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SF 560

Conference Committee Report - 86th Legislature (2009 - 2010) Posted on 12/26/2012 11:25pm

KEY: stricken = removed, old language.
underscored = added, new language.
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A bill for an act
relating to public safety; expanding and modifying the expungement law;
authorizing courts to modify or suspend collateral sanctions under certain
circumstances; limiting the situations in which a juvenile delinquency criminal
record is publicly available; amending Minnesota Statutes 2008, sections
260B.171, subdivisions 4, 5; 609.135, by adding a subdivision; 609A.02,
subdivisions 2, 3; 609A.03, subdivisions 2, 3, 4, 5, 5a, 7; 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 2008, section 260B.171, subdivision 4, is amended to
read:


Subd. 4.

Public inspection of records.

(a) Legal records arising from proceedings
or portions of proceedings that are public under section 260B.163, subdivision 1, are
open to public inspectionnew text begin only if the proceeding results in the juvenile being adjudicated
delinquent for having committed an offense that would be a felony if committed by an
adult
new text end .

(b) Except as otherwise provided by this section, none of the records of the juvenile
court and none of the records relating to an appeal from a nonpublic juvenile court
proceeding, except the written appellate opinion, shall be open to public inspection or
their contents disclosed except:

(1) by order of a court; or

(2) as required by chapter 245C or sections 245A.04, 611A.03, 611A.04, 611A.06,
and 629.73.

(c) The victim of any alleged delinquent act may, upon the victim's request, obtain
the following information, unless it reasonably appears that the request is prompted by a
desire on the part of the requester to engage in unlawful activities:

(1) the name and age of the juvenile;

(2) the act for which the juvenile was petitioned and date of the offense; and

(3) the disposition, including, but not limited to, dismissal of the petition, diversion,
probation and conditions of probation, detention, fines, or restitution.

(d) The records of juvenile probation officers and county home schools are records
of the court for the purposes of this subdivision. Court services data relating to delinquent
acts that are contained in records of the juvenile court may be released as allowed under
section 13.84, subdivision 6. This subdivision applies to all proceedings under this
chapter, including appeals from orders of the juvenile court, except that this subdivision
does not apply to proceedings under section 260B.335 or 260B.425 when the proceeding
involves an adult defendant. The court shall maintain the confidentiality of adoption files
and records in accordance with the provisions of laws relating to adoptions. In juvenile
court proceedings any report or social history furnished to the court shall be open to
inspection by the attorneys of record and the guardian ad litem a reasonable time before it
is used in connection with any proceeding before the court.

(e) When a judge of a juvenile court, or duly authorized agent of the court,
determines under a proceeding under this chapter that a child has violated a state or local
law, ordinance, or regulation pertaining to the operation of a motor vehicle on streets
and highways, except parking violations, the judge or agent shall immediately report
the violation to the commissioner of public safety. The report must be made on a form
provided by the Department of Public Safety and must contain the information required
under section 169.95.

(f) A county attorney may give a law enforcement agency that referred a delinquency
matter to the county attorney a summary of the results of that referral, including the details
of any juvenile court disposition.

Sec. 2.

Minnesota Statutes 2008, section 260B.171, subdivision 5, is amended to read:


Subd. 5.

Peace officer records of children.

(a) Except for records relating to an
offense where proceedings are public under section 260B.163, subdivision 1, new text begin and the
proceeding results in the juvenile being adjudicated delinquent for having committed an
offense that would be a felony if committed by an adult,
new text end peace officers' records of children
who are or may be delinquent or who may be engaged in criminal acts shall be kept
separate from records of persons 18 years of age or older and are private data but shall be
disseminated: (1) by order of the juvenile court, (2) as required by section 121A.28, (3)
as authorized under section 13.82, subdivision 2, (4) to the child or the child's parent or
guardian unless disclosure of a record would interfere with an ongoing investigation, (5) to
the Minnesota crime victims reparations board as required by section 611A.56, subdivision
2
, clause (6), for the purpose of processing claims for crime victims reparations, or
(6) as otherwise provided in this subdivision. Except as provided in paragraph (c), no
photographs of a child taken into custody may be taken without the consent of the juvenile
court unless the child is alleged to have violated section 169A.20. Peace officers' records
containing data about children who are victims of crimes or witnesses to crimes must be
administered consistent with section 13.82, subdivisions 2, 3, 6, and 17. Any person
violating any of the provisions of this subdivision shall be guilty of a misdemeanor.

