Sealing and Expunging Criminal Records in North Dakota

Criminal justice agencies in North Dakota maintain the criminal history information of all persons resident within the state’s jurisdiction. These agencies, including the North Dakota Judiciary, are also custodians of criminal records. Record custodians are bound by the North Dakota Open Records Law to release criminal records to requesters, except otherwise indicated by state statutes or sealed by court order.

The Difference Between Sealing and Expunging Criminal Records

Sealing and expungement are different terms and accomplish other objectives regarding criminal records in North Dakota. Per Chapter 12–60.1 of the North Dakota Century Code, to seal a criminal record means to render the information in the record inaccessible to the public. Consequently, the general public, private entities, and most government agencies cannot view or obtain sealed court records without a court order. On the other hand, expungement is the deletion or permanent destruction of the information in a criminal record. In this case, no entity (public or private) may access the record.

Eligibility Requirements to Seal a Criminal Record in North Dakota.

Chapter 12–60.1 of the NDCC outlines the statutory requirements to seal criminal records in North Dakota. These requirements include:

• The court dismissed the charges, or the court wrongly convicted the individual.
• The offense is a misdemeanor.
• The individual has not been charged with a new crime for at least three years from the date of completing court-imposed penalties; and,
• The individual is guilty of a felony offense eligible for sealing and has not been indicted for at least five years.

How to Expunge a Criminal Record in North Dakota

North Dakota laws limit expungement to several offenses. Some of these include juvenile crimes, possession of marijuana, and crimes committed as a victim of human trafficking. Expungement petitions are typically subject to a court review of the circumstances surrounding the offense. If eligible, the process of expunging a criminal record is relatively direct, and an individual may complete it without legal assistance. However, requestors are advised to employ an experienced attorney’s services to accomplish this objective.

The North Dakota Judiciary provides systematic instructions regarding the eligible crimes and the procedure for expungement. Generally, the individual begins by requesting criminal history information from the Bureau of Criminal Investigation (BCI). The individual must then file a petition to expunge in the District Court where the case was filed. The presiding judge shall consider the merits of the case and decide whether to grant the expungement or not.

How to Seal a Criminal Record in North Dakota

Just as there are limitations to the expungement of criminal records, there are exemptions and rules to follow when requesting to seal a criminal record. However, the restrictions concerning sealing criminal records are not as limiting as expungement. First, petitioners are advised to ensure that their record meets the criteria in Chapter 12.60–1.

To confirm that the crime is eligible for sealing, the individual may request criminal history information from the BCI. The individual must also follow court-established instructions for sealing criminal records. Generally, the petitioner must file a petition that names the arresting agency and the prosecutor as respondents. Also, the individual must attach two essential documents to the petition. These include a proposed order to seal and proof of service of the petition and order upon the respondents.

Petitions bear the individual’s personal information and address. Furthermore, it must state clearly the reasons that the court must consider and grant the order to seal. Petitions also include the individual’s criminal history information. It may be helpful to attach a copy of the criminal history information. The proposed order must also contain details outlined in the guideline.

Upon completing the process of filing a petition, the court shall schedule a hearing date not earlier than 45 days after receiving the petition. Court hearings for sealing follow a trial-style where the petitioner and prosecutor make arguments for or against the case. After that, the judge makes a declaration to seal or deny the petition. A petitioner may appeal to a municipal court ruling that prohibits sealing, but the individual may not appeal to a district court. Furthermore, if unsuccessful, the petitioner must wait for at least three years before initiating another petition to seal.

In deciding whether to grant the order to seal, the presiding judge shall consider the following:

• The nature and severity of the crime;
• The potential risk that the offender poses to society.
• The length of time since the individual committed the offense;
• Rehabilitation and probation records since the offense.
• Aggravating or mitigating factors relating to the crime before and after the individual’s conviction;
• The individual’s criminal record, employment history, and community service activities;
• Recommendations from law enforcement, prosecutors, corrections officials, and credible entities in the individual’s community;
• Recommendations of the victims.

What Crimes May Be Sealed or Expunged in North Dakota?

