EXPUNGEMENT WORKSHEETS

Transcription

1 1 EXPUNGEMENT WORKSHEETS Preparing for a Criminal Record Expungement: A Step-by-Step Guide Before Seeking Legal Help 1. Expungements in Minnesota 2. Collecting Your Criminal Records 3. Collecting Evidence for Your Case 4. Preparing Your Statement 5. Finding Free Legal Help Near You 6. Going It Alone 7. Other Things to Remember The Council on Crime and Justice offers these worksheets as a way to help people seeking expungement of certain criminal records. These worksheets can help service providers who serve those with criminal records and persons with criminal records to request an expungement through Minnesota courts. The Council on Crime and Justice encourages any who petition Minnesota courts for an expungement to seek the assistance of a licensed attorney. These worksheets are meant to prepare those with certain criminal records to receive legal services. These worksheets are not meant to train service providers or others on the law and process of criminal record expungement in Minnesota or any other jurisdiction. These worksheets are not legal advice. These handouts are made possible by the generous donations of The Minneapolis Foundation.

2 2 Expungements in Minnesota Adult Record Expungement: There are two kinds of adult criminal record expungements in Minnesota: Statutory and Inherent Authority Expungement. Statutory Expungement (609A) This expungement covers three kinds of cases: (1) Certain controlled substance offenses; (2) Juveniles prosecuted as adults; and (3) Criminal proceedings not resulting in a conviction or guilty plea by the accused. Inherent Authority Expungement This expungement covers all records not qualifying for statutory expungement. This includes all convictions (except those that fall under the statutory expungement) and any case that involves a guilty plea or Alford plea. The Scope of Adult Record Expungement: With statutory expungements, if the petitioner asks the court to expunge a case falling under one of the three categories, the court can expunge all law enforcement, court, and correctional records related to the incident. The court may expunge records held at local offices and the Bureau of Criminal Apprehension (BCA). The BCA is Minnesota s main repository for criminal records. With inherent authority expungements, the court will probably only expunge the court records related to the original charges. In these cases, the court looks at many factors, including how profoundly the criminal record has affected the petitioner s life and the level of rehabilitation the petitioner can show. More evidence of negative effects and rehabilitation can increase a person s chance of getting more records expunged, but often times in these cases, the court fails to expunge police, correctional, or BCA records. Juvenile Record Expungement: Under Minnesota law, the court can expunge a juvenile record whenever it deems advisable. Minn. Stat. 260B. The juvenile court seeks to rehabilitate delinquent youth, and pursues this goal through different programs and services. In furthering this goal of rehabilitation, a judge will likely expunge a juvenile record if the petitioner can show that he or she has rehabilitated. The Scope of Juvenile Record Expungement: If the juvenile can show personal rehabilitation, the court may expunge all records related to the case: law enforcement, court, correctional, and BCA records. However, the law in this area is unclear. Note: Expungements seal records. Expungements do not destroy or erase records. This means that after an expungement, the expunged records will no longer be accessible by the public at large but will still exist. For example, they will be accessible for future police investigations and court sentencing. The only exception involves arrests that never led to criminal charges. In these cases, the arrestee can go to the police department, and can demand the return of the arrest records. The letter at the end of this packet can help your client get an arrest record back.

3 3 Collecting Your Criminal Records You must collect your criminal records from these locations: MNCIS: At your county s courthouse, locate the MNCIS computer terminal. This computer contains all of your court records in Minnesota. At the computer, choose All MNCIS Sites Case Search in the county dropdown box. Search these records using your name, open each individual file, and print out each case record that appears under your name. If you cannot locate a MNCIS computer terminal, request your court records directly from the court clerk. Do not use online MNCIS access to retrieve your court records. These publicly accessible records are not complete. You must go to the courthouse to get your complete court records. BCA: Send a written records request to the Bureau of Criminal Apprehension including your name, date of birth, and former names (maiden name, former married name). Ask for your adult and juvenile, public and private records by sending your notarized request to the BCA along with a check or money order for $8 and a self-addressed, stamped envelope. Use the form at the end of this packet for greater convenience. Response time for mailed requests is about two weeks. Do not use online BCA access to retrieve your BCA records. These publicly accessible records are not complete and often report erroneous information. You must get your BCA records through the BCA mail-in form. The BCA address you will send you request to is: Minnesota Bureau of Criminal Apprehension Criminal Justice Information Systems CHA 1430 Maryland Ave. E., St. Paul, MN Out-of-State and Federal Records: Get copies of your out-of-state criminal records by contacting the court clerk at the county courthouse where you were charged. Get copies of your federal criminal records by contacting the court clerk at the federal district court where you were charged. FBI background checks:

