HF 2576

1st Unofficial Engrossment - 88th Legislature (2013 - 2014) Posted on 04/28/2014 04:51pm

1.1A bill for an act

1.2relating to criminal justice; modifying provisions governing expungement of
1.3criminal records; requiring business screening services to delete expunged
1.4records; allowing expungement of eviction records in certain cases; amending
1.5Minnesota Statutes 2012, sections 260B.198, subdivision 6; 332.70, by adding
1.6a subdivision; 504B.345, subdivision 1; 609A.02, subdivision 3; 609A.03,
1.7subdivisions 1, 5, 7, 8; proposing coding for new law in Minnesota Statutes,
1.8chapter 609A.
1.9BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

1.10    Section 1. Minnesota Statutes 2012, section 260B.198, subdivision 6, is amended to
1.11read:
1.12    Subd. 6. Expungement. Except when legal custody is transferred under the
1.13provisions of subdivision 1, clause (4), (a) The court may expunge the adjudication of
1.14 all records relating to the arrest and delinquency proceedings at any time that it deems
1.15advisable if the court determines that expungement of the record would yield a benefit
1.16to the subject of the record that outweighs the detriment to the public and public safety
1.17in sealing the record and the burden on the court and public agencies or jurisdictions in
1.18issuing, enforcing, and monitoring the order.
1.19(b) In making a determination under this subdivision, the court shall consider:
1.20(1) the age, education, experience, and background, including mental and emotional
1.21development, of the subject of the record at the time of commission of the offense;
1.22(2) the circumstances and nature and severity of the offense, including any
1.23aggravating or mitigating factors in the commission of the offense;
1.24(3) victim and community impact, including age and vulnerability of the victim;
1.25(4) the level of participation of the subject of the record in the planning and carrying
1.26out of the offense, including familial or peer influence in the commission of the offense;
2.1(5) the juvenile delinquency and criminal history of the subject of the record;
2.2(6) the programming history of the subject of the record, including child welfare,
2.3school and community-based, and probation interventions, and the subject's willingness to
2.4participate meaningfully in programming, probation, or both;
2.5(7) any other aggravating or mitigating circumstance bearing on the culpability or
2.6potential for rehabilitation of the subject of the record; and
2.7(8) the benefit that expungement would yield to the subject of the record in pursuing
2.8education, employment, housing, or other necessities.
2.9(c) Notwithstanding paragraph (a), a record that is expunged under this subdivision
2.10may be opened or exchanged between criminal justice agencies in the same manner as a
2.11criminal record under section 609A.03, subdivision 7, paragraph (b).
2.12(d) Section 609A.03, subdivision 9, applies to an appeal of an order under this
2.13subdivision.

2.14    Sec. 2. Minnesota Statutes 2012, section 332.70, is amended by adding a subdivision
2.15to read:
2.16    Subd. 3a. Deletion of expunged records. If a business screening service knows that
2.17a criminal record has been sealed, expunged, or is the subject of a pardon, the screening
2.18service shall promptly delete the record.

2.19    Sec. 3. Minnesota Statutes 2012, section 504B.345, subdivision 1, is amended to read:
2.20    Subdivision 1. General. (a) If the court or jury finds for the plaintiff, the court shall
2.21immediately enter judgment that the plaintiff shall have recovery of the premises, and shall
2.22tax the costs against the defendant. The court shall issue execution in favor of the plaintiff
2.23for the costs and also immediately issue a writ of recovery of premises and order to vacate.
2.24(b) The court shall give priority in issuing a writ of recovery of premises and order
2.25to vacate for an eviction action brought under section 504B.171 or on the basis that the
2.26tenant is causing a nuisance or seriously endangers the safety of other residents, their
2.27property, or the landlord's property.
2.28(c) If the court or jury finds for the defendant,:
2.29 (1) the court shall enter judgment for the defendant, tax the costs against the plaintiff,
2.30and issue execution in favor of the defendant; and
2.31(2) the court may expunge the records relating to the action under the provisions
2.32of section 484.014 at the time judgment is entered or after that time upon motion of the
2.33defendant.
3.1(d) Except in actions brought: (1) under section 504B.291 as required by section
3.2609.5317, subdivision 1 ; (2) under section 504B.171; or (3) on the basis that the tenant is
3.3causing a nuisance or seriously endangers the safety of other residents, their property, or
3.4the landlord's property, upon a showing by the defendant that immediate restitution of the
3.5premises would work a substantial hardship upon the defendant or the defendant's family,
3.6the court shall stay the writ of recovery of premises and order to vacate for a reasonable
3.7period, not to exceed seven days.

