The North Dakota state legislature recently passed HB 1196, a law that would allow people with criminal convictions to have their records sealed if they have not been convicted of another crime within a certain period of time. The new law is similar to a bill that was passed in 2020; however, the North Dakota Supreme Court decided that that law only allowed the most recent conviction to be sealed if the person had more than one conviction.
The new law will close that loophole and allow all offenses to be sealed if the individual with the conviction meets the applicable time period without additional convictions. Additionally, the old law only allowed a record to be sealed if the individual applying had not been charged with a crime, while the new law allows anyone who has not been convicted of a crime to have their record sealed.
HB 1196 will benefit people who have dealt with substance abuse, alcoholism, or mental health issues who may have multiple convictions when they were using, but have been clean and sober and conviction-free for years.
To be eligible, someone who was previously convicted of a misdemeanor must be free from convictions for a period of 3 years before filing the petition. Someone who was convicted of a felony is eligible to have their record sealed if they have no convictions during the 5 years before filing the petition. The time requirement begins to run from the date the person was convicted.
Once someone with a criminal conviction reaches the applicable time requirement, they can petition the court to have their record sealed. If the court denies the request, the judge must provide reasons why. A person whose petition was denied apply again after another 3years.
If the petition is granted, the person with the criminal conviction would have their criminal record sealed from public disclosure. Landlords and most employers will not be able to view the person’s criminal record, and the judge granting the petition will issue a certificate of rehabilitation.
According to Adam Martin, the founder and executive director of the F5 Project, a non-profit organization that helps people with criminal records find jobs, housing, support, professional development, and more, the certificate of rehabilitation may be even more important than having a criminal record sealed. By presenting a certificate of rehabilitation, a judge is co-signing the sealed record and telling the public that the offender has reformed their life.
Representative Shannon Roers Jones, one of the sponsors of the bill, said “The rationale behind sealing of criminal records is to allow someone who has substantially rehabilitated their life to make a fresh start.” Sealing a person’s criminal record would make it easier for the individual with the criminal conviction to find gainful employment or secure housing.
Even if a petition to seal a criminal record is granted, there are exceptions. Law enforcement agencies will still have access to a person’s criminal records and a person with a criminal conviction who is seeking state licensure would still need to disclose their criminal conviction. Courts will be required to release criminal records to any entity that has a statutory obligation to conduct a criminal background check as part of a state licensure.
Additionally, the law prohibits people with some convictions from seeking to have their records sealed. People who were convicted of sex crimes or crimes against children that require them to register as a sex offender, and people convicted of a felony offense involving violence or intimidation during the time in which they are ineligible to possess firearms (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) cannot seek relief under HR 1196.
To file a petition to have a criminal record sealed, the petitioner must file the petition in an existing criminal case. The petition must include the petitioner’s name, any aliases, the addresses the person has lived at since the date of the offense, reasons the petition should be granted, the individual’s entire criminal history (including cases from other states), and any prior requests for pardon, return of arrest records, expungement, or sealing of a criminal record.
The court will evaluate the petition to seal a criminal record to determine whether the petitioner has shown, by clear and convincing evidence, that the petitioner has good cause to grant the petition. The judge will evaluate the nature and severity of the underlying offenses, any risk to society posed by the petitioner, the petitioner’s efforts at rehabilitation, any aggravating or mitigating factors, the petitioner’s employment history and community involvement, and recommendations of law enforcement and those familiar with the petitioner. The judge will also consider the thoughts of the victims.
If you have prior criminal convictions and need help filing a petition to have your criminal record sealed, the lawyers at Fremstad Law can help. Our mission is to move our clients forward, and we will help you through this process to get the relief you need. Contact Fremstad Law criminal defense attorney Nick Thornton today to learn how he can help.
© 2022 Fremstad Law