While representing criminal defendants, some of the most common questions I get is, “How is this going to show up on my record?”, “How can I get this off of my record?”, or “How long will this be on my record?” Up until recently, those with a North Dakota criminal record didn’t have too many options to limit, restrict, or seal criminal histories. I wrote about these limited options about five years ago: Restricting Access to Criminal History Information.
Recently, however, the North Dakota Legislature has provided a path to relief from the nasty collateral consequences associated with having a public criminal history: HB 1256 (the Criminal Seal Bill) and HB 1334 (the DUI Seal Bill). Both of these new laws become effective August 1, 2019. These laws allow eligible people to petition the court to seal their criminal histories. We can help you or your loved ones through these new processes. But first, let me explain a little about what these new laws do and how they work.
Criminal histories often haunt people for as long as they live. In the last 20 years, there have been multiple efforts to convince our Legislature to pass an expungement statute. Unfortunately, expungement has been a non-starter. Politically, it is hard for a politician to be tough on crime if he or she is seen to be soft on criminals. That said, a group of progressive-thinking legislators were able to pass a bill reducing the lifelong impacts of criminal histories on a lot of North Dakotans. It creates a judicial path to a “second chance” at life without a public criminal history.
Starting August 1, 2019, a person who has been convicted of a crime can petition the Court for an order to seal his or her criminal records. “Sealing” is not the same as expungement. It means the records are generally not disclosable unless authorized by court order. There is one notable exception – there are some jobs that require state licensure. The Court must release sealed records to an entity that has a statutory obligation to perform a criminal history background check for licensure purposes.
Eligible people include those who were found guilty of a misdemeanor or felony crime in North Dakota, and who have not been charged with a new crime for at least three years (for misdemeanor convictions) or five years (for felony convictions) from the date of their release from incarceration, parole, or probation. The law does not apply to those who were convicted of sex crimes or crimes against children requiring the person to register as an offender or felony offenses involving violence or intimidation during the time in which they are ineligible to possess firearms under state law (10 years from release from incarceration, parole or probation unless the person petitions the Court for relief from the firearms disability before the 10 years expires).
The petition must be filed in the existing criminal case. It must include the petitioner’s name, aliases, each address the person has lived at since the date of the offense, the reasons why the petition should be granted, the person’s entire criminal history (including pending matters), including matters from other states and countries, and any prior requests for pardon, return of arrest records, expungement or sealing of a criminal record, whether the person received that relief or not. The petition must be served on the prosecutor. Then, the Court will hold a hearing on the petition where the petitioner can put on testimony about why the petition should be granted.
In deciding whether to seal the records, the Court must determine, by clear and convincing evidence, that the petitioner has shown good cause to grant the petition, the benefit to the petitioner outweighs the presumption of openness of the record, that the petitioner has completed all terms of imprisonment and probation, paid all restitution, demonstrated reformation warranting relief, and the petition meets the form and procedural requirements of the new law. The judge must consider the nature and severity of the underlying crime, the risk to society posed by the petitioner, the length of time since the crime occurred, the petitioner’s rehabilitation efforts since then, any aggravating or mitigating factors relating to the crime, the person’s criminal history, employment history, and community involvement, the recommendations of law enforcement, prosecutors, corrections, and those familiar with the petitioner and the offense, and the thoughts of the victims.
If the relief is granted, the record is sealed from public disclosure. Landlords and most employers, for instance, will not be able to find the record after the court order granting relief. If relief is denied in municipal court, the petitioner can appeal to the district court. If relief is denied in district court, there is no appeal. All is not lost, however. A person denied relief can reapply to seal the record after three years.
The other bill, the DUI Seal Bill, created a new statutory provision, N.D.C.C. § 39-08-01.6, to provide a mechanism to seal convictions for driving under the influence. Under this new law, the Court must seal the record of conviction if the person was convicted of DUI and has not pled guilty or been found guilty of another DUI or any other criminal offense within seven years of the first DUI conviction. This does not apply to commercial drivers, and prosecutors can still use the sealed DUI conviction to enhance the offense level of a fourth offense DUI (4 within 15 years).
This sealing process works just like a deferred imposition of sentence. The judge vacates the finding of guilt by guilty plea or guilty verdict, dismisses the charges, and then the clerk’s office seals the records from public disclosure. Just like the criminal seal bill, this process is not the same as expungement. While the sealed records are not available for public disclosure, they are not erased, deleted or expunged. The records are still available to the clerk of court, judges, the juvenile court, probation officers, prosecutors, and those with specialized criminal justice access. The Court may grant access to the records to others by written order. Nevertheless, this means the public—landlords and employers in particular—will generally not have access to those records if you petition to seal those records after seven years.
In summary, North Dakota now offers two new laws that allow thousands of North Dakotans to petition the Court to seal their criminal histories. At Fremstad Law, we can help walk you through this new process to get you or your loved ones the relief they deserve. Contact Nick Thornton a call at 701-478-7620 or firstname.lastname@example.org to set up an appointment today.
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