4 4 Collecting Evidence for Your Case When you ask the court for a criminal record expungement, the court will balance the benefit to you from getting the expungement against the burden on society from not having access to your records any longer. This means that you must bring evidence to court showing two things: 1. The benefit(s) you will receive from a criminal record expungement. 2. The steps you have taken to rehabilitate yourself since the incident. You should bring to court as much of this evidence as you can: 1. Common evidence showing benefit(s) from an expungement: Letters of rejection from employers, landlords, or others Lists of places you applied to work or live at, but were denied Proof of a denied loan (educational or other) Proof of disqualification for employment with vulnerable people Anything else showing a burden caused by your criminal record 2. Common evidence showing rehabilitation: Certificates of treatment for anger management, chemical dependency, or any other program Proof of successful completion of probation Letters of recommendation Proof of volunteer work or community involvement Proof of educational achievement Proof of steady employment Anything else that shows the court you are a good person If the court dismissed all charges against you before finding you guilty, and you are trying to expunge all records related to your arrest, charges, and trial, you should still bring evidence showing personal rehabilitation and that you will receive some benefit from getting an expungement.

5 5 Preparing Your Statement The court will want to know more about you before granting an expungement. Written statements help the court know why you are seeking an expungement, and why the court should grant you an expungement. Keep in mind these guidelines as you write your statement: Talk about what happened: Write about the incident that led to your arrest and trial. Be honest. Talk about why the incident happened: friends, family, environment, drugs, alcohol, or other factors. Own up to what you did. If the court convicted you, do not claim innocence. It s too late to argue that. The court wants to see that you are sorry, and that this will not happen again. Talk about how you ve changed: Write down what you learned from the incident, and specific ways you have changed since the incident. Discuss the treatment programs you have gone through and the ways you have matured since the incident. The court wants a picture of your rehabilitation. Talk about your life goals: Write down what you want to do with your life, and how a criminal history is keeping you or will keep you from achieving these goals. Discuss family, career, and educational goals. The court wants to see how it is helping you by giving you an expungement. Write as much as you can think of: Before meeting with a lawyer, write down everything you can think of. The lawyer will need to know all of the facts before starting your case. If you hold back information, or if you do not explain the information you offer, the lawyer will not have all of the needed information. Not telling your whole story only hurts you in the end. Prepare a final statement with your lawyer: A lawyer can help you organize your writing, and can help you present your statement to the court in the way that the court wants. Be open with your lawyer, and listen to his or her advice. If you disagree with your lawyer, or do not understand your lawyer s advice, ask questions. Understand why your lawyer made the suggestion and how the court will look at the issue.

6 6 Finding Free Legal Help Near You Once you have your criminal records, your evidence, and your written statement, contact an attorney to help you complete the process. Use this list of free legal services in your area: Legal Aid (SMRLS) of Ramsey and Southeast Metro Counties 1000 Alliance Bank Center 55 East 5th Street St. Paul, Minnesota Telephone: (651) (888) (rural clients only) Fax: (651) Website: Council on Crime and Justice (w/ Volunteer Lawyers Network) 822 South 3rd Street, Suite 100 Minneapolis, Minnesota Telephone: Website: Neighborhood Justice Center 500 Laurel Avenue St. Paul, Minnesota Telephone: (651) Fax: (651) Website: Resources for Greater Minnesota County Courthouse Self-Help Resources: Every county courthouse in Minnesota has a self-help desk or kiosk. These self-help areas will be staffed with knowledgeable staff or will have a phone that can connect your client to someone that can help. County Law Libraries: The law librarians can help you get and fill out the paperwork needed for an expungement. They cannot offer legal advice, but are very helpful. Online Resources: (Maintains lists of legal aid services in greater Minnesota) (Only provides services to Northwest Minnesota)

7 7 Going It Alone If you would like to ask the court for a criminal record expungement without the help of an attorney, you will need to take these steps: 1. Get an expungement packet from the self-help resources at your local courthouse, or online at (click on Self-Help Center, Criminal Expungement, and then on Forms -- Criminal Expungement). The packet may cost a small fee (about $5) if you pick up the packet at the courthouse. 2. Fill out an expungement petition (you will find a sample petition in the expungement packet). The petition will go to the county where your case was tried. Attach your statement and evidence to the end of the petition. 3. Call the courthouse in the county where your case was tried, and ask for a court date at least 63 days from the day you call. You can also ask the court clerks questions about the expungement paperwork. They ll help you, but will not offer legal advice. 4. Have a friend mail a copy of your expungement petition (with the court date written on the front), a copy your proposed order, and a copy of your statement and evidence, at least 60 days before your court date, to every government agency that holds a copy of the criminal record you are trying to expunge, including: Police and Sheriff Departments MN Bureau of Criminal Apprehension City and County Attorney Offices State and County Department of Correction Offices Office of Public Safety in the Minnesota Attorney General s Office has more information on this step. Click on Self-Help Center, Criminal Expungement, and then on Forms -- Criminal Expungement. 5. Mail the original petition, proposed order, statement, evidence, and affidavit of service (signed by your friend that mailed the petitions to the government agencies) to the court clerk in the county where your case was tried. You should hear back from them once they get the paperwork, and the clerk will tell you if you made mistakes. 6. Go to court on the date you set up in number 3. Bring your evidence and plan how to talk to the judge about why you are seeking an expungement and why the court should grant it. Write important points on a notecard, and take it with you to court. 7. Keep working with employment services on finding a job and keep working in your community to help others achieve what you have achieved. Expungements can take up to 8 months to finish; keep going. 8. Try again if you are denied, but pay attention to what the judge said about your case the first time. Don t go back to court too soon. You need to do what the judge thought you were lacking the first time before asking again for an expungement.

