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SF 2790

4th Engrossment - 86th Legislature (2009 - 2010) Posted on 05/11/2010 07:56am

KEY: stricken = removed, old language.
underscored = added, new language.

Current Version - 4th Engrossment

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A bill for an act
relating to public safety; modifying provisions related to certain 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; requiring chemical use screen of juvenile offenders; requiring
the revisor of statutes to publish a table in Minnesota Statutes containing
cross-references to collateral sanctions imposed on juveniles as a result of an
adjudication of delinquency; amending Minnesota Statutes 2008, sections
260B.157, subdivision 1; 260B.176, subdivision 2; 609A.02, subdivisions 2, 3;
609A.03, subdivisions 1, 2, 4, 5, 5a, 7; Minnesota Statutes 2009 Supplement,
section 245C.24, subdivision 2; proposing coding for new law in Minnesota
Statutes, chapter 609A.

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 subdivisionnew 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.157, subdivision 1, is amended to read:


Subdivision 1.

Investigation.

Upon request of the court the local social services
agency or probation officer shall investigate the personal and family history and
environment of any minor coming within the jurisdiction of the court under section
260B.101 and shall report its findings to the court. The court may order any minor coming
within its jurisdiction to be examined by a duly qualified physician, psychiatrist, or
psychologist appointed by the court.

The court shall order a chemical use assessment conducted when a child is (1) found
to be delinquent for violating a provision of chapter 152, or for committing a felony-level
violation of a provision of chapter 609 if the probation officer determines that alcohol or
drug use was a contributing factor in the commission of the offense, or (2) alleged to be
delinquent for violating a provision of chapter 152, if the child is being held in custody
under a detention order. The assessor's qualifications and the assessment criteria shall
comply with Minnesota Rules, parts 9530.6600 to 9530.6655. If funds under chapter
254B are to be used to pay for the recommended treatment, the assessment and placement
must comply with all provisions of Minnesota Rules, parts 9530.6600 to 9530.6655 and
9530.7000 to 9530.7030. The commissioner of human services shall reimburse the court
for the cost of the chemical use assessment, up to a maximum of $100.

The court shall order a children's mental health screening new text begin and a chemical use
screening
new text end conducted when a child is found to be delinquent. The screening shall be
conducted with a screening instrument approved by the commissioner of human services
and shall be conducted by a mental health practitioner as defined in section 245.4871,
subdivision 26
, or a probation officer who is trained in the use of the screening instrument.
new text begin If the approved instrument includes screening for mental health and chemical use, a single
screening fulfills both requirements.
new text end If the screening indicates a need for new text begin a mental healthnew text end
assessment, the local social services agency, in consultation with the child's family, shall
have a diagnostic assessment conducted, including a functional assessment, as defined
in section 245.4871. new text begin If the screening indicates a need for a chemical use assessment,
a referral must be made, in consultation with the child's family, for a chemical use
assessment, as defined in section 254A.03, subdivision 3.
new text end

With the consent of the commissioner of corrections and agreement of the county to
pay the costs thereof, the court may, by order, place a minor coming within its jurisdiction
in an institution maintained by the commissioner for the detention, diagnosis, custody and
treatment of persons adjudicated to be delinquent, in order that the condition of the minor
be given due consideration in the disposition of the case. Any funds received under the
provisions of this subdivision shall not cancel until the end of the fiscal year immediately
following the fiscal year in which the funds were received. The funds are available for
use by the commissioner of corrections during that period and are hereby appropriated
annually to the commissioner of corrections as reimbursement of the costs of providing
these services to the juvenile courts.

Sec. 3.

Minnesota Statutes 2008, section 260B.176, subdivision 2, is amended to read:


Subd. 2.

Reasons for detention.

(a) If the child is not released as provided in
subdivision 1, the person taking the child into custody shall notify the court as soon as
possible of the detention of the child and the reasons for detention.

(b) No child may be detained in a juvenile secure detention facility or shelter care
facility longer than 36 hours, excluding Saturdays, Sundays, and holidays, after being
taken into custody for a delinquent act as defined in section 260B.007, subdivision 6,
unless a petition has been filed and the judge or referee determines pursuant to section
260B.178 that the child shall remain in detention.

