10.31 state and local government agencies and jurisdictions whose 10.32 records would be affected by the proposed order. Service shall 10.33 also be made by mail on the attorney for each agency and 10.34 jurisdiction. 10.35 Subd. 4. [HEARING.] A hearing on the petition shall be 10.36 held not sooner than 60 days after service of the petition. 11.1 Subd. 5. [NATURE OF REMEDY; STANDARD; FIREARMS 11.2 RESTRICTION.] (a) Except as provided in paragraph (b), the 11.3 sealing of a criminal record is an extraordinary remedy to be 11.4 granted only upon clear and convincing evidence that it would 11.5 yield a benefit to the petitioner commensurate with the 11.6 disadvantages to the public and public safety of: 11.7 (1) sealing the record; and 11.8 (2) burdening the court and public authorities to issue, 11.9 enforce, and monitor the order. 11.10 (b) If the petitioner is requesting the sealing of a 11.11 criminal record for which there was no conviction or finding by 11.12 a court of probable cause to believe the offense was committed, 11.13 the court shall grant the petition to seal the record unless the 11.14 agency or jurisdiction whose records would be affected 11.15 establishes by clear and convincing evidence that the interests 11.16 of the public and public safety outweigh the disadvantages to 11.17 the petitioner of not sealing the record. 11.18 (c) An order sealing the record of a conviction for a crime 11.19 of violence as defined in section 624.712, subdivision 5, must 11.20 provide that the person is not entitled to ship, transport, 11.21 possess, or receive a firearm until ten years have elapsed since 11.22 the order was entered and during that time the person was not 11.23 convicted of any other crime of violence. Any person whose 11.24 record of conviction is sealed under this section and who 11.25 thereafter receives a relief of disability under United States 11.26 Code, title 18, section 925, is not subject to the restriction 11.27 in this paragraph. 11.28 Subd. 6. [ORDER CONCERNING CONTROLLED SUBSTANCE OFFENSES.] 11.29 If the court orders the sealing of the record of proceedings 11.30 under section 152.18, the effect of the order shall be to 11.31 restore the person, in the contemplation of the law, to the 11.32 status the person occupied before the arrest, indictment, or 11.33 information. The person shall not be held guilty of perjury or 11.34 otherwise of giving a false statement if the person fails to 11.35 acknowledge the arrest, indictment, information, or trial in 11.36 response to any inquiry made for any purpose. 12.1 Subd. 7. [LIMITATIONS OF ORDER.] Notwithstanding the 12.2 issuance of an order sealing records under this chapter: 12.3 (1) a sealed record may be opened for purposes of a 12.4 criminal investigation, prosecution, or sentencing upon an ex 12.5 parte court order; and 12.6 (2) a sealed record of a conviction may be opened for 12.7 purposes of evaluating a prospective employee in a criminal 12.8 justice agency without a court order. 12.9 Upon request by a criminal justice agency, an agency or 12.10 jurisdiction subject to an order sealing a record shall inform 12.11 the requester of the existence of a sealed record and of the 12.12 right to obtain access to it as provided by this paragraph. For 12.13 purposes of this subdivision a "criminal justice agency" means 12.14 courts or a government agency that performs the administration 12.15 of criminal justice under statutory authority. 12.16 Subd. 8. [STAY OF ORDER; APPEAL.] An order sealing a 12.17 record shall be automatically stayed for 60 days after filing of 12.18 the order and, if the order is appealed, during the appeal 12.19 period. A person or an agency or jurisdiction whose records 12.20 would be affected by the order may appeal the order within 60 12.21 days of service of notice of filing of the order. An agency or 12.22 jurisdiction or officials or employees thereof need not file a 12.23 cost bond or supersedeas bond in order to further stay the 12.24 proceedings or file an appeal. 12.25 Subd. 9. [DISTRIBUTION OF ORDERS.] If an order sealing a 12.26 record is issued, the court administrator shall send a copy of 12.27 it to each agency and jurisdiction whose records are affected by 12.28 the terms of the order. 12.29 Sec. 13. [REPEALER.] 12.30 Minnesota Statutes 1994, sections 152.18, subdivision 2; 12.31 242.31, subdivision 3; 609.166; 609.167; and 609.168, are 12.32 repealed. 12.33 Sec. 14. [EFFECTIVE DATE; APPLICATION.] 12.34 Sections 1, 3, 4, and 8 to 13 are effective August 1, 1996, 12.35 and apply to requests for the sealing of criminal records 12.36 initiated on or after that date. Section 5 is effective the day 13.1 following final enactment. Sections 2, 6, and 7 are effective 13.2 August 1, 1996, and apply to acts occurring on or after that 13.3 date.