One must first understand the criminal system to understand how to expunge a conviction in North Dakota. After an individual has been charged and found guilty of a crime, they will receive a conviction. A criminal conviction is a formal judgment of guilt by an individual that a criminal court enters.
Importantly, a criminal conviction on a person’s criminal record can impact an individual in many ways, including their:
- Ability to become employed;
- Right to obtain professional licensing;
- Right to vote; or
- Legal right to obtain or carry a firearm.
It is important to note that even if a criminal case does not result in a formal conviction, the record of that person’s arrest and the criminal prosecution will generally remain on that person’s criminal record. This is true in North Dakota as the North Dakota Attorney General’s office provides that even if an individual’s court record is sealed or expunged, that does not remove the information from the individual’s criminal history record.
As such, if an individual in North Dakota has pleaded guilty to, or has been found guilty of, a criminal offense, such information cannot be expunged from their criminal history record, even if it is expunged from the court’s file.
Although a conviction will still appear on an individual’s criminal history record regardless of how many years have passed, an expungement may still assist an individual. There are specific circumstances in which a person’s conviction or arrest records can be sealed away. Sealing a person’s record means that their records are off limits to everyone but law enforcement personnel or the military.
Alternatively, an individual’s criminal record may also be eligible for a legal process known as criminal expungement. Expungement in North Dakota is the legal process in which a person’s criminal file is completely removed from the public record.
In 2019, North Dakota passed a law that opened up more ways for people with criminal records to have those records sealed. This law took effect on August 1, 2019, and it still governs record sealing in North Dakota today. Before this change, convicted offenders could only have their criminal records sealed under very limited conditions.
The following is a list of criminal records that may be expunged in North Dakota:
- Possession of less than one ounce of marijuana;
- Crimes that were committed as a result of being a victim of human trafficking;
- Records of juvenile court unruly/delinquency proceedings;
- Records of DNA profiles; or
- Records of unconstitutional arrests.
Under the 2019 law, criminal offenders have more options to have their criminal records sealed, with fewer exceptions than before.
Expungement of Juvenile Criminal Records
As mentioned above, expunging a criminal conviction for juveniles in North Dakota is available. Specifically, in North Dakota, the juvenile or their legal guardian, if they are not of age, may seek to expunge certain juvenile records so long as the offense qualifies for expungement.
The law states that delinquency records in North Dakota are retained for 10 years after the final order or until the individual reaches the age of 18, whichever is later. Further, unruly records in North Dakota are retained for 1 year after age 18 or the expiration of the final order.
When such records are expunged, the records are destroyed, and all agencies are notified. Then, upon inquiry of the record, all agencies will reply that no records exist. As such, the sealing of juvenile records in North Dakota is more of an automatic process than petitioning to have such records sealed, as it is in other states.
Who Can Petition to Seal an Adult Criminal Record in North Dakota?
Adults may petition to seal their criminal records in the following situations:
- Misdemeanor convictions: A person who pled guilty or was found guilty of a misdemeanor may petition to seal the record if they have gone at least three years without a new conviction.
- Felony convictions: A person who pled guilty or was found guilty of a felony may petition to seal the record if they have gone at least five years without a new conviction.
- Unconditional pardons: A person who received an unconditional pardon from the governor may also petition to seal the record tied to that conviction.
In addition, some records may be sealed outside of the petition process. These include certain non-conviction records (such as acquittals, dismissals, or withdrawn charges), cases where sentencing was deferred and the person finished probation or a diversion program, and certain first-time marijuana possession offenses.
What Records Cannot Be Sealed?
Not all records qualify. The sealing law does not apply to:
- Felony offenses involving violence or intimidation where the person is not allowed to have a firearm; or
- Offenses that require the person to register as a sex offender.
How Do You File a Petition?
To petition for record sealing, you must file in the same criminal case where the conviction happened. The petition must include your full name and any aliases, your addresses from the date of the offense to the present, reasons for the request, and a full criminal history. You must also file a proposed order and serve the petition on the prosecutor. An experienced expungement lawyer can help make sure this paperwork is done right and filed correctly.
Associated Fees and Paperwork
Regarding the filing fees and costs associated with expungement, the fees will vary depending on the severity of the individual’s criminal record. Generally, an individual must pay an initial filing fee for the conviction expungement. This is true for each additional record an individual seeks to have expunged.
Other costs associated with expunging a record include the expenses associated with obtaining an individual criminal record or evidence that the individual’s case was dismissed. An individual may also seek to hire an experienced expungement attorney, which will also come with its own set of legal costs.
Once again, a Petition for Expungement will also have to be prepared and filed, which may also come with costs if the person petitioning for the expungement needs assistance preparing the application. Failure to properly complete the application will result in the expungement being denied without a refund of the filing fees.
If the court grants an individual’s expungement, that person may lawfully state that the expunged criminal record does not exist. As such, when most employers search for that individual’s North Dakota criminal record, the charges will likely not be present. However, many background search service providers do not update their databases.
Depending on the service provider utilized in the search, a person’s expunged record may still appear. However, the individual may present their expungement order, proving the record does not exist. It is important to note that a person’s expunged records will still be available to law enforcement agencies and certain military organizations.
Should I Consult a Lawyer?
If you would like to have a conviction or criminal record expunged in North Dakota, consulting with an experienced North Dakota expungement lawyer is in your best interests. An experienced attorney will be best suited to help you understand North Dakota’s most updated expungement laws and what your legal options are under those laws.
Further, if you have any questions regarding North Dakota’s expungement laws and process, an attorney can answer those questions for you. Additionally, an experienced criminal defense or expungement lawyer can guide you through applying for expungement if you are eligible. Finally, an attorney can also represent you in court, as needed.
