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Minnesota lawmakers are considering H.F. No. 2723, which promises to open the option of expunging some criminal records to a whole new class of defendants. The current Minnesota Expungement Statute only allows expungement of certain drug offenses, some juvenile cases that were tried in adult court, and cases in which “all proceedings” were concluded in favor of a defendant. The new bill would allow people who successfully complete alternate deals, such as diversionary programs or deferred adjudication, to later expunge their records after a year.

Not all people who completed these alternate programs would be eligible to expunge their Minnesota criminal record. First, the option proposed by H.F. No. 2723 is not open to people who committed felony-level crimes of violence. Second, people must not have gotten a second charge for a year after completing their programs. However, there is nothing in the bill that would prevent someone who was arrested, but not charged, within a year after completing a program from expunging his or her record.

The prosecutor’s office has several opportunities to deny this relief for otherwise eligible defendants. First, the prosecution must agree to seal the records at the time the defendant petitions the court. Second, the prosecutor must have agreed to the terms of the alternate program at the time of sentencing. Under the proposed amendment, if the prosecution objects at either of these two times, the petitioner/defendant may not seal his or her records.

The proposed bill also adds a new section to Minnesota law, Section 609A.025, which seems geared towards allowing the prosecution to include an agreement to seal records related to a diversion program or stay of adjudication as incentives for a plea agreement. This section allows for the expungement of criminal records without the filing of a petition for persons who complete a diversion program or receive a stay of adjudication, provided a number of requirements are met. First, the prosecutor must agree to seal the records without the filing of a petition. Second, the court must determine that the interests of the public and public safety in keeping the record do not outweigh the disadvantages to the petitioner of having the record active. The prosecutor must also make a good-faith effort to inform any identifiable victims of the intended agreement and provide them with the opportunity to object. This agreement may occur before or after the charges are dismissed.

Additional language is included in the bill that makes otherwise expunged records accessible, but nothing releases the expunged records to the public at large. Instead, the provisions all address situations of future law enforcement investigation or prosecution, keeping in line with such provisions in expungement statutes of other states. For example, probation officers or prosecutors may open expunged records without a court order.

Written by Mathew Higbee, Esq

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