Current legislative proposals to change expungement law and practice

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13. Current legislative proposals to change expungement law and practice (2005-2006 session) Annotation Expungement eligibility expanded to include certain criminal proceedings not resolved in petitioner's favor. Bill language Section 1. Minnesota Statutes 2004, section 609A.02, is amended by adding a subdivision to read: Subd. 3a. [CERTAIN CRIMINAL PROCEEDINGS NOT RESOLVED IN PETITIONER'S FAVOR.] A petition may be filed under section 609A.03 to seal all records relating to an arrest, indictment or information, trial, or verdict if the actions or proceedings were not resolved in favor of the petitioner. Sec. 2. [REPEALER.] Minnesota Statutes 2004, section 609A.02, subdivision 2, is repealed. Presumptive stayed sentence imposed for first-time fourth- and fifth-degree controlled substance possessors, expungement of records authorized, terms of imprisonment modified, and money appropriated Section 1. [152.0255] [STAYED SENTENCES FOR FIRST-TIME CONTROLLED SUBSTANCE POSSESSORS.] Subdivision 1. [PRESUMPTIVE STAYED SENTENCE, FIRST-TIME FOURTH- AND FIFTHDEGREE CONTROLLED SUBSTANCE POSSESSORS.] (a) Notwithstanding any contrary provision of the sentencing guidelines or any other law, the court shall presume that an offender convicted of violating section 152.024, subdivision 2, or 152.025, subdivision 2, be sentenced to a stayed sentence if the offender has not previously been convicted or adjudicated delinquent for a violation of this chapter, or an offense from another jurisdiction similar to an offense under this chapter. The court may impose appropriate terms and conditions on the offender. (b) When a court stays the sentence of an offender described in paragraph (a), it shall order the offender to successfully complete a chemical dependency treatment program designated by the court. The court shall select a program that is appropriate given the offender's chemical dependency needs. When possible, the program must be tailored specifically to the offender's specific addiction, have an inpatient and outpatient component, including aftercare, and be of a sufficient duration to adequately address the offender's chemical dependency issues. 1 HF1609 Lesch SF1138 Ortman As Introduced Source HF1715 Ellison As Introduced Annotation Bill language (c) A sentence under this subdivision is not a departure under the sentencing guidelines. Subd. 2. [STAYED SENTENCES AUTHORIZED; FIRST-TIME FIRST-, SECOND-, AND THIRDDEGREE CONTROLLED SUBSTANCE POSSESSORS.] (a) Notwithstanding any contrary provision of the sentencing guidelines or any other law, the court may stay the execution of sentence for an offender convicted of violating section 152.021, subdivision 2; 152.022, subdivision 2; or 152.023, subdivision 2, if the offender has not previously been convicted or adjudicated delinquent for a violation of this chapter, or an offense from another jurisdiction similar to an offense under this chapter. The court may impose appropriate terms and conditions on the offender. (b) If the court stays an offender's sentence under paragraph (a), it shall order the offender to successfully complete a chemical dependency treatment program designated by the court. The court shall select a program that is appropriate given the offender's chemical dependency needs. When possible, the program must be tailored specifically to the offender's specific addiction, have an inpatient and outpatient component, including aftercare, and be of a sufficient duration to adequately address the offender's chemical dependency issues. (c) A sentence under this subdivision is not a departure under the sentencing guidelines. Subd. 3.[COSTS.] When a court sentences an offender under this section, it may require the offender to pay the costs of the treatment program as well as other costs authorized by law. Subd. 4. [PRESENTENCE INVESTIGATION.] The court shall consider the results of the presentence investigation under section 609.115, including the chemical use assessment, and any other relevant information before sentencing an offender described in this section. Subd. 5. [EXCEPTION; PRIOR VIOLENT CRIMES OR POSSESSION OF DANGEROUS WEAPON.] Except as otherwise provided in this section, this section does not apply to an offender who has previously been convicted or adjudicated 2 Source Annotation Bill language delinquent for a violent crime as defined in section 609.1095 or who possessed a dangerous weapon at the time of arrest. [EFFECTIVE DATE.] This section is effective August 1, 2005, and applies to offenders sentenced on or after that date. Sec. 2. [244.045] [SUPERVISED RELEASE OF CONTROLLED SUBSTANCE OFFENDERS.] (a) Notwithstanding any contrary provision of the sentencing guidelines or any other law, but subject to paragraph (c), the commissioner of corrections shall place an offender committed to the commissioner's custody for a violation of section 152.022, 152.023, 152.024, or 152.025 on supervised release after the offender has served