The Mn Criminal Defense, Personal Injury & Family Law Blog
Can a Buffalo Criminal Defense Lawyer Clear My Name?
January 18, 2019
In 2015, the Minnesota legislature significantly expanded the state’s expungement law. The expansion included additional eligible offenses as well as additional forms of relief. There is no guarantee that the new expungement law will erase your criminal past. However, the law gives assertive Buffalo criminal defense lawyers additional opportunities. And sometimes, that chance is all it takes.
A criminal conviction greatly interferes with some things which many people take for granted. For example, Minnesota’s ban the box law prohibits employers from asking about criminal backgrounds during the initial screening process. But employers can, and often do, refuse to interview people with criminal histories. Courts have repeatedly upheld these blanket policies.
If potential employers do not see your conviction record, they cannot ask about it. This proactive approach is the best way to deal with problems like this one.
A Buffalo Criminal Defense Lawyer Explains the Different Kinds of Expungement
There are basically three forms of expungement in Minnesota, and not all of them follow the traditional expungement pathway.
Initial plea bargain agreements often include deferred adjudication. Prosecutors normally recommend deferred if the case is a nonviolent offense and the defendant has no criminal history. In other situations, a judge may unilaterally grant deferred adjudication. Open pleas like this one, however, are rather risky.
Then again, the entire concept of deferred adjudication is risky. Procedurally, the defendant enters a plea and the judge places the defendant on probation. However, the judge does not enter a finding of guilt. Instead, the judge defers this part of the proceeding until after the defendant completes probation.
If the defendant successfully completes probation, the judge dismisses the criminal charges. However, if the defendant violates probation, the judge may sentence the defendant to anything up to the maximum. If the case is a serious felony, that could mean a very long prison term. Common probation violations include:
Failure to report,
Committing a new offense while on probation,
Failure to pay money, and
Violating an offense-specific condition, like failing a drug test.
Many times, a Buffalo criminal defense lawyer bundles a motion for early discharge from probation with deferred adjudication probation. Typically, defendants who have squeaky-clean probation records, have completed at least half the term, and have fulfilled all outstanding obligations (e.g. paid restitution and completed required classes) are eligible for early discharge.
Early release from probation eliminates the risk of violating probation. That’s a very significant plus. Additionally, for expungement purposes, early release makes a probation officer’s endorsement more likely. That endorsement is not quite the Midas touch, but it is pretty close.
Deferred adjudication, by itself, eliminates the conviction record. The arrest record remains and is still in full public view. A Buffalo criminal defense lawyer can also ask the court to seal the record. Under the new expungement law, courts have almost unlimited authority to expunge their own records.
However, courts lack the authority to expunge executive branch records. So, the BCA and all other law enforcement agencies still have their arrest records. That could be important if, for example, the defendant needs to undergo a background check for security reasons.
That being said, a residual arrest record is not the end of the world. That’s certainly true in the aforementioned employment situations. Most employers want to know about convictions and not arrests.
In some cases, a Buffalo criminal defense lawyer may be able to clear your name for any and all purposes. Before 2015, full expungement was only available in a limited number of cases. Now, expungement may be available in the following situations:
A for-cause dismissal means something like a lack of evidence or a lack of probable cause. Prosecutorial discretion dismissals are usually not eligible for expungement.
Most domestic violence cases, such as assault and violation of a protective order, are never expungeable. The same thing is basically true of most sex offenses. Additionally, a waiting period of between one and five years may apply.
Factors the Judge May Consider
Plea bargains resolve most original criminal cases. But there is no plea bargaining in expungement matters. If the probation officer endorses the petition, the prosecutor may not contest it. However, the judge always has the final say. The factors to consider include:
Severity of the offense,
Amount of time that’s passed since the conviction,
Defendant’s employment status and community ties,
Criminal history, and
Affirmative rehabilitation steps.
Generally, the judge will grant the expungement petition if the defendant meets all the technical requirements, the probation officer endorses the petition, and the defendant has a good reason for the request.
Rely on Experienced Attorneys
Most defendants are eligible for some form of expungement. For a free consultation with an experienced Buffalo criminal defense lawyer, contact Carlson & Jones, P.A. We routinely handle matters in Wright County and nearby jurisdictions.