Restricting Access to Criminal History Information

In a lot of ways, just being charged with a crime has substantial ramifications on a person’s life. The arrest is a matter of public record. Being subjected to an arrest can be a humiliating experience. You know Tom and Mary are going to be talking about it at the water cooler once they find out. Just the accusation—true or not—can result in the loss of employment, housing, or result in any other number of collateral consequences. To add insult to injury, additional case information is published electronically by the court system after the charge is filed with the court. Where this information used to be difficult to find unless a researcher was skilled at obtaining criminal background information, now anyone with a computer and an internet connection can get access to it online at www.ndcourts.gov/publicsearch/default.html. And once that information is online, it stays there forever.

I often field questions from people who have had an unfortunate brush with the law about how to seal, expunge, or limit public access to their criminal records. As a general matter, there are five possible methods to restrict the public’s future access to a person’s criminal history information. Some methods are much more likely to occur than others. Here, I will briefly explain each of the five methods, and then discuss restricting public access in general.

1. EXPUNGEMENT: Some states, Minnesota for instance, have expungement statutes. Expungement is “the process by which a record of criminal conviction is destroyed or sealed from the state or federal repository.” In other words, expungement works to undo the record as if it never happened. Unfortunately, North Dakota does not have an expungement statute. However, in State v. Howe, 308 N.W.2d 743, 749 (N.D. 1981), the North Dakota Supreme Court held that a district court has the inherent authority to expunge an arrest record if the arrest was unconstitutional under some very limited circumstances. Other than those narrow and rare circumstances, expungement is not an option for relief in North Dakota.

2. PARDON: A Governor’s pardon is rare. A pardon is “the removal of punishment or custody imposed upon a person for the commission of an offense.” While a pardon does not automatically result in the sealing or removal of the record, the pardon certificate can specifically order the person’s conviction or plea or finding of guilt removed from the person’s record. To obtain a pardon, the person must be pardon-eligible and apply for a pardon to the Pardon Advisory Board. If the person is pardon-eligible, the Board reviews the application and makes recommendations to the Governor. The Governor, however, is the final decision-maker, and his decision is not reviewable.

3. FIRST OFFENSE MISDEMEANOR DRUG CASE: Under N.D.C.C. § 19-03.1-23(9), a person can file a motion with the district court to seal the Court’s file if the person was charged only with a first offense simple possession of less than one ounce of marijuana and the person is not convicted of any other crime for two years. Sealing the file does not remove the record, but it prohibits all access to it. The file cannot be reopened even by a Court order. This limits access two years down the road, and requires the person to file a motion with the Court. It does not happen automatically, and the Court may or may not grant the motion.

4. DEFERRED IMPOSITION OF SENTENCE: Under N.D.R.Crim.P. 32.1, the court may generally defer the imposition of sentence in most, but not all cases. If the court defers the imposition of its sentence, there has been an adjudication of guilt. After that guilty plea or verdict is accepted, the court typically places the defendant on probation (although jail, probation, or fines are all legally authorized). If the defendant complies with the terms and conditions of the deferment for the period stated in the order, 61 days after the period of probation ends, three good things happen. First, the adjudication of guilt—the guilty plea or guilty verdict—is vacated. Second, the charge is dismissed. Finally, the case is sealed from public disclosure. If the defendant does not comply with the probation terms, however, the record may be converted to a permanent conviction, which will stay on the person’s publicly available record. After a case has been sealed, it does not mean the record is erased or expunged. It can still be used by those having specialized access to the criminal justice records like the police, prosecutors, certain attorneys, or the federal government. After this record is sealed, it is not viewable on the North Dakota Supreme Court’s website. For someone without any other criminal history, it reads, “No cases matched your search criteria.” This happens automatically without the need to file a motion.

5. DISMISSAL OR ACQUITTAL: For those defendants who are found not guilty after a trial or who are accused and their charges are later dismissed, there is no mechanism to seal or expunge the records. That said, the law does provide a mechanism to restrict Internet access to the public file. Under N.D. Sup. Ct. Admin. R. 41, § 6, the defendant may file a motion and serve all parties with notice of the motion to restrict public access. The court then must decide whether there are sufficient grounds to overcome the presumption of openness of court records. The defendant must show an “overriding interest,” which might be the impact the record is having on the person’s ability to get a job, apartment, school purposes, benefits to which the defendant would be otherwise entitled, or some other important and articulable reason. The court must use the least restrictive means to achieve the purposes of the rule and the needs of the defendant. To restrict public access, the Court must find that it is appropriate “in the interests of justice.” If the court restricts internet access, search results for the defendant’s name would say, “Internet Access Prohibited under N.D. Sup. Ct. Admin. R. 41.” Again, this requires the defendant to file a motion with the Court. It does not happen automatically.
None of these options are perfect fixes to keep this information private. Expungement of arrest records and pardons are rarely, rarely granted. The other methods all happen post-adjudication. By that time, however, much of the damage has been done: the information is public, published, and readily available pre-trial.

To limit the scope of the damage a criminal arrest and charge has on your well-being, you should consider hiring an experienced, aggressive criminal defense lawyer to protect your rights and defend your reputation. Contact Nick Thornton at 701-478-7620 or nick@fremstadlaw.com to discuss your case with him today.