one-half of the offender's executed sentence if: (1) the original length of the offender's executed sentence was 18 months or longer; and (2) while in prison for the offense, the offender successfully completed a chemical dependency treatment program of at least six months in duration. (b) Successful completion of the program described in paragraph (a), clause (2), is to be determined by the program director. (c) No offender who violates a disciplinary rule or refuses to participate in a rehabilitative program as required under section 244.03 shall be placed on supervised release until the offender has served the disciplinary confinement period for that disciplinary sanction or until the offender is discharged or released from punitive segregation confinement, whichever is later. The imposition of a disciplinary confinement period shall be considered to be a disciplinary sanction imposed upon an offender, and the procedure for imposing the disciplinary confinement period and the rights of the offender in the procedure shall be those in effect for the imposition of other disciplinary sanctions at each state correctional institution. [EFFECTIVE DATE.] This section is effective August 1, 2005, and applies to persons incarcerated or sentenced on or after that date. Sec. 3. Minnesota Statutes 2004, section 609A.02, is amended by adding a subdivision to read: 3 Source Annotation Bill language Subd. 1a. [OTHER CONTROLLED SUBSTANCE OFFENSES; CONVICTIONS.] A petition may be filed under section 609A.03 to seal all records relating to an arrest, indictment or information, trial, or verdict for a violation of section 152.021, subdivision 2; 152.022, subdivision 2; 152.023, subdivision 2; 152.024, subdivision 2; or 152.025, subdivision 2, if the actions or proceedings were not resolved in favor of the petitioner, and: (1) the petitioner received a stayed sentence under section 152.0255; (2) the petitioner successfully completed and fully paid for a chemical dependency treatment program as described in section 152.0255, subdivision 1, paragraph (b), or subdivision 2, paragraph (b), and has not violated any other terms or conditions imposed by the sentencing court; (3) at least a year has elapsed since the petitioner completed the chemical dependency treatment program and during that time the petitioner has not illegally used or possessed a controlled substance or violated any law; and (4) the petitioner has fully paid all of the prosecution and other costs imposed on the petitioner by the sentencing court. If the court determines that the petitioner is indigent, the court may allow the petitioner to perform an amount of community service having a monetary value of up to 50 percent of the costs described in clauses (2) and (4). The petitioner is responsible for paying the remaining costs owed before obtaining an expungement. [EFFECTIVE DATE.] This section is effective August 1, 2005. Sec. 4. Minnesota Statutes 2004, section 609A.03, subdivision 5, is amended to read: Subd. 5. [NATURE OF REMEDY; STANDARD; FIREARMS RESTRICTION.] (a) Except as otherwise provided by paragraph paragraphs (b) and (c), expungement of a criminal record is an extraordinary remedy to be granted only upon clear and convincing evidence that it would yield a benefit to the petitioner commensurate with the disadvantages to the public and public safety of: 4 Source Annotation Bill language (1) sealing the record; and (2) burdening the court and public authorities to issue, enforce, and monitor an expungement order. (b) Except as otherwise provided by this paragraph, if the petitioner is petitioning for the sealing of a criminal record under section 609A.02, subdivision 3, the court shall grant the petition to seal the record unless the agency or jurisdiction whose records would be affected establishes by clear and convincing evidence that the interests of the public and public safety outweigh the disadvantages to the petitioner of not sealing the record. (c) If the petitioner is petitioning for the sealing of a criminal record under section 609A.02, subdivision 1a, the court shall grant the petition if the petitioner establishes by a preponderance of the evidence that: (1) the petitioner meets the criteria described in section 609A.02, subdivision 1a; and (2) it would yield a benefit to the petitioner commensurate with the disadvantages to the public and public safety of: (i) sealing the record; and (ii) burdening the court and public authorities to issue, enforce, and monitor an expungement order. (d) If the court issues an expungement order it may require that the criminal record be sealed, the existence of the record not be revealed, and the record not be opened except as required under subdivision 7. Records must not be destroyed or returned to the subject of the record. [EFFECTIVE DATE.] This section is effective August 1, 2005. Sec. 5. Minnesota Statutes 2004, section 609A.03, is amended by adding a subdivision to read: Subd. 6a. [CERTAIN CONTROLLED SUBSTANCE OFFENDERS; DISCHARGE FROM PROBATION.] If the court orders the sealing of the criminal record of a petitioner under subdivision 5, paragraph (c), it shall discharge the petitioner from probation for the offense. [EFFECTIVE DATE.] This section is effective August 1, 2005. 