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Can a Hutchinson, MN Criminal Defense Lawyer Expunge My Record If I Don’t Meet the Statuatory Requirements?

by | Nov 4, 2021 | Criminal Defense, Firm News

Fifteen years ago, the answer to this question was a resounding “no.” But then, in 2008, the Minnesota Supreme Court decided State v. SLH. This decision introduced the concept of inherent authority expunction. There are basically two big differences between statutory expungement under the Minnesota Statutes and inherent authority expungements.

Statutory expungement is a right. To assert a right, you simply have to ask for it. But inherent authority expungement is a privilege. Unless the defendant gives the judge a good reason for expungement, the judge probably will not do it. Additionally, and perhaps more importantly, statutory expungement wipes out all judicial and law enforcement records. Inherent authority expungement only affects judicial records, at least in most cases.

An experienced Hutchinson, MN criminal defense lawyer can expunge your records if it is at all possible, and also maximize that expungement.

What Are the Requirements for Statutory Expungement in Hutchinson, MN?

Not just anyone can have their record expunged in Minnesota. The law puts in place statutory grounds for statutory expungement. In other words, you must meet certain requirements to have your criminal record expunged.

We’re talking about those requirements next.

A Not Guilty Verdict

You qualify for expungement if a court doesn’t convict you of the crime you’re charged with and issues you a not guilty verdict instead. Also, you qualify for expungement if you never submitted a guilty plea. For example, this may have occurred if a court dismissed your case.

If you received a guilty verdict or have submitted a guilty plea, your conviction will not be eligible for statutory expungement.

You Committed a Petty Misdemeanor With No Subsequent Offenses

Petty misdemeanors may not mean jail time, but they do stay on your record. Employers and anyone else who runs a background check on you will see them on your record.

Luckily, you can get a petty misdemeanor conviction expunged from your record in certain cases. The following crimes are petty misdemeanors in Minnesota:

  • Traffic citations
  • Possession of small amounts of marijuana
  • Possession of drug paraphernalia

You can’t have these petty misdemeanors expunged if you receive a subsequent conviction within the next two years.

You Committed a Gross Misdemeanor With No Subsequent Offenses

Gross misdemeanors are more serious than petty misdemeanors in Minnesota. A gross misdemeanor conviction comes with potential jail time, thousands of dollars in fines, or both. Here are some common Hutchinson, MN gross misdemeanor crimes:

  • A DWI with a blood alcohol content of 2.0 or over
  • A second DWI conviction within 10 years of the first
  • Refusing a sobriety test during a pullover
  • Gross misdemeanor theft, which is theft of property worth $500–$1,000

Like petty misdemeanors, you must go a period without a subsequent conviction. In this case, you must go four years without another offense to qualify for statutory expungement.

You Committed a Qualifying Felony With No Subsequent Convictions

Felonies are the most serious offenses in Minnesota. They come with fines and/or prison time. Sometimes, felonies even come with mandatory minimum prison sentences.

There is good news, though. Some felonies qualify for statutory expungement in Minnesota, including the following:

  • Fifth-degree drug possession and sale felonies
  • Criminal vehicular operation (CVO) that results in great bodily harm to another party
  • Theft of property worth less than $5,000
  • Criminal property damage
  • Forgery
  • Some financial fraud felonies

To get these felonies expunged, you can’t receive a subsequent conviction. You must stay crime-free for at least five years to qualify.

You Received a Qualifying Juvenile Conviction

In some cases, offenders with a juvenile conviction can qualify for statutory expungement. However, this is only the case if you received the conviction as a juvenile and are now facing trial as an adult.

You Completed a Diversion Program

When you receive certain drug possession charges in Minnesota, a court could issue you to complete a diversion program. Completing the diversion program qualifies you for statutory expungement.

You Received Deferred Adjudication

In Minnesota, many people receive deferred adjudication for their crimes. A stay of adjudication is similar to receiving probation for an offense.

The court will issue “terms of the stay,” which, if completed, means you won’t have a conviction on your record. The same is true if you received an adjudicated delinquency as a minor.

Once you complete the terms of the stay, you can qualify for expungement. However, you must first go one year from the date you completed the terms of the stay without committing a second offense.

Have You Exhausted Other Options?

Inherent authority expungement is a last resort. But many people entertain this option before they have gone through all their statutory options. Significantly, very few people try to obtain an executive pardon, even though the process is easier than they think.

You do not need to make a big financial contribution to buy a pardon. Actually, that may be one of the worst things you can do. No governor wants to be accused of favoritism.

