Until recently, there has been no process in North Dakota for citizens who have been convicted of non-violent and/or non-sexual offenses to have their convictions sealed from public viewing regardless of how long ago the offenses happened or how minor they were. However, a new law that becomes effective on August 1, 2019, fixes that problem. There is judicial oversight of the process to ensure the right citizens are getting the relief they seek while giving the court the authority to deny a request if it is improper.[1]
In order to get your record sealed, you must submit a petition to the court in the existing criminal case you want to be sealed.[2] The petition must include your name (including any aliases), your addresses from the date of your offense until the date of your petition, the reasons why the petition should be granted, and your criminal history.[3] You must file a proposed order when filing the petition and ensure the prosecutor is served with the documents.[4]
Once the court receives your petition, a hearing will likely be held. The court has the authority to grant your request if the following apply to your case: you have shown good cause for granting the petition, the benefit to you outweighs the presumption of openness of the criminal record, you have completed all of your probation, you have paid all restitution (if ordered by the court), you have demonstrated reformation warranting relief, and you have properly submitted your petition.[5]
The court will consider the following when deciding to seal your record: the nature and severity of the offense you are asking to be sealed, the risk you pose to society, the length of time since you committed the offense, any rehabilitation you have gone through since the offense, any aggravating or mitigating factors that apply to your case, your criminal record, your employment history, your community involvement, recommendations from law enforcement and those familiar with the offense, and any recommendations from victims (where applicable).[6]
In addition to meeting the requirements above, applicants do have to wait for a period after their case is closed and have committed no new crimes for that same period. For applicable misdemeanor cases, you must wait at least three years.[7] For applicable felony cases, you must wait at least five years.[8] In the event your request is denied, you do not have the opportunity to appeal that decision to the North Dakota Supreme Court,[9] but you can try again in three years.[10]
This law is a great opportunity for citizens to clear up past mistakes that have been dogging them for years and increase their education, employment, and housing opportunities. With the appropriate judicial oversight, we will be able to ensure that deserving citizens have an opportunity to get their criminal record sealed while the more dangerous offenders will keep their criminal history intact. This was just a summary of the new law and there may be other provisions that apply to your situation. If you have any questions about sealing your record contact the attorneys at Brudvik Law Office, P.C. to discuss your options.
[1] N.D. Cent. Code § 12-60.1-04
[2] N.D. Cent. Code § 12-60.1-03(1)
[3] N.D. Cent. Code § 12-60.1-03
[4] Id.
[5] N.D. Cent. Code § 12-60.1-04
[6] N.D. Cent. Code § 12-60.1-04(2)
[7] N.D. Cent. Code § 12-60.1-02(1)(a)
[8] N.D. Cent. Code § 12-60.1-02(1)(b)
[9] N.D. Cent. Code § 12-60.1-04(6)
[10] N.D. Cent. Code § 12-60.4-04(8)
Issues that have arisen since this became law. Not many people are getting their petitions granted. As far as we know, only a few have been granted since it became law in August 2019. There has been a problem with the interpretation of the law and legislative intent. Meaning that originally this law was supposed to give people a chance to seal their record if they had shown cause with the criteria set above, as long as they were not sex or violent offenders and have completed all requirements asked by the State of North Dakota and been crime-free for 5 years for felony petitions and 3 years for misdemeanor petitions. But, an interpretation has come down that one must have felony 5 years apart from each other, or no crimes have been committed while on probation of any kind. This makes things particularly harder for drug addicts and alcoholics who have been known to get multiple convictions is a short period of time due to their addiction. This law was supposed to be great for those afflicted with addiction, especially when they get into long term recovery and trying to set forth a newly reformed life, but it fails to do that. It’s in my opinion that addiction is not a crime and mental health is being held potentially to a life sentence on the internet. This is especially true for mugshots posted by media and law enforcement, for which many times a conviction does not even need to happen and one can have the life sentence of a felony background on google before they have even had their date in court. Its almost like social media channels and media outlets have become judge and jury by simply adding the work felony to a picture.
F5 will continue to work with state attorneys, state legislators to create better opportunities for those afflicted by addiction and those returning back to our communities looking to make a fresh start at a reformed life. Be on the lookout for amendments to the criminal record seal law and mugshot reform.
I would like to thank Scott Patrick Brand of Nilson Brand law for producing an exceptional blog I could use as a reference.
