How to Clear Your Criminal Record
What is an Expungement?
An expungement is a sealing of a person’s criminal record. What one must understand is that there are many records that relate to a criminal act and not all can be expunged. When a client comes into my office and asks, “Will it go on my record?’ The answer is, “It depends on which record you are talking about.”
There are five records that are generally affected by a criminal incident. 1- ) Police records, 2- ) BCA, 3- ) County/City Attorney’s Records, 4- ) Court Records and 5- ) Driving Records.
When a person is arrested there is a police report. That is a record with the arrested person’s name and details of the incident on it. That arrest is sent to the Bureau of Criminal Apprehension (BCA) no matter what the outcome of the arrest is. That is the arrested person’s criminal record. Then if the police officer would like the arrested person to be charged with a crime, the officer sends a copy of the police reports to the County Attorney, City Attorney or other prosecuting office. The prosecutor then has an open file on the arrested person and that is another record. If the prosecutor charges the arrested person with a crime, she or he becomes a Defendant. The prosecutor sends a complaint to the Court and then there is a Court Record. The outcome of the case is sent to the BCA. If the crime is a driving offense then there is a driving record too.
In order for the courts to remove all records relating to a criminal offense the case must be resolved “in the Defendant’s favor.” Well, what does that mean? It means that the case was either not charged, dismissed, continued for dismissal or an adjudication of the conviction was stayed. Meaning, it was not “rubber stamped” as a conviction. If the case was resolved in any of the above ways then the statutes of Minnesota require a judge to expunge the records relating to the case.
But, my case wasn’t resolved in that way! Well, there is still hope. An attorney can still file for expungement on a case. It is just not guaranteed by statute that it would be expunged and the court is limited on which records it can affect.
Why is Expungement Important?
Criminal Records are easy and inexpensive to access. Criminal Record checks are also becoming more and more common. In 2005, the Minnesota Supreme Court announced a new rule allowing remote access to criminal conviction records through the Minnesota Judicial Branch website. Minn. R. Pub. Access Rec. Jud. Branch 8 (2008). In addition, two major state entities began posting criminal conviction records online for free: the BCA (Minnesota Bureau of Criminal Apprehension, Minnesota Public Criminal History, https://cch.state.mn.us/ (last visited June 26, 2012)), and the Minnesota Judicial Branch. Minnesota Court Information System (MNCIS) records are available at: Minnesota Trial Court Public Access (MPA) Remote View,http://pa.courts.state.mn.us/default.aspx, (last visited June 26, 2012).
Expungements Are More Important Than Ever In This Economy
Having a criminal record may affect one’s ability to be a viable candidate for a job. Given the risks and the relatively low cost of conducting criminal background checks, human resource practitioners now recommend conducting checks on all hires. “Effect of Employer Access to Criminal History Data on the Labor Market Outcomes of Ex-Offenders and Non-Offenders” by Keith Finlay, April 2008, http://www.nber.org/papers/w13935 (last visited June 26, 2012). If there are two candidates with equal qualifications and the only difference was one candidate has a criminal history then it is common sense that the candidate with the criminal record would not be chosen.
In May 2012, the National unemployment rate was 8.2 % and the Minnesota rate was 5.6%. http://www.deptofnumbers.com/unemployment/minnesota/, (last visited June 26, 2012). With jobs difficult to obtain it is more important than ever to have a competitive edge. Having a criminal record decreases the odds of obtaining employment. Legitimate employment is a strong predictor of criminal desistence, so expanded use of criminal background checks has the potential to increase recidivism and the long-term fiscal costs of criminal punishment. Finlay, Id.
Human resources are not hiring people with criminal records. In fact, someone with a criminal history is half as likely to get hired. Among whites, applicants with criminal records were only half as likely to be called back as equally qualified applicants with no criminal record. black ex- offenders are one-third as likely to be called as black applicants without a criminal record. “The Mark of a Criminal Record” By Devah Pager, http://www.irp.wisc.edu/publications/focus/pdfs/foc232i.pdf , (last visited June 26, 2012). Employers seemed to use the information as a screening mechanism, without probing further into the context or complexities of the applicant’s situation. Employers now routinely check the criminal backgrounds of their applicants and that such employers are indeed responsive to the stigma of a criminal record. “The Effect of Criminal Background Checks on Hiring Ex-Offenders” by Christopher Uggen, CRIMINOLOGY & Public Policy Volume 7 Number 3 Copyright 2008 American Society of Criminology, August 18, 2008, http://www.soc.umn.edu/~uggen/Uggen_cpp_08.pdf, (last visited June 26, 2012).
Employers may also be hesitant to hire ex-convicts because of the risk of negligent hiring suits. Finlay, Id.
Should I Try to Get An Expungement?
The answer is almost always yes! It is always worth consulting with an attorney to see if the case is eligible for expungement. The more time that has passed since the conviction, presentation of evidence that shows the criminal record has affected housing and/or job opportunities, proof of rehabilitation and credible affidavits of character are all things that will help convince a judge to grant an expungement request. The judge will also take into consideration of other criminal activity and the nature of the crime. Certain crimes such as crimes of violence are never expunged.
With the availability of criminal histories at the fingertips of almost everyone and the fact that there is nothing to lose (except maybe some time and fees) for attempting an expungement, it is definitely something to consider on your road to recovery.
Jennifer Casanova is a licensed attorney in Minnesota who specializes in criminal defense.
Casanova Criminal Defense
7455 France Avenue South, Suite 252, Edina, MN 55435 Phone: 612-968-1278
This entry was posted in Legal Corner.