Instead, a Hutchinson, MN criminal defense lawyer simply needs to know how to ask. Every situation is different, but here are some general rules:

  • Know Where to Go: A pardon application addressed to the governor will go straight into the trash, and an application addressed to a junior assistant will never see the light of day either. A successful pardon application begins with knocking on the right door, and an experienced Hutchinson, MN criminal defense lawyer knows where to knock.
  • Admit Responsibility: Begin and end your application with a complete and unqualified admission of guilt. Your friends did not entice you and the devil did not make you do it.
  • Explain Extenuating Circumstances: The governor was not there and does not have the trial transcript. If appropriate, the prior obstacles narrative usually works well. For example, perhaps you have overcome a substance abuse problem.
  • Praise the System: If you served time in jail or prison, you had lots of time to think. If you were placed on probation, the court-ordered classes struck a chord with you.
  • Ask For What You Need: Unabashedly ask for a complete pardon. One of the fundamental rules of criminal law is that you never get anything unless you ask.

Pardons are even easier to obtain if you are no longer under court supervision. At that point, a gubernatorial pardon is basically just a rather meaningless gesture. It only has significance if the defendant uses the pardon to obtain statutory expungement.

What Is Inherent Authority?

Since the judge has absolute control over judicial records, it stands to reason that the judge should have the authority to purge these records in certain situations. The S.L.H. court offered practically no guidance in this area. The court simply stated that, under “appropriate circumstances,” judges could use their inherent authority to expunge judicial records.

That lack of guidance is actually a good thing. Appeals courts usually review lower court decisions like these on an abuse-of-discretion basis. With such a broad mandate from the Supreme Court, it is almost impossible for judges to abuse their discretion in these cases.

In other words, the court has almost absolute authority to purge judicial records. A Hutchinson, MN criminal defense lawyer just needs to give the judge a good reason to do so.

Who Can Get an Inherent Authority Expungement in Hutchinson, MN?

If you were convicted of a crime in Minnesota and that crime is on your record, you can qualify for an inherent authority expungement. But if you have statutory expungement as an option, you should seek one. As we’ve discussed, inherent authority expungement should be your Plan B.

Why? Inherent authority expungements aren’t true expungements. In other words, the judge won’t wipe your conviction off your record; inherent authority expungement only seals your records.

Also, keep in mind that just because you seek an inherent authority expungement doesn’t mean a judge will grant you one. Judges take multiple factors into account when making his or her decision.

For example, judges tend to weigh heavily your possibility of re-offense. In other words, if the judge thinks you’re likely to commit another crime, he or she will most likely not grant you an inherent authority expungement.

Why Do You Need Expungement?

In statutory proceedings, this question is relevant but not really controlling. The McLeod County judge just needs to hear a legitimate answer.

But in inherent authority expunction cases, this answer may mean everything. Generally, the defendant must offer a specific reason, such as:

  • Inability to pursue a certain professional occupation that the defendant is otherwise qualified to pursue,
  • Difficulty in finding a place to live (i.e. I tried to obtain a mortgage from this bank or rent from this company but my criminal conviction derailed my application), or
  • Inability to find a job that pays enough to support a family.

If you can articulate this reason for the judge, the judge is quite likely to approve your application, especially if the conviction is at least ten or fifteen years old.

Can a Hutchinson, MN Criminal Defense Lawyer Expand Inherent Authority?

In principle, inherent authority expunctions are limited to judicial records. However, the Supreme Court has yet to directly rule on this issue. Therefore, in a few cases, there may be a workaround.

For example, a dismissal may expand inherent authority to executive records, even if the offense is on the prohibited list. If the court dismisses the case, most defendants reasonably believe that they will suffer no ill effects from the criminal proceedings.

Certain juvenile cases may fall into this area as well. Additionally, if the defendant was discharged at least fifteen years ago and the defendant has taken a number of self-improvement steps, expansion may be available.

Reach Out to Dedicated Attorneys at Carlson & Carlson

A Minnesota criminal attorney can help you get a statutory expungement if you meet qualifying conditions. If you don’t meet these conditions, your lawyer may still be able to seek an inherent authority expungement. Though inherent authority expungement will not eliminate your conviction, it will seal your conviction from public record.

An attorney’s job does not end when the judge’s gavel falls, because there may still be remedies available. For a free consultation with an experienced Hutchinson, MN criminal defense lawyer, contact Carlson & Jones, P.A. We routinely handle matters in McLeod County and nearby jurisdictions.

Original article published on May 23, 2019 and updated on November 4, 2021.