In the case of computerized records maintained about juveniles by peace officers,
the requirement of this subdivision that records about juveniles must be kept separate
from adult records does not mean that a law enforcement agency must keep its records
concerning juveniles on a separate computer system. Law enforcement agencies may keep
juvenile records on the same computer as adult records and may use a common index to
access both juvenile and adult records so long as the agency has in place procedures that
keep juvenile records in a separate place in computer storage and that comply with the
special data retention and other requirements associated with protecting data on juveniles.

(b) Nothing in this subdivision prohibits the exchange of information by law
enforcement agencies if the exchanged information is pertinent and necessary for law
enforcement purposes.

(c) A photograph may be taken of a child taken into custody pursuant to section
260B.175, subdivision 1, clause (b), provided that the photograph must be destroyed when
the child reaches the age of 19 years. The commissioner of corrections may photograph
juveniles whose legal custody is transferred to the commissioner. Photographs of juveniles
authorized by this paragraph may be used only for institution management purposes,
case supervision by parole agents, and to assist law enforcement agencies to apprehend
juvenile offenders. The commissioner shall maintain photographs of juveniles in the same
manner as juvenile court records and names under this section.

(d) Traffic investigation reports are open to inspection by a person who has sustained
physical harm or economic loss as a result of the traffic accident. Identifying information
on juveniles who are parties to traffic accidents may be disclosed as authorized under
section 13.82, subdivision 6, and accident reports required under section 169.09 may be
released under section 169.09, subdivision 13, unless the information would identify a
juvenile who was taken into custody or who is suspected of committing an offense that
would be a crime if committed by an adult, or would associate a juvenile with the offense,
and the offense is not an adult court traffic offense under section 260B.225.

(e) The head of a law enforcement agency or a person specifically given the duty
by the head of the law enforcement agency shall notify the superintendent or chief
administrative officer of a juvenile's school of an incident occurring within the agency's
jurisdiction if:

(1) the agency has probable cause to believe that the juvenile has committed an
offense that would be a crime if committed as an adult, that the victim of the offense is a
student or staff member of the school, and that notice to the school is reasonably necessary
for the protection of the victim; or

(2) the agency has probable cause to believe that the juvenile has committed an
offense described in subdivision 3, paragraph (a), clauses (1) to (3), that would be a crime
if committed by an adult, regardless of whether the victim is a student or staff member
of the school.

A law enforcement agency is not required to notify the school under this paragraph
if the agency determines that notice would jeopardize an ongoing investigation. For
purposes of this paragraph, "school" means a public or private elementary, middle,
secondary, or charter school.

(f) In any county in which the county attorney operates or authorizes the operation
of a juvenile prepetition or pretrial diversion program, a law enforcement agency or
county attorney's office may provide the juvenile diversion program with data concerning
a juvenile who is a participant in or is being considered for participation in the program.

(g) Upon request of a local social services agency, peace officer records of
children who are or may be delinquent or who may be engaged in criminal acts may be
disseminated to the agency to promote the best interests of the subject of the data.

(h) Upon written request, the prosecuting authority shall release investigative data
collected by a law enforcement agency to the victim of a criminal act or alleged criminal
act or to the victim's legal representative, except as otherwise provided by this paragraph.
Data shall not be released if:

(1) the release to the individual subject of the data would be prohibited under
section 13.821; or

(2) the prosecuting authority reasonably believes:

(i) that the release of that data will interfere with the investigation; or

(ii) that the request is prompted by a desire on the part of the requester to engage in
unlawful activities.

Sec. 3.

Minnesota Statutes 2008, section 609.135, is amended by adding a subdivision
to read:


new text begin Subd. 9. new text end

new text begin Suspension or modification of collateral sanction. new text end

new text begin (a) Upon the request
of the offender, a court staying imposition or execution of a sentence under this section
may modify or suspend the application of a collateral sanction described in chapter 609B
upon the successful completion by the offender of the terms of the offender's sentence
and probation. The court shall give the prosecutor the opportunity to be heard and take
into consideration the prosecutor's position. If the court grants the offender's request,
the court shall specify in writing the extent of the relief ordered, including the specific
collateral sanctions that are affected by the order.
new text end

new text begin (b) Notwithstanding paragraph (a), the court may not suspend or modify a collateral
sanction relating to predatory offender registration, voting eligibility, firearms possession,
or driving while impaired.
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 a deleted text begin convictiondeleted text end new text begin criminal new text end record new text begin 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 matter was resolved 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 convictionnew text begin or
adjudication
new text end .