5 Source Annotation Bill language Sec. 6. [CONTROLLED SUBSTANCE OFFENDERS CURRENTLY IN PRISON; SUPERVISED RELEASE.] An offender meeting the criteria described in Minnesota Statutes, section 244.045, who completed a chemical dependency treatment program before August 1, 2005, while in prison for that offense, shall be placed on supervised release by the commissioner of corrections within a reasonable time after presenting the program director's certification to the commissioner showing that the offender successfully completed the program. [EFFECTIVE DATE.] This section is effective the day following final enactment. Source Data reclassification for arrests not prosecuted and charges resolved in favor Sec. 12. [609B.01] RETENTION OF NONCONVICTION AND FAVORABLE RESOLUTION DATA. This chapter provides for the nonpublic retention of data relating to (1) arrests that do not lead to prosecution and (2) charged offenses resolved in favor of the subject of the data. Nothing in this chapter authorizes the destruction or sealing of data. The data shall remain accessible to law enforcement and may be made public for any of the purposes set forth in section 13.82, subdivision 15, or pursuant to court order. Sec. 13. [609B.02] ARREST DATA NOT LEADING TO PROSECUTION. Subdivision 1. Reclassification of arrest data as private arrest data. On the expiration of 180 days from the date of an arrest, arrest data pertaining to the person arrested shall be after that classified as private arrest data as defined in subdivision 2 unless the arrest has lead to the prosecution of the subject of the data. Subd. 2. Definition of private arrest data. Data reclassified as private arrest data pursuant to subdivision 1 shall be governed by the definition of private data on individuals under section 13.02, subdivision 12, except that the data shall not be released or made accessible to the public unless done HF3345 Meslow As Introduced Arrest data not leading to prosecution HF3345 Meslow As Introduced 6 Annotation Bill language so by the arresting law enforcement agency for a purpose set forth in section 13.82, subdivision 15, or pursuant to a court order. Subd. 3. Responsibility for reclassification. It shall be the responsibility of the arresting law enforcement agency to reclassify the arrest data in the agency's possession as private arrest data and to notify all other criminal justice agencies enumerated in section 13.02, subdivision 3a, to which it has transmitted the data, including the Bureau of Criminal Apprehension, that the arrest data has been reclassified as private arrest data. Any agency receiving the notification shall reclassify the arrest data in its possession regarding the subject of the notification, if any, as private arrest data. Source Arrest data not leading to conviction Section 1. Minnesota Statutes 2004, section 13.871, is amended by adding a subdivision to read: Subd. 10. Arrest data not leading to conviction. Arrest data relating to arrests that do not lead to prosecution of the subject is governed by section 609B.02. Sec. 14. [609B.03] DATA ON OFFENSES RESOLVED IN FAVOR OF INDIVIDUAL. Subdivision 1. Reclassification of data resolved in favor of individual. Upon the favorable resolution of a criminal action, as defined in subdivision 4, all criminal justice agency records pertaining to the action shall after that be classified as private data on actions favorably resolved, as defined in subdivision 2, and all judicial records shall after that be made inaccessible to the public, unless the prosecuting attorney upon motion with not less than five days' notice to the person or the person's attorney demonstrates to the satisfaction of the court that the interests of justice require otherwise, or the court on its own motion with not less than five days' notice to the person or the person's attorney determines that the interests of justice require otherwise and states the reasons for the determination on the record. Subd. 2. Definition of data on actions favorably resolved. Data reclassified as private data pursuant to subdivision 1 shall be governed by the definition of private data on individuals under section 13.02, subdivision 12, 7 HF3345 Meslow As Introduced Data on offenses resolved in favor HF3345 Meslow As Introduced Annotation Bill language except that the data shall not be released or made accessible to the public unless done so by the prosecuting authority for a purpose set forth in section 13.82, subdivision 15, or pursuant to a court order. Subd. 3. Responsibility of reclassification. Upon the favorable resolution of an action as defined in subdivision 4, it is the responsibility of the clerk of court to make the judicial records pertaining to the action inaccessible to the public and to notify the superintendent of the Bureau of Criminal Apprehension, the Department of Corrections, the prosecuting authority, and the