The Mn Criminal Defense, Personal Injury & Family Law Blog
Can a Hutchinson, MN Criminal Defense Lawyer Expunge My Record If I Don’t Meet the Statuatory Requirements?
May 23, 2019
Fifteen years ago, the answer to this question was a resounding “no.” But then, in 2008, the Minnesota Supreme Court decided State v. SLH. This decision introduced the concept of inherent authority expunction. There are basically two big differences between statutory expungement under the Minnesota Statutes and inherent authority expungements.
Statutory expungement is a right. To assert a right, you simply have to ask for it. But inherent authority expungement is a privilege. Unless the defendant gives the judge a good reason for expungement, the judge probably will not do it. Additionally, and perhaps more importantly, statutory expungement wipes out all judicial and law enforcement records. Inherent authority expungement only affects judicial records, at least in most cases.
Inherent authority expungement is a last resort. But many people entertain this option before they have gone through all their statutory options. Significantly, very few people try to obtain an executive pardon, even though the process is easier than they think.
You do not need to make a big financial contribution to buy a pardon. Actually, that may be one of the worst things you can do. No governor wants to be accused of favoritism.
Instead, a Hutchinson, MN criminal defense lawyer simply needs to know how to ask. Every situation is different, but here are some general rules:
Know Where to Go: A pardon application addressed to the governor will go straight into the trash, and an application addressed to a junior assistant will never see the light of day either. A successful pardon application begins with knocking on the right door, and an experienced Hutchinson, MN criminal defense lawyer knows where to knock.
Admit Responsibility: Begin and end your application with a complete and unqualified admission of guilt. Your friends did not entice you and the devil did not make you do it.
Explain Extenuating Circumstances: The governor was not there and does not have the trial transcript. If appropriate, the prior obstacles narrative usually works well. For example, perhaps you have overcome a substance abuse problem.
Praise the System: If you served time in jail or prison, you had lots of time to think. If you were placed on probation, the court-ordered classes struck a chord with you.
Ask For What You Need: Unabashedly ask for a complete pardon. One of the fundamental rules of criminal law is that you never get anything unless you ask.
Pardons are even easier to obtain if you are no longer under court supervision. At that point, a gubernatorial pardon is basically just a rather meaningless gesture. It only has significance if the defendant uses the pardon to obtain statuatory expungement.
What is Inherent Authority?
Since the judge has absolute control over judicial records, it stands to reason that the judge should have the authority to purge these records in certain situations. The S.L.H. court offered practically no guidance in this area. The court simply stated that, under “appropriate circumstances,” judges could use their inherent authority to expunge judicial records.
That lack of guidance is actually a good thing. Appeals courts usually review lower court decisions like these on an abuse-of-discretion basis. With such a broad mandate from the Supreme Court, it is almost impossible for judges to abuse their discretion in these cases.
In other words, the court has almost absolute authority to purge judicial records. A Hutchinson, MN criminal defense lawyer just needs to give the judge a good reason to do so.
Why Do You Need Expungement?
In statutory proceedings, this question is relevant but not really controlling. The McLeod County judge just needs to hear a legitimate answer.
But in inherent authority expunction cases, this answer may mean everything. Generally, the defendant must offer a specific reason, such as:
Inability to pursue a certain professional occupation that the defendant is otherwise qualified to pursue,
Difficulty in finding a place to live (i.e. I tried to obtain a mortgage from this bank or rent from this company but my criminal conviction derailed my application), or
Inability to find a job that pays enough to support a family.
If you can articulate this reason for the judge, the judge is quite likely to approve your application, especially if the conviction is at least ten or fifteen years old.
Can a Hutchinson, MN Criminal Defense Lawyer Expand Inherent Authority?
In principle, inherent authority expunctions are limited to judicial records. However, the Supreme Court has yet to directly rule on this issue. Therefore, in a few cases, there may be a workaround.
For example, a dismissal may expand inherent authority to executive records, even if the offense is on the prohibited list. If the court dismisses the case, most defendants reasonably believe that they will suffer no ill effects from the criminal proceedings.
Certain juvenile cases may fall into this area as well. Additionally, if the defendant was discharged at least fifteen years ago and the defendant has taken a number of self-improvement steps, expansion may be available.
Reach Out to Dedicated Attorneys
An attorney’s job does not end when the judge’s gavel falls, because there may still be remedies available. For a free consultation with an experienced Hutchinson, MN criminal defense lawyer, contact Carlson & Jones, P.A. We routinely handle matters in McLeod County and nearby jurisdictions.