3.8    Sec. 4. Minnesota Statutes 2012, section 609A.02, subdivision 3, is amended to read:
3.9    Subd. 3. Certain criminal proceedings not resulting in conviction. (a) A petition
3.10may be filed under section 609A.03 to seal all records relating to an arrest, indictment or
3.11information, trial, or verdict if the records are not subject to section 299C.11, subdivision
3.121 , paragraph (b), and if:
3.13(1) all pending actions or proceedings were resolved in favor of the petitioner.
3.14For purposes of this chapter, a verdict of not guilty by reason of mental illness is not a
3.15resolution in favor of the petitioner.;
3.16(2) the petitioner has successfully completed the terms of a diversion program or
3.17stay of adjudication and has not been charged with a new crime for at least one year since
3.18completion of the diversion program or stay of adjudication;
3.19(3) the petitioner was convicted of or received a stayed sentence for a petty
3.20misdemeanor, misdemeanor, or gross misdemeanor and has not been convicted of a new
3.21crime for at least three years since discharge of the sentence for the crime; or
3.22(4) the petitioner was convicted of or received a stayed sentence for a felony
3.23violation of an offense listed in paragraph (b), and has not been convicted of a new crime
3.24for at least five years since discharge of the sentence for the crime.
3.25(b) Paragraph (a), clause (4), applies to the following offenses:
3.26(1) section 35.824 (altering livestock certificate);
3.27(2) section 62A.41 (insurance regulations);
3.28(3) section 86B.865, subdivision 1 (certification for title on watercraft);
3.29(4) section 152.025 (controlled substance in the fifth degree); 152.027, subdivision
3.306, paragraph (c) (sale of synthetic cannabinoids); or 152.097 (sale of simulated controlled
3.31substance);
3.32(5) section 168A.30, subdivision 1 (certificate of title false information); or 169.09,
3.33subdivision 14, paragraph (a), clause (1) or (2) (accident resulting in death or great
3.34bodily harm);
3.35(6) chapter 201; 203B; or 204C (voting violations);
4.1(7) section 228.45; 228.47; 228.49; 228.50, or 228.51 (false bill of lading);
4.2(8) section 256.984 (false declaration in assistance application);
4.3(9) section 296A.23, subdivision 2 (willful evasion of fuel tax);
4.4(10) section 297D.09, subdivision 1 (failure to affix stamp on scheduled substances);
4.5(11) section 297G.19 (liquor taxation); or 340A.701 (unlawful acts involving liquor);
4.6(12) section 325F.743 (precious metal dealers); or 325F.755, subdivision 7 (prize
4.7notices and solicitations);
4.8(13) section 346.155, subdivision 10 (failure to control regulated animal);
4.9(14) section 349.2127; or 349.22 (gambling regulations);
4.10(15) section 588.20 (contempt);
4.11(16) section 609.26, subdivision 6, paragraph (a), clause (1) (deprivation of custodial
4.12or parental rights);
4.13(17) section 609.27, subdivision 1, clauses (2) to (5) (coercion);
4.14(18) section 609.31 (leaving state to evade establishment of paternity); or 609.375,
4.15subdivision 2a (nonsupport of spouse or child);
4.16(19) section 609.3242, subdivision 2, clause (2) (prostitution crime in school or
4.17park zone);
4.18(20) section 609.485, subdivision 4, paragraph (a), clause (2) or (4) (escape from
4.19civil commitment or mental illness);
4.20(21) section 609.487, subdivision 3 (fleeing a peace officer);
4.21(22) section 609.49 (failure to appear in court); or 609.495, subdivision 1 (aiding
4.22offender to avoid arrest);
4.23(23) section 609.52, subdivision 3, clause (3)(a) (theft of $5,000 or less), or other
4.24theft offense that is sentenced under this provision; or 609.52, subdivision 3a, clause (1)
4.25(theft of $1,000 or less with risk of bodily harm);
4.26(24) section 609.525 (bringing stolen goods into state);
4.27(25) section 609.526, subdivision 2, clause (2) (metal dealer receiving stolen goods);
4.28(26) section 609.527, subdivision 3, clause (3), or subdivision 5a (identity theft);
4.29(27) section 609.527, subdivision 5b (possession or use of scanning device or
4.30reencorder); 609.528, subdivision 3, clause (3) (possession or sale of stolen or counterfeit
4.31check); or 609.529 (mail theft);
4.32(28) section 609.53 (receiving stolen goods);
4.33(29) section 609.535, subdivision 2a, paragraph (a), clause (1) (dishonored check
4.34over $500);
4.35(30) section 609.54, clause (1) (embezzlement of public funds $2,500 or less);
4.36(31) section 609.551 (rustling and livestock theft);
5.1(32) section 609.5641, subdivision 1a, paragraph (a) (wildfire arson);
5.2(33) section 609.576, subdivision 1, clause (3), item (iii) (negligent fires);
5.3(34) section 609.595, subdivision 1, clauses (2) to (4), and subdivision 1a, paragraph
5.4(a) (criminal damage to property);
5.5(35) section 609.597, subdivision 3, clause (3) (assaulting or harming police horse);
5.6(36) section 609.625 (aggravated forgery); 609.63 (forgery); 609.631, subdivision
5.74, clause (3)(a) (check forgery $2,500 or less); 609.635 (obtaining signature by false
5.8pretense); 609.64 (recording, filing forged instrument); or 609.645 (fraudulent statements);
5.9(37) section 609.65, clause (1) (false certification by notary); or 609.651, subdivision
5.104, paragraph (a) (lottery fraud);
5.11(38) section 609.652 (fraudulent driver's license and identification card);
5.12(39) section 609.66, subdivision 1a, paragraph (a) (discharge of firearm; silencer);
5.13609.66, subdivision 1b (furnishing firearm to minor); or 609.66, subdivision 1c (furnishing
5.14a dangerous weapon);
5.15(40) section 609.662, subdivision 2, paragraph (b) (duty to render aid);
5.16(41) section 609.667 (removing or altering serial number on firearm); or 609.686,
5.17subdivision 2 (tampering with fire alarm);
5.18(42) section 609.746, subdivision 1, paragraph (e) (interference with privacy;
5.19subsequent violation or minor victim);
5.20(43) section 609.80, subdivision 2 (interference with cable communications system);
5.21(44) section 609.821, subdivision 2 (financial transaction card fraud);
5.22(45) section 609.822 (residential mortgage fraud);
5.23(46) section 609.825, subdivision 2 (bribery of participant or official in contest);
5.24(47) section 609.855, subdivision 2, paragraph (c), clause (1) (interference with
5.25transit operator);
5.26(48) section 609.88 (computer damage); or 609.89 (computer theft);
5.27(49) section 609.893, subdivision 2 (telecommunications and information services
5.28fraud);
5.29(50) section 609.894, subdivision 3 or 4 (cellular counterfeiting);
5.30(51) section 609.895, subdivision 3, paragraph (a) or (b) (counterfeited intellectual
5.31property);
5.32(52) section 609.896 (movie pirating);
5.33(53) section 624.7132, subdivision 15, paragraph (b) (transfer pistol to minor);
5.34624.714, subdivision 1a (pistol without permit; subsequent violation); or 624.7141,
5.35subdivision 2 (transfer of pistol to ineligible person); or
5.36(54) section 624.7181 (rifle or shotgun in public by minor).