heads of all appropriate law enforcement agencies, and, unless the court has directed otherwise, that the criminal justice agency records related to the action shall be classified as private data. Subd. 4. Resolutions resulting in reclassification. For purposes of subdivision 1, a criminal action against a person is resolved in favor of that person if: (1) charges against a person were dismissed; (2) the person was acquitted; (3) charges against the person were dismissed pursuant to a continuance for dismissal; (4) charges against the person were dismissed upon successful completion of a pretrial diversion program or pursuant to section 152.18; (5) one year has passed since the person plead guilty to a petty misdemeanor; (6) two years have passed since a stay of adjudication has been dismissed; or (7) three years have passed since a stay of imposition was vacated and dismissed. Subd. 5. Intervening charges. For purposes of subdivision 4, clauses (5) to (7), a criminal action against a person shall not be reclassified as private data on actions favorably resolved if new criminal charges are brought against that person during the stated time period. Subd. 6. Motion for reclassification. A person whose criminal action was favorably resolved as set forth in subdivision 4, but prior to the effective date of sections 609B.01 to 609B.03, may upon motion with not less than five days' notice to the appropriate Source 8 Annotation Bill language prosecuting authority apply for an order to reclassify the criminal justice agency records relating to the action as private data. Sec. 2. Minnesota Statutes 2004, section 13.871, is amended by adding a subdivision to read: Subd. 11. Low-level offense. Data relating to lowlevel offenses and in favor of resolutions as defined in section 609B.03, subdivision 4, is governed by section 609B.03. Source HF3345 Meslow As Introduced Modify deferred prosecution for certain first time drug offenders Sec. 3. Minnesota Statutes 2004, section 152.18, subdivision 1, is amended to read: Subdivision 1. Deferring prosecution for certain first time drug offenders. If any person who has not previously participated in or completed a diversion program authorized under section 401.065 or who has not previously been placed on probation without a judgment of guilty and thereafter been discharged from probation under this section is found guilty of a violation of section 152.024, subdivision 2, 152.025, subdivision 2, or 152.027, subdivision 2, 3, or 4, for possession of a controlled substance, after trial or upon a plea of guilty, and the court determines that the violation does not qualify as a subsequent controlled substance conviction under section 152.01, subdivision 16a, the court may shall, without entering a judgment of guilty and with the consent of the person, either (1) defer further proceedings and place the person on probation upon such reasonable conditions as it may require and for a period, not to exceed the maximum sentence provided for the violation. The court or (2) enter a written finding that states substantial and compelling reasons why a deferral is inappropriate. If the court grants a deferral, it may give the person the opportunity to attend and participate in an appropriate program of education regarding the nature and effects of alcohol and drug abuse as a stipulation of probation. Upon violation of a condition of the probation, the court may enter an adjudication of guilt and proceed as otherwise provided. The court may, in its discretion, dismiss the proceedings against the person and discharge the person from probation before the expiration of the 9 HF3345 Meslow As Introduced Annotation Bill language maximum period prescribed for the person's probation. If during the period of probation the person does not violate any of the conditions of the probation, then upon expiration of the period the court shall discharge the person and dismiss the proceedings against that person. Discharge and dismissal under this subdivision shall be without court adjudication of guilt, but a not public record of it shall be retained by the Bureau of Criminal Apprehension for the purpose of use by the courts in determining the merits of subsequent proceedings against the person. The not public record may also be opened only upon court order for purposes of a criminal investigation, prosecution, or sentencing. Upon request by law enforcement, prosecution, or corrections authorities, the bureau shall notify the requesting party of the existence of the not public record and the right to seek a court order to open it pursuant to this section. The court shall forward a record of any discharge and dismissal under this subdivision to the bureau which shall make and maintain the not public record of it as provided under this subdivision. The discharge or dismissal shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime or for any other purpose. For purposes of this subdivision, "not public" has the meaning given in section 13.02, subdivision 8a. EFFECTIVE DATE. This section is effective July 1, 