Estimated reading time: 7 minutes
Learn more about expungement and Pardon in Minnesota, here.
First, let’s explore “expungement.” Records of an arrest, criminal charge or conviction can:
- reduce access to gainful employment,
- impair opportunity to reach their income-earning potential,
- prevent, impair or destroy professional or occupational licenses,
- create barriers to qualifying for quality rental housing, and
- diminish and destroy a person’s future in other important ways.
Many people facing a criminal charge, learn about expunging their Minnesota criminal records – only after it is too late. So don’t wait until after a guilty plea and sentence.
Best time to prepare for “expungement?” Step one, then step two: To protect your public record, “an ounce of prevention is worth a pound of cure.”
Before pleading guilty: An expungement motion is more difficult (might never happen), after a guilty plea or conviction. Attorney Thomas Gallagher helps his clients get an “expungeable outcome” (a cleaner record) in the first place. And that’s an outcome that favors a future motion to seal records (Minnesota “expungement”).
Expungement vs. Pardon
What is the difference between an expungement and a pardon? Minnesota law provides various strategies for cleaning up your record. Among those remedies are “expungement” and “pardon.” And in many ways, a Pardon is better than a typical Minnesota Court “Expungement” Order.
And restoration of civil rights to firearms is an example. So, a pardon restores full civil rights, including your Second Amendment rights. But a Minnesota “expungement” does not.
A Minnesota Pardon may be available from the Minnesota state pardons board, (not the courts.) A Pardon is legal relief from the executive branch of government. But an “Expungement” Order is a court Order signed by a judge — i.e., the judicial branch.
For federal convictions, a Minnesota state Pardon has no jurisdiction. But some may get a Presidential Pardon, setting aside their federal criminal offenses and convictions. Conversely, a Presidential Pardon has no effect on State criminal prosecutions or convictions.
First, let’s take a closer look at the judicial branch remedy known as expungement. (Though the Minnesota legislature has degraded it to a mere “sealing of records,” not true expungement.)
Minnesota “expungement” laws
We can simplify Minnesota criminal expungement law into four categories:
1. Minn. Statutes §299C.11: No probable cause
Where there was no charge filing with the court, or a court never found probable cause, this statute applies. And it provides for the return of identification (booking) data, and records clean up.
2. Minn. Statutes Chapter 609: Partial sealing
Where (a) juvenile certified as an adult; or (b) certain first-time drug offenders; or (c) certain specified criminal proceedings. See, Minnesota Statutes §609A.02.
3. “Inherent authority of court”
The least attractive type, it’s the only expungement type available for those who do not qualify for a better option. It can be limited to court branch records only.
4. Juvenile Expungement
What about expungement of a juvenile record?
After all, a juvenile adjudication for a Minnesota felony at 16 or older is a public juvenile record. Minnesota Statutes Section 260B.198, Subd. 6, authorizes the court to expunge juvenile “adjudications of delinquency.” And the court has authority to expunge executive branch records; according to a 2012 Minnesota Court of Appeals case.
Minnesota Statutes Section 609A.02, Subd. 2, addresses “juveniles prosecuted as adults.” And it allows a Petition for Expungement following an adult certification and commitment to the Commissioner of Corrections; or if the person was on court probation, after discharge.
But neither statute explicitly addresses a person convicted and sent to prison after Extended Juvenile Jurisdiction (EJJ).
Real Expungement
True expungement: The first type of expungement, under Minnesota Statutes §299C.11 provides for the best remedy. But unfortunately, it is only available to a few. It requires no criminal charge filed, or no court finding of probable cause – a rare thing. But, for those few who do qualify, they may get the return of identification data, and clean up public records.
Definition of expungement: The word “expungement” means to utterly and completely destroy all and every trace of record of a criminal history. This is true in other jurisdictions, other places, other than Minnesota. In Minnesota, lawmakers misleadingly labeled record sealing as “expungement.” But it’s not, as a federal judge quoted in my article observes: Civil Rights, Guns & Marijuana: Why Minnesota Expungement is Broken. “Minnesota expungement” is a severely defective legal remedy, and not really expungement at all.
Most common type
Minnesota Statutes Chapter 609A. “Expungement” of criminal records under this statute is available in cases where:
- juveniles certified as an adult
- certain drug defendants (Minn. Stat. §152.18; some cannabis convictions)
- others where the charge “decision in defendants favor.” Appellate cases define this as “no guilty plea”
- certain cases where there was a conviction, after a specified period
- other felony (not listed) and offenses requiring predatory offender registration do not qualify
See Minnesota Statutes §609A.02. The remedy is only “sealing” the “public” records (not return of records as with §299C.11). And, what the court seals, it can unseal by future court order, in the event of future criminal investigation. But it is partially “non-public” in the meantime.
Limitations on the value of a 609A expungement: The statute has a growing list of exceptions, in Subd. 7a “Limitations of order.” And these include the Minnesota Department of Human Services and Department of Education. So, a person anticipating an occupational license should beware. Consider this before filing; if you want a job working with children, vulnerable adults, law enforcement or teaching.
Court Expungement Forms
You can find helpful forms, videos and instructions about seeking an Expungement Order on the Minnesota Courts’ website. Using them, you may be able to successfully apply and get a Court Expungement Order. This will take considerable effort and attention to detail, to do so correctly.
But even if you end up hiring a lawyer, understanding the process helps. And many have done it pro se.
General observations
When you ask the Minnesota Pardons Board for a Pardon, or a judge for an expungement Order, what are some of the most persuasive factors?
- Nature of the offense of conviction
- Passage of time, without other convictions
- Evidence of rehabilitation, lack of threat to public safety, since offense
People are more willing to forgive a less serious crime than the most serious crimes. And time is the great healer. So, we are more forgiving of sins from long ago.
Can you assure the Board, or the judge that you are not a threat to public safety in the future? Is there evidence you can point to? So, living a productive, law-abiding life since then, can go a long way.
What next?
Is one of the several types of Minnesota expungement Orders right for you? Or, what about an alternative, like:
- pardon, or
- court motion to withdraw guilty plea, vacate conviction, and dismiss charge?
Note: Gallagher Criminal Defense no longer accepts expungement cases.
Cannabis Reform Law 2023
The Minnesota legislature enacted significant changes to Minnesota marijuana and cannabis laws in 2023. These changes reduce barriers to expungement, for people with cannabis criminal histories.
If the past crime would be legal now, the person may be eligible for expungement. The law calls for automatic expungements for non-felonies, placing the burden on the government, not the defendant. Also, it asks a Cannabis Expungement Board to review past felony cannabis cases, and recommend the court “vacate and dismiss” convictions, in some cases. This should restore all civil rights, including gun rights. And the Board can recommend resentencing, in appropriate cases. And so, this is potentially a better remedy than a court can provide a person who petitions the court for a statutory expungement.
Clean Slate Act 2025
Beginning January 2025, Minnesota will begin work on implementing the Clean State Act, Minnesota Statutes Section 609A.015 “AUTOMATIC EXPUNGEMENT OF RECORDS.” Though another example of Minnesota misleadingly labeling partial record sealing as “expungement,” it can benefit people to some degree. Of course, the big news here is that the State will attempt to seal records automatically, without legal procedures burdening the individual. It applies generally to cases resolved in favor of the defendant and certain petty misdemeanors and misdemeanor. Click on the link above to see the details.
More
Removing Drugs from Minnesota “Crimes of Violence” Law
How to Know: Do I Need a Criminal Defense Lawyer?
Types of Minnesota Criminal Cases