Contributor: Adam Justinger
Have you ever been convicted of a DUI or other crime in North Dakota? If you have, at some point you have probably wondered whether you could get that conviction off of your record. The conviction may have affected your ability to obtain employment, secure housing, attend college programs, etc. So, is it possible to get that conviction sealed from your record in North Dakota? The short answer to that is yes. Starting August 1, 2019, individuals with a criminal record can petition the court to have their criminal record sealed. However, there are some limitations. Further, the petition process is very specific/complex, and retaining an attorney is likely in your best interest.
North Dakota has never had an “expungement process” but there were still ways to have your record sealed. Often times, these words are used interchangeably, but they are different. With an expungement, your record is completely deleted/destroyed. On the other hand, in North Dakota, when a record is sealed, the disclosure of the existence or contents of the court or prosecution records is prohibited unless authorized by a court order. Thus, when your record is sealed, it is not completely destroyed or deleted and there are still certain ways individuals/agencies can obtain your criminal record. However, generally speaking, when your record is sealed, the general public will not have access to your records.
In North Dakota, prior to August 1, 2019, there were very few ways to get a criminal conviction sealed from your record. One of the ways an individual could have their record sealed is if they received a deferred imposition of sentence. However, deferred imposition of sentence requires an individual to plead guilty to an offense and is not offered in every case. There were also certain crimes that could be sealed if an individual complied with all of the requirements. The limited list of crimes included possession of marijuana (less than an ounce) and crimes that were committed as a direct result of being a victim (such as prostitution). Finally, an individual could seek a pardon through the Pardon Advisory Board.
The 66th Legislative Assembly convened on January 3, 2019, and Adjourned on April 26, 2019. During the session, many different bills were presented, such as House Bill 1256 (HB 1256). HB 1256 created and enacted a new section of the North Dakota Century Code that would allow for the sealing of criminal records. HB 1256 was passed in both the House and the Senate and will be enacted beginning August 1, 2019.
Am I Eligible To Seal My Record?
An individual may only petition the court to seal their criminal record if they are eligible. To be eligible, there are different requirements for misdemeanor and felony offenses. In either case, an individual must have pled guilty to or have been found guilty of the offense. For misdemeanor offenses, an individual may petition the court if they have not been charged with a new crime for at least three (3) years from the date of release from incarceration, parole, or probation. For felony offenses, an individual may petition the court if they have not been charged with a new crime for at least five (5) years from the date of release from incarceration, parole, or probation.
But, there are still certain individuals who may not petition the court to seal their record. The petition process does not apply to felony offenses involving violence or intimidation during the period in which the offender is ineligible to possess a firearm under North Dakota law. To read more about gun rights restoration and your eligibility, check out one of our previous blogs. Additionally, individuals who are required to register under North Dakota law are also prohibited from having their criminal records sealed.
Petitioning The Court
When drafting a petition, the individual must include their full name and any other legal names, all of the addresses they have resided at from the date of the offense until the date of the petition, reasons why the petition should be granted, and their criminal history in North Dakota, any other state, federal court, and/or foreign countries. An individual must file the petition in the existing criminal case for the offense. Along with the petition, a proposed order must also be filed granting the sealing of the criminal record. Finally, the petition must be served upon the prosecuting attorney as required by the North Dakota Rules of Criminal Procedure.
Hearing On The Petition
After a petition is filed, the court shall hold a hearing on the matter. A hearing on the petition may not be held earlier than forty-five days following the filing of the petition. This allows the prosecutor time to notify and seek input from law enforcement, witnesses, victims, and correctional authorities familiar with the petitioner and the offense.
At the hearing, the court may grant an individual’s petition if the court determines by clear and convincing evidence that the individual has met all the factors required in the statute. Some of these factors include that the petitioner has shown good cause for granting the petition and that the petitioner has completed all terms of imprisonment and probation for the offense. The court will also consider other factors such as the nature and severity of the offense and the risk the petitioner poses to society; among other things. However, it should be noted, that a prosecutor can stipulate to the sealing of a criminal record without a hearing or to expedite the process.
Outcome Of The Petition
After the hearing, the court may either grant or deny the petition. If the court grants the petition, the record will be sealed. If the petition is denied, the record will not be sealed and the individual will have to wait three (3) years after the denial before filing a subsequent petition to seal a criminal record. If a petition is denied in district court, an individual may not appeal. However, if the petition is denied in municipal court, the petition may be appealed to the district court.
If you have a North Dakota criminal conviction that you would like to have sealed from your record, contact our office today. Petitioning the court to have a criminal record sealed is complex and seeking legal representation may be in your best interest. If you have a criminal issue in North Dakota, please do not hesitate to call the Criminal Defense Team at SW&L Attorneys in Fargo at 701-297-2890.
This article is only meant to provide general information and does not constitute legal advice.