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.
As of August 1, 2019, new laws were passed that created more opportunities for former convicted offenders to have their criminal history sealed. Before August 1, 2019, convicted offenders could only have their criminal records sealed under extremely 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.
In addition to the new laws passed in North Dakota in August 2019, criminal offenders have more opportunities to have their criminal records sealed with fewer exceptions.
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.
Sealing of Adult Criminal Records
It is important to note that even with the law change, North Dakota is still very conservative on what records may be expunged, especially for adults. This means North Dakota will not expunge most adult criminal records outside the above mentioned ones. However, some criminal records may still be sealed, making them confidential. Such records include:
- Certain non-conviction records, such as if an individual was acquitted or if charges brought against them were dismissed or withdrawn;
- Criminal cases where sentencing was deferred, and the individual completed probation or a diversion program; and
- Certain first-offender marijuana possession offenses.
If you need help determining your eligibility for expungement or record sealing, contacting a criminal lawyer or expungement lawyer is often needed. An attorney will be able to assist you in determining whether or not you are eligible for record sealing and assisting you with the North Dakota pardon system.
A pardon is another way an adult may utilize the legal system to clean up their record and prevent them from having issues with employment or professional licensing. Although a pardon does not remove a conviction from your criminal record, it does help prove your rehabilitation to prospective employers or licensing groups. Importantly, North Dakota only approves a very small number of pardons yearly. As such, an experienced criminal lawyer must assist with any pardon or clemency application.
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.