new text begin (a) new text end A petition may be filed under section 609A.03 to seal all records relating
to deleted text begin an arrest, indictment or information, trial, or verdictdeleted text end new text begin a criminal offense new text end if the records are
not subject to section 299C.11, subdivision 1, paragraph (b), and if deleted text begin 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
deleted text end new text begin the case was
ultimately dismissed without
new text end the petitionernew text begin being convicted or adjudicated for the offensenew text end .

new text begin (b) A person is not considered to have been convicted or adjudicated under this
subdivision if the person has successfully completed the terms of a diversion program,
stay of adjudication, continuance, or similar proceeding.
new text end

new text begin (c) A person found not guilty of a criminal offense by reason of mental illness is not
eligible to file for an expungement under this subdivision.
new text end

Sec. 6.

new text begin [609A.025] MOTION FOR EXPUNGEMENT WHEN CHARGES ARE
DISMISSED; NO PETITION REQUIRED.
new text end

new text begin A person described in section 609A.02, subdivision 3, may make a written or oral
motion to the court upon the dismissal of the case and upon notice to the prosecutor for
the sealing of all records relating to the offense. Section 609A.03, subdivisions 1, 2, 3,
4, and 5, do not apply to a motion under this section. The court shall grant the motion
unless the interests of the public and public safety in keeping the record public outweigh
the disadvantages to the movant of not sealing the record. Denial of expungement under
this section does not prejudice the person if the person later petitions for an expungement
under this chapter.
new text end

Sec. 7.

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 adjudicationnew 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 adjudication new text end record indicating all convictions
new text begin and adjudications new text end for misdemeanors, gross misdemeanors, or felonies in this state, and for
all comparable convictions new text begin and adjudications new text end in any other state, federal court, or foreign
country, whether the convictions new text begin or adjudications 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 adjudicationnew 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.

Sec. 8.

Minnesota Statutes 2008, section 609A.03, subdivision 3, is amended to read:


Subd. 3.

Service of petition and proposed order.

(a) The petitioner shall serve by
mail the petition for expungement and a proposed expungement order on the prosecutorial
office that had jurisdiction over the offense for which expungement is sought and all
other state and local government agencies and jurisdictions whose records would be
affected by the proposed order. The petitioner shall also serve by mail the attorney for
each agency and jurisdiction.

(b) The prosecutorial office that had jurisdiction over the offense for which
expungement is sought shall serve by mail the petition for expungement and a proposed
expungement order on any victims of the offense for which expungement is sought who
have requested notice of expungement pursuant to section 611A.06. Service under this
paragraph does not constitute a violation of an existing order for protection, restraining
order, or other no contact order.

(c) The prosecutorial office's notice to victims of the offense under this subdivision
must specifically inform the victims of the victims' right to be present and to submit an oral
or written statement at the expungement hearing described in subdivision 4new text begin , paragraph (a).
If a hearing is not required, the notice must also inform the victims that the prosecutorial
office will specifically request a hearing if a victim demands one
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) Notwithstanding paragraph (a), a hearing is not required for a petition authorized
in section 609A.02, subdivision 1 or 3, unless a prosecutorial office or state or local
government agency or jurisdiction described in subdivision 3, paragraph (a), requests a
hearing within 30 days of service. If a hearing is properly requested, it must be conducted
under paragraph (a). The prosecutorial office shall request a hearing if a victim of the
offense for which expungement is sought demands one under subdivision 3, paragraph (c).
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), 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) deleted text begin Except as otherwise provided by this paragraph,deleted text end If the petitioner is petitioning for
the sealing of a criminal record under section 609A.02, subdivision new text begin 1 or new text end 3, new text begin and a hearing is
requested under subdivision 4, paragraph (b),
new text end 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 begin If no hearing is requested, the
court shall grant the petition to seal the record.
new text end

(c) new text begin If the petitioner is petitioning for the sealing of a criminal record under
subdivision 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 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 adjudication 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 adjudication 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 investigation,
prosecution, or sentencing, upon an ex parte court order;

(2) an expunged record of a conviction new text begin or adjudication new text end may be opened for purposes of
evaluating a prospective employee in a criminal justice agency without a court order; deleted text begin and
deleted text end

(3) an expunged record of a conviction new text begin or adjudication 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 servicesnew text begin ; and
new text end

new text begin (4) an expunged record may be opened to the subject of the record upon proof of
identification and without a court order
new text end .

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.