2006. Source Change thresholds for certain property crimes Sec. 8. Minnesota Statutes 2004, section 609.52, subdivision 3, is amended to read: Subd. 3. Sentence. Whoever commits theft may be sentenced as follows: (1) to imprisonment for not more than 20 years or to payment of a fine of not more than $100,000, or both, if the property is a firearm, or the value of the property or services stolen is more than $35,000 and the conviction is for a violation of subdivision 2, clause (3), (4), (15), or (16); or (2) to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both, if the value of the property or services stolen exceeds $2,500 $5,000, or if the property stolen was an article 10 HF3345 Meslow As Introduced -Theft Annotation Bill language representing a trade secret, an explosive or incendiary device, or a controlled substance listed in schedule I or II pursuant to section 152.02 with the exception of marijuana; or (3) to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if: (a) the value of the property or services stolen is more than $500 $1,000 but not more than $2,500 $5,000; or (b) the property stolen was a controlled substance listed in schedule III, IV, or V pursuant to section 152.02; or (c) the value of the property or services stolen is more than $250 $500 but not more than $500 $1,000 and the person has been convicted within the preceding five years for an offense under this section, section 256.98; 268.182; 609.24; 609.245; 609.53; 609.582, subdivision 1, 2, or 3; 609.625; 609.63; 609.631; or 609.821, or a statute from another state, the United States, or a foreign jurisdiction, in conformity with any of those sections, and the person received a felony or gross misdemeanor sentence for the offense, or a sentence that was stayed under section 609.135 if the offense to which a plea was entered would allow imposition of a felony or gross misdemeanor sentence; or (d) the value of the property or services stolen is not more than $500 $1,000, and any of the following circumstances exist: (i) the property is taken from the person of another or from a corpse, or grave or coffin containing a corpse; or (ii) the property is a record of a court or officer, or a writing, instrument or record kept, filed or deposited according to law with or in the keeping of any public officer or office; or (iii) the property is taken from a burning, abandoned, or vacant building or upon its removal therefrom, or from an area of destruction caused by civil disaster, riot, bombing, or the proximity of battle; or (iv) the property consists of public funds belonging to the state or to any political subdivision or agency thereof; or 11 Source Annotation Bill language (v) the property stolen is a motor vehicle; or (4) to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both, if the value of the property or services stolen is more than $250 $500 but not more than $500 $1,000; or (5) in all other cases where the value of the property or services stolen is $250 $500 or less, to imprisonment for not more than 90 days or to payment of a fine of not more than $1,000, or both, provided, however, in any prosecution under subdivision 2, clauses (1), (2), (3), (4), and (13), the value of the money or property or services received by the defendant in violation of any one or more of the above provisions within any six-month period may be aggregated and the defendant charged accordingly in applying the provisions of this subdivision; provided that when two or more offenses are committed by the same person in two or more counties, the accused may be prosecuted in any county in which one of the offenses was committed for all of the offenses aggregated under this paragraph. Sec. 9. Minnesota Statutes 2004, section 609.535, subdivision 2a, is amended to read: Source -Issuing a dishonored check Subd. 2a. Penalties. (a) A person who is convicted of issuing a dishonored check under subdivision 2 may be sentenced as follows: (1) to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if the value of the dishonored check, or checks aggregated under paragraph (b), is more than $500 $1,000; (2) to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both, if the value of the dishonored check, or checks aggregated under paragraph (b), is more than $250 $500 but not more than $500 $1,000; or (3) to imprisonment for not more than 90 days or to payment of a fine of not more than $1,000, or both, if the value of the dishonored check, or checks aggregated under paragraph (b), is not more than $250 $500. 