Expungement and record sealing are a means for someone who has been convicted of a crime or who has been arrested to have court records rendered inaccessible to the public. Once the record is expunged, you can state without fear of perjury that you have never been arrested or convicted of that crime.
Disclosure of a criminal record is required in many applications for rental housing, loans, employment, and when applying for public benefits. By having your record sealed or expunged, your opportunities are greatly expanded.
What Is Expungement or Sealing?
Although expungement implies actual destruction of records, they are still accessible to law enforcement agencies and you are still required to disclose any convictions when applying for public employment or for a professional license.
In South Dakota, record sealing primarily refers to juvenile records. You may petition the court for sealing your juvenile records if a court has not found you to be a delinquent since the original case was terminated; no proceedings are pending against you regarding a felony or crime of moral turpitude; and the court is satisfied with your rehabilitation. Unlike with an expungement, when applying for public employment, you need not disclose any juvenile court adjudication of delinquency since it is not considered a criminal conviction.
Are You Eligible?
South Dakota law does allow for expungement of misdemeanors and felonies as well as drunk driving offenses provided you meet the age requirements or the offense occurred at least 10 years after all conditions of probation have been satisfied.
You may petition for expungement if you are at least 75 years old and the offense occurred 10 years ago and have had no other convictions during this time, or if you have a misdemeanor offense that is at least 10 years old and no other criminal convictions. Also, any conviction for an offense that is no longer considered a crime qualifies for expungement.
If you were arrested, but no information or indictment was filed as a result of the arrest, you may ask that all your arrest records be expunged after one year from the arrest date. You may also request at any time an expungement of your court records pertaining to an offense for which you have been acquitted.
Certain convictions may not be expunged, including any offense concerning a minor; a felony sexual assault; any offense pertaining to a crime of moral turpitude; or any conviction for a Class A, B, or Class 1 or 2 felony.
You may be able to have a DUI record expunged if it was a misdemeanor and occurred 10 years from the date of final disposition, though you will have to undergo an alcohol evaluation and submit letters of recommendation and proof of sound moral character.
How Do You Go About Filing?
The expungement process begins by filing a motion for expungement in the court that had jurisdiction over your criminal matter and by paying the requisite filing fee. Your motion must be served on the prosecuting attorney or office that prosecuted you at least 14 days prior to the scheduled date to hear the motion. A civil case filing statement is also required. Your motion should identify the particular records that you want expunged.
If the prosecuting attorney consents to waive the hearing, none is held and the court may issue an order of expungement to be sent to the Division of Criminal Investigation. The order effectively restores you to the status you occupied before your arrest or indictment, including your right to gun ownership.
Consult a South Dakota Expungement Attorney
Expungement and record sealing laws are complex, and the process is often difficult. Consult with a South Dakota expungement and record sealing attorney to see what options are available in your particular situation.