8 8 Other Things to Remember 1. Predatory Offenders: You may not expunge a record that requires you to register as a predatory offender as long as you are registering as a predatory offender. Speak to an attorney about this kind of case before proceeding, they can be complicated. 2. Traffic, civil, and family cases: The court does not often grant expungements in these kinds of cases. You ll need more evidence of a real benefit. 3. Enhanceables: The court does not often grant expungements in cases involving enhanceable convictions while the enhancement period is running. For example, domestic assaults have an enhancement period of 10 years. Any new domestic assault conviction within that ten year period may lead to a tougher sentence. This makes the court more reluctant to expunge the record in that period. 4. Violent Crimes: These records are harder to expunge than nonviolent offenses. You will need to bring more evidence of rehabilitation and personal benefit. 5. Time since offense: No law requires a person to wait for any set amount of time before filing an expungement petition. However, expungements are an extraordinary remedy. You must show that you have rehabilitated before the court will grant your petition. A good way to show rehabilitation is to show that time has passed since the offense without any new criminal involvement. You should wait longer if the court convicted you of a higher level offense (felony or gross misdemeanor). 6. Probation: A judge may be reluctant to grant your petition if you are still on probation for any offense. It is usually best to wait until you finish. 7. Outstanding Fines: The court might not let you ask for an expungement if you have outstanding court fines on your record. Close these cases first. 8. Outstanding warrants: Do not file for an expungement if you have outstanding warrants. 9. Subsequent crimes: A judge will most likely not grant an expungement if you pick up new cases. Keep clean and show you have truly rehabilitated. Pardons The Board of Pardons may pardon a case where the court may deny an expungement. Few pardons are granted each year, and a pardon does not seal the pardoned record. The Board will generally not consider pardons for violent crimes unless: (1) at least ten years have elapsed since the discharge of the sentence and (2) the applicant was not convicted of any other crime during that time. The Board will generally not consider pardon for non-violent crimes unless: (1) at least five years have elapsed since the discharge of the sentence and (2) the applicant was not convicted of any other crime during that time.

9 9 REQUEST FOR COPY OF CRIMINAL RECORD FROM THE BUREAU OF CRIMINAL APPREHENSION Please mail me copies of both my public and private BCA Criminal Records, both juvenile and adult, to the address listed below: I understand that the BCA needs the following information to release my records: Full Name: Maiden Name or Former Married Name: Aliases: Date of Birth: Signature: Today s Date: I understand that even if I am on public assistance or reside in a shelter the BCA will still not waive the $8.00 cost associated with sending me my criminal record. Enclosed as the payment of the $8.00 fee is: (circle one of the following) a personal check / a money order / cash Notarization: Sworn/affirmed before me this day of, 20. Notary Public \ Deputy Court Administrator Notarize and mail this request along with a Self-Addressed Stamped Envelope to this address: Attn: CJIS Criminal History Access Unit Bureau of Criminal Apprehension 1430 Maryland Avenue East St. Paul, MN 55106

10 10 Date: Bureau of Criminal Apprehension 1430 Maryland Avenue East St. Paul, MN Re: D.O.B. Police Booking # To Whom It May Concern: This is a request under Minn. Stat. Section 299C.11(b) to expunge my arrest record and for return of finger and thumbprints, photographs, distinctive physical mark identification data, information on known aliases and street names, any other identification data, and all copies and duplicates of these items. I was arrested on or about by police officers from in the jurisdiction of County. I am entitled to a return of records and expungement because all resulting criminal proceedings were in my favor, and: the case was dismissed prior to a finding of probable cause or the prosecutor declined to file any charges and there was no grand jury indictment The determination of probable cause for purposes of Minn. Stat. 299C.11(b) is a determination, based on the full record, of whether sufficient probable cause exists to proceed to trial. State v. Bragg, 577 N.W.2d 516 (Minn. App. 1998). This includes where the court found a lack of probable cause for arrest without a warrant under Minn. R. Crim. P and where the court dismissed a charge for lack of probable cause at the omnibus hearing. Additionally, I have not been convicted of a felony or gross misdemeanor in the ten years prior to the arrest at issue. Please expunge my arrest record and send the requested items to me at the address below. Sincerely,