What Crimes Can’t be Expunged in Minnesota?

Some offenses, including any crime that requires registration as a sex offender, are not eligible for expungement. For non-enumerated felonies, it may be possible only to seek expungement using the Court’s inherent authority, which limits the benefits that can be achieved through expungement.

Waiting Periods

For statutory expungement, there is a waiting period before a criminal offense can be expunged. The waiting period begins after completion of the imposed sentence and probation. Also, to be eligible for a statutory expungement, you must not receive any new convictions during the waiting period. The specific period of time depends on the severity of the offense:

• Acquittal/Dismissal – no waiting period
• Continuance for dismissal – no waiting period, assuming there was no factual admission of guilt
• Diversion or Stay of Adjudication – one-year waiting period
• Misdemeanor – two-year waiting period
• Gross misdemeanor – four-year waiting period
• Felony – five-year waiting period

If the defendant received a Stay of Imposition for a felony or a gross misdemeanor, the conviction is still treated as a felony or gross misdemeanor for expungement purposes.

There are no waiting periods for inherent authority expungement.

Factors the Court Considers

An expungement is only granted in extraordinary circumstances. For statutory expungement, the court considers the following 12 factors when deciding whether to grant an expungement:

1. the nature and severity of the underlying crime, the record of which would be sealed;
2. the risk, if any, the petitioner poses to individuals or society;
3. the length of time since the crime occurred;
4. the steps taken by the petitioner toward rehabilitation following the crime;
5. aggravating or mitigating factors relating to the underlying crime, including the petitioner’s level of participation and context and circumstances of the underlying crime;
6. the reasons for the expungement, including the petitioner’s attempts to obtain employment, housing, or other necessities;
7. the petitioner’s criminal record;
8. the petitioner’s record of employment and community involvement;
9. the recommendations of interested law enforcement, prosecutorial, and corrections officials;
10. the recommendations of victims or whether victims of the underlying crime were minors;
11. the amount, if any, of restitution outstanding, past efforts made by the petitioner toward payment, and the measures in place to help ensure completion of restitution payment after expungement of the record if granted; and
12. other factors deemed relevant by the court.

The Criminal Expungement Process in Minnesota

Expungement is a long process. It takes a bare minimum of six months, but typically takes closer to eight months to a year to complete the entire process. In that time, you can expect to meet with your attorney to go over the paperwork they will file on your behalf. The expungement petition must be filed with the court as well as several agencies and there are specific notice requirements that must be adhered to prior to the actual hearing in front of a judge. After the hearing, the judge will review the petition before issuing an order. Following the order, there is an appeal period before the order is final.

The expungement process can be sped up significantly if we can get the agreement of the prosecuting attorney. This can be difficult to obtain, but this option is definitely worth exploring in some cases.

Inherent Authority Expungement

Generally, inherent authority expungement is limited to the Court’s own records. This means that the Court usually can’t expunge the records held by the police, prosecutors, the Bureau of Criminal Apprehension, or other government agencies. However, a court may issue an inherent authority expungement without regard to the statutory waiting periods and without analyzing the 12 factors listed above.

Full expungement under inherent authority can be achieved if it can be proven that the underlying conviction involved a constitutional violation or if expungement is “necessary to the judicial function,” meaning the expungement is necessary for justice and fairness. An example of this would be where the state retaining someone’s criminal records would violate their constitutional rights.

In comparison, the standard for a statutory expungement is that, so long as all the conditions outlined above are met, the court shall grant an expungement unless the state can provide clear and convincing evidence that the interests of the public safety outweigh the disadvantages of the petitioner of not sealing the records.

Call a Minnesota Expungement Lawyer Today!

As you can see, expungement is an arduous process and you don’t need to do it alone. Contact the experienced Minneapolis and Saint Paul expungement attorneys at Sieben Edmunds Miller today at (651) 323-2464 to begin your expungement today.