(c) No child may be detained in an adult jail or municipal lockup longer than 24
hours, excluding Saturdays, Sundays, and holidays, or longer than six hours in an adult
jail or municipal lockup in a standard metropolitan statistical area, after being taken into
custody for a delinquent act as defined in section 260B.007, subdivision 6, unless:

(1) a petition has been filed under section 260B.141; and

(2) a judge or referee has determined under section 260B.178 that the child shall
remain in detention.

After August 1, 1991, no child described in this paragraph may be detained in an
adult jail or municipal lockup longer than 24 hours, excluding Saturdays, Sundays, and
holidays, or longer than six hours in an adult jail or municipal lockup in a standard
metropolitan statistical area, unless the requirements of this paragraph have been met and,
in addition, a motion to refer the child for adult prosecution has been made under section
260B.125. Notwithstanding this paragraph, continued detention of a child in an adult
detention facility outside of a standard metropolitan statistical area county is permissible if:

(i) the facility in which the child is detained is located where conditions of distance
to be traveled or other ground transportation do not allow for court appearances within 24
hours. A delay not to exceed 48 hours may be made under this clause; or

(ii) the facility is located where conditions of safety exist. Time for an appearance
may be delayed until 24 hours after the time that conditions allow for reasonably safe
travel. "Conditions of safety" include adverse life-threatening weather conditions that do
not allow for reasonably safe travel.

The continued detention of a child under clause (i) or (ii) must be reported to the
commissioner of corrections.

(d) If a child described in paragraph (c) is to be detained in a jail beyond 24 hours,
excluding Saturdays, Sundays, and holidays, the judge or referee, in accordance with
rules and procedures established by the commissioner of corrections, shall notify the
commissioner of the place of the detention and the reasons therefor. The commissioner
shall thereupon assist the court in the relocation of the child in an appropriate juvenile
secure detention facility or approved jail within the county or elsewhere in the state, or in
determining suitable alternatives. The commissioner shall direct that a child detained in a
jail be detained after eight days from and including the date of the original detention order
in an approved juvenile secure detention facility with the approval of the administrative
authority of the facility. If the court refers the matter to the prosecuting authority pursuant
to section 260B.125, notice to the commissioner shall not be required.

(e) When a child is detained for an alleged delinquent act in a state licensed juvenile
facility or program, or when a child is detained in an adult jail or municipal lockup as
provided in paragraph (c), the supervisor of the facility shall, if the child's parent or legal
guardian consents, have a children's mental health screening conducted with a screening
instrument approved by the commissioner of human services, unless a screening has been
performed within the previous 180 days or the child is currently under the care of a mental
health professional. The screening shall be conducted by a mental health practitioner
as defined in section 245.4871, subdivision 26, or a probation officer who is trained in
the use of the screening instrument. The screening shall be conducted after the initial
detention hearing has been held and the court has ordered the child continued in detention.
The results of the screening may only be presented to the court at the dispositional phase
of the court proceedings on the matter unless the parent or legal guardian consents to
presentation at a different time. If the screening indicates a need for assessment, the
local social services agency or probation officer, with the approval of the child's parent
or legal guardian, shall have a diagnostic assessment conducted, including a functional
assessment, as defined in section 245.4871.

new text begin (f) When a child is detained for an alleged delinquent act in a state licensed juvenile
facility or program, or when a child is detained in an adult jail or municipal lockup as
provided in paragraph (c), the supervisor of the facility shall, if the child's parent or legal
guardian consents, have a chemical use screen conducted with a screening instrument
approved by the commissioner of human services, unless a screening has been performed
within the previous 180 days or the child is currently under the care of a licensed alcohol
and drug counselor. The screening shall be conducted by a mental health practitioner as
defined in section 245.4871, subdivision 26, or a probation officer who is trained in the use
of the screening instrument. The screening shall be conducted after the initial detention
hearing has been held and the court has ordered the child continued in detention.
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 adultsdeleted text end .

