Montana just authorized expungement of adult convictions

For the first time in its history, Montana has enacted a law authorizing its courts to limitfish public access to adult conviction records. On April 13, Governor Steve Bullock signed into law House Bill 168, giving district courts the power to “expunge” the records of misdemeanor convictions after completion of sentence, effective October 1 of this year. This makes Montana the 30th state since 2012 to enact some form of record-closing law, or to expand an existing one. The possibility of full destruction of the record for all misdemeanor convictions makes Montana’s one of the more ambitious collateral consequences reform measures of the past several years.

Unlike other recent record-closing laws that exclude certain types of minor offenses (e.g., Missouri‘s new expungement law excludes violent, sex, and driving offenses) or offer only limited relief (e.g., New York’s new sealing statute allows access for a variety of purposes), Montana’s law gives anyone convicted of misdemeanors, no matter how many or how serious, a one-time opportunity to clear their record entirely.  The new law provides that expungement means “to permanently destroy, delete, or erase a record of an offense from the criminal history record information system maintained by the department of justice in a manner that is appropriate for the record’s physical or electronic form.”  There is no exception for law enforcement, much less for licensing or employment, and only a person’s fingerprints remain “for investigative purposes.”

While no more than one expungement order is permitted under the new law during a person’s lifetime, it appears that multiple misdemeanors from different counties may be sealed in a single proceeding. Currently, the only records that may be expunged in Montana are those that do not result in conviction. Even the records of deferred adjudication cases may only be sealed, not expunged.

For all but certain specified serious crimes, expungement is “presumed” unless “the interests of public safety demand otherwise” — if five crime-free years have passed since completion of sentence, or if the petitioner is seeking opportunities for military service that are otherwise closed to him and is not currently charged with a crime.  The presumption in favor of relief absent a public safety finding is similar to the new Missouri and Indiana expungement laws.

Even for the crimes for which expungement is not presumed, the court may grant a petition after a hearing, in which the court “must consider, in addition to any other factors, the age of the petitioner at the time the offense was committed, the length of time between the offense and the request, the rehabilitation of the petitioner, and the likelihood that the person will reoffend.” In these cases, “the prosecution office that prosecuted the offense for which expungement is being requested must be notified of the request and be given an opportunity to respond and argue against the expungement.”