12 Annotation Bill language (b) In a prosecution under this subdivision, the value of dishonored checks issued by the defendant in violation of this subdivision within any six-month period may be aggregated and the defendant charged accordingly in applying this section. When two or more offenses are committed by the same person in two or more counties, the accused may be prosecuted in any county in which one of the dishonored checks was issued for all of the offenses aggregated under this paragraph. Sec. 10. Minnesota Statutes 2004, section 609.595, subdivision 1, is amended to read: Source -Criminal damage to property in the first degree Subdivision 1. Criminal damage to property in the first degree. Whoever intentionally causes damage to physical property of another without the latter's consent may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if: (1) the damage to the property caused a reasonably foreseeable risk of bodily harm; or (2) the property damaged belongs to a common carrier and the damage impairs the service to the public rendered by the carrier; or (3) the damage reduces the value of the property by more than $500 $1,000 measured by the cost of repair and replacement; or (4) the damage reduces the value of the property by more than $250 $500 measured by the cost of repair and replacement and the defendant has been convicted within the preceding three years of an offense under this subdivision or subdivision 2. In any prosecution under clause (3), the value of any property damaged by the defendant in violation of that clause within any six-month period may be aggregated and the defendant charged accordingly in applying the provisions of this section; provided that when two or more offenses are committed by the same person in two or more counties, the accused may be prosecuted in any county in which one of the offenses was committed for all of the offenses aggregated under this paragraph. 13 Annotation -Criminal damage to property in the third degree Bill language Sec. 11. Minnesota Statutes 2004, section 609.595, subdivision 2, is amended to read: Subd. 2. Criminal damage to property in the third degree. (a) Except as otherwise provided in subdivision 1a, whoever intentionally causes damage to another person's physical property without the other person's consent may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both, if the damage reduces the value of the property by more than $250 $500 but not more than $500 $1,000 as measured by the cost of repair and replacement. (b) Whoever intentionally causes damage to another person's physical property without the other person's consent because of the property owner's or another's actual or perceived race, color, religion, sex, sexual orientation, disability as defined in section 363A.03, age, or national origin may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both, if the damage reduces the value of the property by not more than $250 $500. (c) In any prosecution under paragraph (a), the value of property damaged by the defendant in violation of that paragraph within any six-month period may be aggregated and the defendant charged accordingly in applying this section. When two or more offenses are committed by the same person in two or more counties, the accused may be prosecuted in any county in which one of the offenses was committed for all of the offenses aggregated under this paragraph. Section 1. [609B.01] CRIMINAL RECORDS EXPUNGEMENT. This chapter provides the grounds and procedures for expungement of criminal records under section 13.82; 152.18, subdivision 1; 299C.11, where a petition is authorized under section 609B.02; or other applicable law. The remedy available is limited to a court order sealing the records and prohibiting the disclosure of their existence or their opening except under court order or statutory authority. Nothing in this chapter authorizes the destruction of records or their return to the subject of the records. 14 Source Recodification and restructuring of expungement law SF3112 Ortman HF3844 Meslow As Introduced Annotation Expansion of scope: whether or not resolved in favor Bill language Sec. 2. [609B.02] GROUNDS FOR ORDER. A person may petition under section 609B.03 for the sealing of all records relating to the person's arrest, citation, indictment or information, complaint, trial, guilty plea, or verdict regardless of whether the proceedings were resolved in the person's favor. Sec. 3. [609B.03] PETITION TO EXPUNGE CRIMINAL RECORDS. Subdivision 1. Petition; filing fee. An individual who is the subject of a criminal record who is seeking the expungement of the record shall file a petition under this section and pay a filing fee in the amount required under section 357.021, subdivision 2, clause (1). The filing fee may be waived if the actions or proceedings that resulted in the criminal record were resolved in favor of the petitioner. Sec. 3. Subd. 5. Maintenance of records. If the court issues an expungement order it may require that the criminal record be sealed and the record not be opened except as provided under subdivision 8. An expungement order or a record of the existence of an expunged record must not be disclosed, except as provided under subdivision 8. Records must not be destroyed or returned to the subject of the record. Subd. 8. Limitations of order. (a) Upon issuance of an expungement order related to a charge supported by probable cause, the DNA samples and DNA records held by the Bureau of Criminal Apprehension and collected under authority other than section 299C.105, shall not be sealed, returned to the subject of the