6.1    Sec. 5. [609A.025] NO PETITION REQUIRED IN CERTAIN CASES WITH
6.2PROSECUTOR AGREEMENT AND NOTIFICATION.
6.3(a) If the prosecutor agrees to the sealing of a criminal record, the court shall seal the
6.4criminal record for a person described in section 609A.02, subdivision 3, without the filing
6.5of a petition unless it determines that the interests of the public and public safety in keeping
6.6the record public outweigh the disadvantages to the subject of the record in not sealing it.
6.7(b) Before agreeing to the sealing of a record under this section, the prosecutor shall
6.8make a good faith effort to notify any identifiable victims of the offense of the intended
6.9agreement and the opportunity to object to the agreement.
6.10(c) Subject to paragraph (b), the agreement of the prosecutor to the sealing of records
6.11for a person described in section 609A.02, subdivision 3, paragraph (a), clause (2), may
6.12occur before or after the criminal charges are dismissed.

6.13    Sec. 6. Minnesota Statutes 2012, section 609A.03, subdivision 1, is amended to read:
6.14    Subdivision 1. Petition; filing fee. An individual who is the subject of a criminal
6.15record who is seeking the expungement of the record shall file a petition under this section
6.16and pay a filing fee in the amount required under section 357.021, subdivision 2, clause
6.17(1). The filing fee may be waived in cases of indigency and shall be waived in the cases
6.18described in section 609A.02, subdivision 3, paragraph (a), clause (1).