A petition for
the sealing of deleted text begin a conviction recorddeleted 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; ordeleted 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.125new text end .

Sec. 5.

Minnesota Statutes 2008, section 609A.02, subdivision 3, is amended to read:


Subd. 3.

Certain criminal proceedings not resulting in conviction.

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 ifnew text begin :
new text end

new text begin (1)new text end 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 petitionernew text begin ; or
new text end

new text begin (2) the petitioner has successfully completed the terms of a diversion program or
stay of adjudication that was agreed to by the prosecutor and has not been charged with
a new crime for at least one year since completion of the diversion program or stay of
adjudication
new text end .

Sec. 6.

new text begin [609A.025] EXPUNGEMENT FOR CASES INVOLVING DIVERSION
AND STAYS OF ADJUDICATION; NO PETITION REQUIRED WITH
PROSECUTOR AGREEMENT AND VICTIM NOTIFICATION.
new text end

new text begin (a) Upon agreement of the prosecutor, the court shall seal the criminal record for
a person described in section 609A.02, subdivision 3, clause (2), without the filing of a
petition unless it determines that the interests of the public and public safety in keeping
the record public outweigh the disadvantages to the subject of the record in not sealing it.
new text end

new text begin (b) Before agreeing to the sealing of a record under this section, the prosecutor shall
make a good-faith effort to inform any identifiable victims of the offense of the intended
prosecutorial agreement and the opportunity to object to the agreement.
new text end

new text begin (c) Subject to paragraph (b), the prosecutor may agree to the sealing of records under
this section before or after the criminal charges are dismissed.
new text end

Sec. 7.

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. 8.

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 convictionnew text begin or delinquency recordnew 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 delinquency new text end record indicating all convictions
new text begin and findings of delinquency new text end for misdemeanors, gross misdemeanors, or felonies in this
state, and for all comparable convictions new text begin and findings of delinquency new text end in any other state,
federal court, or foreign country, whether the convictions new text begin or findings of delinquency
new text end occurred before or after the arrest deleted text begin ordeleted text end new text begin ,new text end convictionnew text begin , or finding of delinquencynew 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.

new text begin (c) Where practicable, the petitioner shall attach to the petition a copy of the
complaint or the police report for the offense or offenses for which expungement is sought.
new text end

Sec. 9.

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. 10.

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


Subd. 5.

Nature of remedy; standarddeleted text begin ; firearms restrictiondeleted 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 delinquencynew 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 juvenilenew 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
juvenile
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. 11.

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 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 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. 12.

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 investigationdeleted text begin ,deleted text end
deleted text begin prosecution, or sentencing,deleted text end upon an ex parte court order;

new text begin (2) an expunged record may be opened upon request by a prosecutor, or a probation
officer for sentencing purposes, without a court order;
new text end

deleted text begin (2)deleted text end new text begin (3) new text end an expunged record of a conviction new text begin or 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

deleted text begin (3)deleted text end new text begin (4) new text end an expunged record of a conviction new text begin or 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.

Sec. 13. new text begin REVISOR INSTRUCTION; TABLE OF JUVENILE COLLATERAL
SANCTIONS.
new text end

new text begin (a) The revisor of statutes shall publish a table in Minnesota Statutes that contains
cross-references to state laws that are collateral sanctions imposed on a juvenile as a result
of an adjudication of delinquency. The revisor shall create a structure that categorizes
these laws in a useful way to users.
new text end

new text begin (b) The revisor shall include appropriate cautionary language with the table,
including, at a minimum, language that notifies users that:
new text end

new text begin (1) the list of collateral sanctions laws is intended to be comprehensive but is not
necessarily complete;
new text end

new text begin (2) the inclusion or exclusion of a collateral sanction is not intended to have any
substantive legal effect; and
new text end

new text begin (3) users must consult the language of each cross-referenced law to fully understand
the scope and effect of the collateral sanction it imposes.
new text end

new text begin (c) The revisor shall consult with legislative staff and the chairs of the senate and
house committees having jurisdiction over criminal justice to identify laws that impose
collateral sanctions on a juvenile who has been adjudicated delinquent.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end