record, or destroyed. (b) Notwithstanding the issuance of an expungement order: (1) an expunged record may be opened for purposes of a criminal investigation, prosecution, or sentencing, upon an ex parte court order; (2) the fact that an expunged record exists may be made available to law enforcement authorities acting within the scope of official duties; Source SF3112 Ortman HF3844 Meslow As Introduced Waive filing fee for “resolved in favor” SF3112 Ortman HF3844 Meslow As Introduced Circumstances for opening the expunged record SF3112 Ortman HF3844 Meslow As Introduced 15 Annotation Opening for statutory background check with notice to the subject Bill language (3) an expunged record of a conviction may be opened for purposes of evaluating a prospective employee in a criminal justice agency without a court order; and (4) an expunged record of a conviction may be opened for purposes of a statutorily required background study without a court order if the subject of the record has been given notice before the study that expunged records may be opened. Upon request by law enforcement, prosecution, or corrections authorities, an agency or jurisdiction subject to an expungement order shall inform the requester of the existence of an expunged record and of the right to obtain access to it as provided by this paragraph. For purposes of this section, a "criminal justice agency" means courts or a government agency that performs the administration of criminal justice under statutory authority. Source Order may affect judicial and executive branch records and others Sec. 3. Subd. 11. (b) A court's decision on whether to issue an expungement order is completely discretionary. If the court grants the expungement petition, it shall specify what records are to be affected by the order. The order may affect judicial branch records, executive branch records, and any other government records deemed appropriate by the court. Sec. 4. [609B.04] BUSINESS SCREENING SERVICES; REMOVAL OF DATA ON EXPUNGED RECORDS; CORRECTIONS. Subdivision 1. Definition. For purposes of this section, "business screening service" means a person engaged in the business of gathering, storing, or disseminating background information on individuals that includes records of arrests, citations, criminal proceedings, or convictions involving the individual. Business screening service does not include a residential screening service under sections 504B.235 to 504B.245. Subd. 2. Deletion of expunged records. If a business screening service knows that records of an arrest, citation, criminal proceeding, or conviction involving an individual have been expunged under this chapter or other law, the screening service shall delete any 16 SF3112 Ortman HF3844 Meslow As Introduced Business screening services – requirements and liabilities SF3112 Ortman HF3844 Meslow As Introduced Requirement to delete expunged records Annotation Bill language reference to those records in information maintained or disseminated by the screening service. Source Requirement to correct disputed records; notice of corrections Subd. 3. Corrections. If the completeness or accuracy of a record involving an arrest, citation, criminal proceeding, or conviction maintained by a business screening service is disputed by the individual who is the subject of the record, the screening service must reinvestigate and document the current status of the record. If the record is found to be inaccurate or can no longer be verified, the screening service must correct the inaccuracy or delete any reference to that record in information maintained or disseminated by the screening service. At the request of the individual, the screening service must give notification of the correction or deletion to persons who have received the record within the past six months. Subd. 4. Remedy. A business screening service that violates this section is liable to the individual who is the subject of the record for a penalty of $10,000 or actual damages caused by the violation, whichever is greater, plus costs and disbursements and reasonable attorney fees. Sec. 5. [609B.05] NO DUTY TO DISCOVER EXPUNGED RECORDS. An employer or prospective employer does not have a duty to discover or use a record that has been expunged under this chapter or other law for purposes of making an employment decision. Section 1. Minnesota Statutes 2004, section 609A.02, is amended by adding a subdivision to read: Subd. 3a. [CERTAIN CRIMINAL PROCEEDINGS NOT RESOLVED IN PETITIONER'S FAVOR.] A petition may be filed under section 609A.03 to seal all records relating to an arrest, indictment or information, trial, or verdict if the actions or proceedings were not resolved in favor of the petitioner. [EFFECTIVE DATE.] This section is effective August 1, 2005. Sec. 2. [REPEALER.] Minnesota Statutes 2004, section 609A.02, subdivision 2, is repealed. 17 SF3112 Ortman HF3844 Meslow As Introduced Liability for violations No employer duty to discover expunged records Scope expansion to “not resolved in favor” SF545 Betzold As Introduced (Last Action 1/27/05)