When a person is arrested, charged, and/or convicted of a crime, records of the incident are kept by several different government offices. These include, but are not limited to: courts, law enforcement agencies, prosecutors, the Minnesota Bureau of Criminal Apprehension (“BCA”), and other government agencies like the Department of Human Services. Expungement is the process in which a person can appear in court to request that all or some of these records be sealed to prevent the incident from appearing on a background check for employment, housing, professional license, etc.
There are two ways a petitioner (a person requesting an expungement) may be successful in getting an expungement in Minnesota. First, Minnesota Statute 609A.02, subdivision 3 allows the court to expunge a court record, upon request, if the case was resolved in the petitioner’s favor. This means the person asking for the expungement never admitted guilt before the court. This is often a very difficult standard to meet. Even if the court refuses to accept your guilty plea or imposes a stay of imposition or adjudication and the charge is later dismissed, if you ever admitted guilt before the court, you are not entitled to this type of expungement.
If the case was resolved in the petitioner’s favor, the court will then determine if the public’s interest in having knowledge of the incident outweighs the disadvantages the petitioner may face in having the incident available to the public. Only after you clear both of these hurdles are you entitled to have all the records on the incident expunged.
The other basis for expungement is the court’s inherent power, which means even if the petitioner pled guilty to a crime or the court case was not resolved in the petitioner’s favor, you may be able to successfully request an expungement. When asking for an expungement based upon the court’s inherent power, the court will consider whether the retention of these records will infringe upon the petitioner’s constitutional rights. Because there is no constitutional right to be employed or to obtain housing, this only occurs in very rare cases. If constitutional rights are not involved, the court will apply a balancing test. This means it will weigh the petitioner’s interest in the expungement against the public’s interest in keeping the records public and any possible burden on the court. To prevail in this balancing test, you will need to show the court that you have rehabilitated yourself and you are suffering unfair consequences due to the incident appearing on your record, such as you are being denied work, housing or a professional license.
If you are successful in showing the court that an expungement should be granted under the court’s inherent powers, the court is limited to sealing only the court records regarding the incident. Therefore, if records exist in other government agencies—which is very likely if you were arrested and charged with a crime—these records will still be accessible by the general public. Thus, a background check will likely still disclose these cases.
If you are considering a request for expungement, think about which expungement option may be available to you and if it’s worth it. The process can be lengthy and quite expensive.
As always, if you have further questions about this issue, or would like some clarification, don’t hesitate to call us!
Attorney Lisa N. Nelson