North Dakota courts may allow the sealing of misdemeanors and felonies except when the crime involved a dangerous weapon, intimidation, crimes against children, or sex crimes. However, the court may only grant petitions to expunge juvenile offenses, records related to victims of human trafficking, possession of less than one (1) ounce of marijuana, and records of unconstitutional arrests.

Can a Felony be Expunged in North Dakota?

Individuals with felony conviction records in North Dakota may face long-term challenges with housing, education, and employment, and expungement may offer a fresh start. Under HB 1256 and HB 1334, passed in August 2019, North Dakota residents have more opportunities to benefit from expungement. Felony convictions may be expunged under certain conditions. The conviction should be for non-violent felonies, and they must have completed the mandatory 10-year waiting period. When this occurs, the contents of that record may only be made available with court approval.

For individuals with one or more felony convictions to get their records expunged, the court must find good cause before such a petition may be granted. For instance, the individual may demonstrate that the conviction has constituted a barrier to getting gainful employment, rent, or pursuing professional qualifications. The judge would apply discretion to weigh the benefits of the sealing to the petitioner against the public interest of keeping the record open.

However, not all offences are eligible for expungement. Certain offences, such as those requiring registration under section 12.1-32-15 (including crimes against children and sexual offences), are not eligible.

The conditions under which a felony may be expunged in North Dakota include:

• The sentence and probation must be completed
• The waiting period of 10 years must have elapsed with no new charges
• The petition must show good cause and rehabilitation
• Serious felonies and violent crimes are excluded
• Expungement may be granted only once every 15 years for felonies

Do Sealed Records Show up In North Dakota Background Checks?

No, sealed criminal records do not show up on background checks in North Dakota. Upon granting the petition, the issuing court typically orders state agencies in possession of the criminal record to deny public requests to view the records. However, this order is only binding on custodians within the state’s jurisdiction. Bear in mind that the law does not allow the sealing of certain information in criminal records. These ineligible records are part of reports submitted to the Bureau of Criminal Information (BCI) and its affiliates.

Who may See Sealed Criminal Records in North Dakota?

Only the record custodian may see sealed criminal records in North Dakota. Other private entities and even government agencies must obtain a court order to access sealed criminal records.

How may I Get My Record Expunged for Free in North Dakota?

The cost of getting a record expunged in North Dakota depends on a number of factors. These include the number of charges, case disposition, and whether they qualify for waivers. For instance, individuals seeking to have a record expunged must pay a filing fee of $50 and an expungement fee of $250. Moreover, individuals seeking to expunge conviction records would require a certified copy of the conviction, which may cost between $15 and $25. They also require fingerprinting and a background check, which could cost between $10 and $15.

Additionally, some parties may require the services of an attorney. This may increase the overall cost. However, some petitioners who do not have a robust financial capacity and are able to demonstrate this may benefit from pro bono or low-cost services. Through the North Dakota State Bar Association, they may be matched with a pro bono lawyer. They may also utilize resources provided by the North Dakota Legal Self-Help Centre. Petitioners with limited funds may also explore non-profit organizations in the state for help with legal advice, legal representation, and documentation.

Expungement petitions in North Dakota may include details such as:

• The name of the applicant
• Date of birth
• Social Security Number
• Specific charges for which they seek expungement
• Results of the charges in court

How to Obtain Sealed Records in North Dakota

Unless otherwise provided by state statutes, requesters generally have to petition the court to unseal the record before the record custodian grants access to such a record. The requester is often required to demonstrate reasons that outweigh the subject’s privacy concerns or the statutory basis of sealing. In selected cases, a court order cannot unseal a criminal record. An example is sealed records of first offender marijuana possession, as stated in N. D. Cent. Code § 19–03.1–23(9).

Records that are considered public may be accessible from some third-party websites. Operating independently of any federal, state, or local agency, such websites may simplify the search process as they are not limited by geographic location. In addition, third-party sites typically have search engines that may be used for filtering specific or multiple records. To use third-party or government websites, interested parties may need to provide:

• The name of the person involved in the record, unless said person is a juvenile
• The location or assumed location of the record or person involved. This includes information such as the city, county, or state that the person resides in or was accused in

However, third-party sites are independent of government sources and are not sponsored by these government agencies. Because of this, record availability cannot be guaranteed.