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SF 294

1st Engrossment - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

KEY: stricken = removed, old language.
underscored = added, new language.
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A bill for an act
relating to public safety; recodifying and restructuring the law on expungements
of criminal records; expanding eligibility for expungements; requiring notice
to employment applicants that a question regarding criminal history does not
apply to sealed or expunged records; proposing coding for new law in Minnesota
Statutes, chapter 181; proposing coding for new law as Minnesota Statutes,
chapter 609C; repealing Minnesota Statutes 2006, sections 609A.01; 609A.02;
609A.03.

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

Section 1.

new text begin [181.968] EMPLOYMENT APPLICATIONS; EXPUNGED RECORDS.
new text end

new text begin An application for employment used by an employer that seeks information
concerning prior arrests or convictions of the applicant must state that the request for
information does not apply to sealed or expunged criminal records.
new text end

Sec. 2.

new text begin [609C.01] CRIMINAL RECORDS EXPUNGEMENT.
new text end

new text begin This chapter provides the grounds and procedures for expungement of criminal
records under sections 13.82; 152.18, subdivision 1; 299C.11, where a petition is
authorized under section 609C.02; or other applicable law. The remedy available is
limited to a court order sealing the 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. The court
has no authority to order the expungement of executive branch records relating to criminal
activity, except as provided in this chapter.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2007, and applies to
expungement petitions filed on or after that date.
new text end

Sec. 3.

new text begin [609C.02] GROUNDS FOR ORDER.
new text end

new text begin (a) A person may petition under section 609C.03 for the sealing of all records
relating to the person's arrest, citation, indictment or information, complaint, trial, guilty
plea, or verdict regardless of whether the proceedings were resolved in the person's favor.
new text end

new text begin (b) Records of a conviction of an offense for which registration is required under
section 243.166 may not be expunged.
new text end

new text begin (c) A court may not grant an expungement if the petitioner is under correctional
supervision for an offense or is currently charged with violating a criminal law.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2007, and applies to
expungement petitions filed on or after that date.
new text end

Sec. 4.

new text begin [609C.03] PETITION TO EXPUNGE CRIMINAL RECORDS.
new text end

new text begin Subdivision 1. new text end

new text begin Petition; filing fee. new text end

new text begin 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 if the actions or proceedings that resulted in the criminal
record were resolved in favor of the petitioner.
new text end

new text begin Subd. 2. new text end

new text begin Contents of petition. new text end

new text begin (a) A petition for expungement shall be signed under
oath by the petitioner and shall state the following:
new text end

new text begin (1) the petitioner's full name and all other legal names or aliases by which the
petitioner has been known at any time;
new text end

new text begin (2) the petitioner's date of birth;
new text end

new text begin (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;
new text end

new text begin (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;
new text end

new text begin (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;
new text end

new text begin (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;
new text end

new text begin (7) the 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;
new text end

new text begin (8) the 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
new text end

new text begin (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.
new text end

new text begin (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 end

new text begin Subd. 3. new text end

new text begin Service of petition and proposed order. new text end

new text begin (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.
new text end

new text begin (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 . Service under this
paragraph does not constitute a violation of an existing order for protection, restraining
order, or other no-contact order.
new text end

new text begin (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 4.
new text end

new text begin Subd. 4. new text end

new text begin Hearing. new text end

new text begin 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 end

new text begin Subd. 5. new text end

new text begin Maintenance of records. new text end

new text begin If the court issues an expungement order it may
require that the criminal record be sealed and the record not be opened except as provided
under subdivision 8. An expungement order or a record of the existence of an expunged
record must not be disclosed, except as provided under subdivision 8. Records must not
be destroyed or returned to the subject of the record.
new text end

new text begin Subd. 6. new text end

new text begin Order concerning crimes of violence. new text end

new text begin An order expunging the record of
a conviction for a crime of violence as defined in section new text begin624.712, subdivision 5new text end, 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 is expunged
under this section and who receives a relief of disability under United States Code, title 18,
section 925, or whose ability to possess firearms has been restored under section new text begin609.165,
subdivision 1d
new text end
, is not subject to the restriction in this subdivision.
new text end

new text begin Subd. 7. new text end

new text begin Effect of order. new text end

new text begin (a) Except as provided in paragraph (b), if the court orders
an expungement under this section, 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, citation,
indictment or information, complaint, trial, guilty plea, or verdict. The person shall not
be held guilty of perjury or otherwise of giving a false statement if the person fails to
acknowledge any of these events in response to any inquiry made for any purpose.
new text end

