Friday, August 20, 2010

Expungement in South Dakota

During the 2010 South Dakota legislative session, a bill (HB 1105) providing for expungement was passed and signed into law. That law has since been codified at S.D.C.L. 23A-3-26 through 23A-3-33. The law is clear that expungement, as provided for in South Dakota, merely seals records and does not actually destroy physical records. Sealing of records means that those records may only be accessed by order of the court. Individuals may seek expungement of arrests occurring at any time before or after the statutes' effective date of July 1, 2010. There is no statute of limitations on expungement of arrests.

The new law provides for expungement of arrest records after one year from the date of the arrest if the State has not filed an information or indictment. Arrest records may also be expunged at any time after an acquittal. Although not specifically addressed in the statutes, it appears that upon granting a motion for expungement, any and all court records may also expunged. I come to this conclusion, as 23A-3-32 makes clear that the purpose of the statutes is to restore "a defendant or arrested person" "to the status the person occupied before the person's arrest or indictment or information." However, guidance from the State Court Administrator, as published in the July 2010 issue of the State Bar newsletter states that, "[t]he motion and any proposed order should clearly identify the records sought to be expunged." Therefore, if an individual would also like the court records sealed, the motion must so state.

Motions for expungement are treated as civil filings, and begin a new civil case. Therefore, civil filing fees and a civil case filing statement are required. Guidance, as to how expungement motions are to be captioned, was also provided in that same issue of the State Bar newsletter. Motions for expungement are to be served upon the prosecuting attorney who prosecuted the crime or violation, or who had authority to prosecute the charge if there was no information or indictment filed.

What is truly interesting about the expungement provisions in South Dakota's law is that individuals are no longer required to disclose arrests, informations, or indictments after those records have been expunged. S.D.C.L. 23A-3-32 specifically states that, "[n]o person as to whom an order of expungement has been entered shall be held thereafter under any provision of any law to be guilty of perjury or of giving a false statement by reason of the person's failure to recite or acknowledge the person's arrest, indictment or information, or trial in response to any inquiry made of the person for any purpose."


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