6.19    Sec. 7. Minnesota Statutes 2012, section 609A.03, subdivision 5, is amended to read:
6.20    Subd. 5. Nature of remedy; standard. (a) Except as otherwise provided by
6.21paragraph (b), expungement of a criminal record is an extraordinary remedy to be granted
6.22only upon clear and convincing evidence that it would yield a benefit to the petitioner
6.23commensurate with the disadvantages to the public and public safety of:
6.24(1) sealing the record; and
6.25(2) burdening the court and public authorities to issue, enforce, and monitor an
6.26expungement order.
6.27(b) Except as otherwise provided by this paragraph, if the petitioner is petitioning
6.28for the sealing of a criminal record under section 609A.02, subdivision 3, paragraph (a),
6.29clause (1) or (2), the court shall grant the petition to seal the record unless the agency
6.30or jurisdiction whose records would be affected establishes by clear and convincing
6.31evidence that the interests of the public and public safety outweigh the disadvantages
6.32to the petitioner of not sealing the record.
6.33(c) In making a determination under this subdivision, the court shall consider:
7.1(1) the nature and severity of the underlying crime the record of which would be
7.2sealed;
7.3(2) the risk, if any, the petitioner poses to individuals or society;
7.4(3) the length of time since the crime occurred;
7.5(4) the steps taken by the petitioner towards rehabilitation following the crime;
7.6(5) aggravating or mitigating factors relating to the underlying crime, including the
7.7petitioner's level of participation, claims of innocence, and irregularities in the trial;
7.8(6) the reasons for the expungement, including the petitioner's attempts to obtain
7.9employment, housing, or other necessities;
7.10(7) the petitioner's criminal record;
7.11(8) the petitioner's record of employment and community involvement;
7.12(9) the recommendations of interested law enforcement, prosecutorial, and
7.13corrections officials;
7.14(10) the recommendations of victims of the underlying crime; and
7.15(11) other factors deemed relevant by the court.
7.16(c) (d) Notwithstanding section 13.82, 13.87, or any other law to the contrary, if the
7.17court issues an expungement order it may require that the criminal record be sealed, the
7.18existence of the record not be revealed, and the record not be opened except as required
7.19under subdivision 7. Records must not be destroyed or returned to the subject of the record.

7.20    Sec. 8. Minnesota Statutes 2012, section 609A.03, subdivision 7, is amended to read:
7.21    Subd. 7. Limitations of order. (a) Upon issuance of an expungement order related
7.22to a charge supported by probable cause, the DNA samples and DNA records held by
7.23the Bureau of Criminal Apprehension and collected under authority other than section
7.24299C.105 , shall not be sealed, returned to the subject of the record, or destroyed.
7.25(b) Notwithstanding the issuance of an expungement order:
7.26(1) an expunged record may be opened for purposes of a criminal investigation,
7.27prosecution, or sentencing, upon an ex parte court order or exchanged between criminal
7.28justice agencies without a court order if the record is pertinent in initiating, furthering,
7.29or completing an investigation or prosecution or for sentencing purposes or providing
7.30probation or other correctional services;
7.31(2) an expunged record of a conviction may be opened for purposes of evaluating a
7.32prospective employee in a criminal justice agency without a court order; and
7.33(3) an expunged record of a conviction may be opened for purposes of a background
7.34study under section 245C.08 unless the court order for expungement is directed
7.35specifically to the commissioner of human services.; and
8.1(4) an expunged record of a conviction may be opened for purposes of a background
8.2check required under section 122A.18, subdivision 8, unless the court order for
8.3expungement is directed specifically to the Board of Teaching or the licensing division of
8.4the Minnesota Department of Education.
8.5Upon request by law enforcement, prosecution, or corrections authorities, an agency
8.6or jurisdiction subject to an expungement order shall inform the requester of the existence
8.7of a sealed record and of the right to obtain access to it as provided by this paragraph (c)
8.8An agency or jurisdiction subject to an expungement order shall maintain the record in a
8.9manner that provides access to the record by a criminal justice agency under paragraph
8.10(b), clause (1), but notifies the recipient that the record has been sealed. Upon request by
8.11the commissioner of human services, the Board of Teaching, or the licensing division
8.12of the Minnesota Department of Education, an agency or jurisdiction subject to an
8.13expungement order shall inform the requesting entity of the existence of the sealed record
8.14and of the right to obtain access to the record under paragraph (b), clause (3) or (4). An
8.15expunged record that is opened or exchanged under this subdivision remains subject to the
8.16expungement order in the hands of the person receiving the record.
8.17(d) Notwithstanding section 138.17, a criminal justice agency that receives an
8.18expunged record under paragraph (b), clause (1), shall destroy the record when the
8.19investigation becomes inactive or the record is no longer needed for the purpose for which
8.20it was obtained.
8.21(e) For purposes of this section, a "criminal justice agency" means courts or a
8.22government agency that performs the administration of criminal justice under statutory
8.23authority.

8.24    Sec. 9. Minnesota Statutes 2012, section 609A.03, subdivision 8, is amended to read:
8.25    Subd. 8. Distribution and confirmation of expungement orders. (a) The court
8.26administrator shall send a copy of an expungement order to each agency and jurisdiction
8.27whose records are affected by the terms of the order and send a letter to the petitioner
8.28identifying each agency that received the order.
8.29(b) Each agency and jurisdiction receiving the order must send a letter to the
8.30petitioner confirming that the record has been expunged.
8.31(c) Data on the petitioner in a letter sent under this subdivision are private data
8.32on individuals as defined in section 13.02.

8.33    Sec. 10. [609A.04] REMEDY.
9.1An individual whose record is expunged under this chapter or other law may bring
9.2an action under section 13.08 against a government entity that opens or exchanges the
9.3expunged record in a manner not authorized by law.