new text begin (b) An expunged conviction is considered a conviction for purposes of other
expungement proceedings by the same petitioner; criminal history for sentencing
or calculating a criminal history score under the sentencing guidelines; subsequent
prosecutions where a prior conviction is an element of the charge; evidence of other
crimes; and impeachment.
new text end

new text begin Subd. 8. new text end

new text begin Limitations of order. new text end

new text begin (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
, shall not be sealed, returned to the subject of the record, or destroyed.
new text end

new text begin (b) Notwithstanding the issuance of an expungement order:
new text end

new text begin (1) an expunged record may be opened for purposes of a criminal investigation,
prosecution, or sentencing without a court order;
new text end

new text begin (2) the fact that an expunged record exists may be made available to law enforcement
authorities acting within the scope of official duties;
new text end

new text begin (3) an expunged record may be opened for purposes of evaluating a prospective
employee in a criminal justice agency without a court order; and
new text end

new text begin (4) 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.
new text end

new text begin 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 an expunged 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.
new text end

new text begin Subd. 9. new text end

new text begin Distribution of expungement orders. new text end

new text begin 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.
new text end

new text begin Subd. 10. new text end

new text begin Stay of order; appeal. new text end

new text begin An expungement order shall be stayed
automatically for 60 days after the order is filed and, if the order is appealed, during the
appeal period. A person or an agency or jurisdiction whose records would be affected by
the order may appeal the order within 60 days of service of notice of filing of the order. An
agency or jurisdiction or its officials or employees need not file a cost bond or supersedeas
bond in order to further stay the proceedings or file an appeal.
new text end

new text begin Subd. 11. new text end

new text begin Factors to be considered; extent of order. new text end

new text begin (a) When deciding whether
to issue an expungement order under this section, the court shall consider and issue a
written finding concerning:
new text end

new text begin (1) the nature and severity of the underlying crime whose record is the subject of
the expungement petition;
new text end

new text begin (2) the danger, if any, the petitioner poses to any individuals or society;
new text end

new text begin (3) the length of time since the crime occurred;
new text end

new text begin (4) the steps taken by the petitioner towards rehabilitation following the crime;
new text end

new text begin (5) extenuating or mitigating factors relating to the underlying crime, including, but
not limited to, the petitioner's level of participation, claims of innocence, and irregularities
in the trial;
new text end

new text begin (6) the reasons for the expungement, including, but not limited to, the petitioner's
attempts to obtain employment, housing, or other necessities;
new text end

new text begin (7) the petitioner's criminal record;
new text end

new text begin (8) the petitioner's record of employment and community involvement;
new text end

new text begin (9) the recommendations of interested law enforcement, prosecutorial, and
corrections officials;
new text end

new text begin (10) the recommendations of any victims of the underlying crime; and
new text end

new text begin (11) any other factor deemed relevant by the court.
new text end

new text begin (b) Except as provided in paragraph (c), a court may grant an expungement if it
determines by a preponderance of the evidence that the benefit to the petitioner outweighs
the disadvantages to the public and public safety after considering the factors listed in
paragraph (a).
new text end

new text begin (c) If the proceedings had been resolved in the petitioner's favor, the expungement
shall be granted 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 outweighs the disadvantages to the petitioner of not sealing the records.
new text end

new text begin (d) If the court grants the expungement petition, it shall specify what records are to
be affected by the order. The order may affect judicial branch records, executive branch
records, and any other government records deemed appropriate by the court.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2007, and applies to
expungement petitions filed on or after that date.
new text end

Sec. 5.

new text begin [609C.04] EMPLOYER DUTIES RELATED TO EXPUNGED RECORDS.
new text end

new text begin Subdivision 1. new text end

new text begin No duty to discover. new text end

new text begin An employer or prospective employer does
not have a duty to discover or use a record that has been expunged under this chapter or
other law for purposes of making an employment decision.
new text end

new text begin Subd. 2. new text end

new text begin Employment applications. new text end

new text begin A prospective employer must comply with
section 181.968 when seeking information on prior arrests or convictions.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2007.
new text end

Sec. 6. new text beginREVISOR'S INSTRUCTION.
new text end

new text begin The revisor of statutes shall replace all statutory references to Minnesota Statutes,
sections 609A.01 to 609A.03, with references to the appropriate successor sections in
chapter 609C.
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

Sec. 7. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2006, sections 609A.01; 609A.02; and 609A.03, new text end new text begin are repealed.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2007, and applies to
expungement petitions filed on or after that date.
new text end