Revised: September 5, 2024

I.  Loss & restoration of civil/firearms rights

A.  Civil Rights

The rights to vote and to hold public office are lost upon conviction of a felony and a sentence to imprisonment “during the term of actual incarceration.”  N.D. Cent. Code § 12.1-33-01.  Both rights are restored upon release from prison, and the sentence shall state that those rights are lost only during actual incarceration.  § 12.1-33-03(1).  Release from incarceration also restores the right to sit on a jury, except for certain offenses.  See § 27-09.1-08(2)(e).

B.  Firearms

Firearm rights are lost for a ten-year period upon conviction of a felony “involving violence or intimidation,” and five years for other felonies or a misdemeanor “involving violence or intimidation.” N.D. Cent. Code §§ 62.1-02-01(1)(a), (b).  Whether a particular offense is a felony is determined under the law of the jurisdiction of conviction.  State ex rel. Olson v. Langer, 256 N.W. 377, 388-89 (N.D. 1934). The disqualification period is based on the date of conviction or date of release from incarceration, parole, or probation, whichever is latest. § 62.1-02-01(1). Under a law passed in 2011, persons with a felony offense subject to the five-year bar may petition the court in their county of residence for restoration of firearms rights.  § 62.1-02-01.1.  The court must determine by clear and convincing evidence that the individual has successfully completed all terms of his sentence and paid all fines, and that “[t]he individual’s record and reputation are such that the individual is not likely to act in a manner dangerous to the safety of others.”  § 62.1-02-01.1(2)(d).  The North Dakota Legal Self Help Center created an information guide to the restoration process, found here (last revised March 2020). It is not clear whether a pardon will also restore firearms rights.  

II.  Pardon policy & practice

A.  Authority

The state constitution vests the pardon power (except in cases of treason or impeachment) in the governor.  N.D. Const. art. 5, § 7.  The governor may (but is not required to) appoint a “pardon advisory board,” consisting of the state attorney general, two members of the Parole Board, and two citizens.  N.D. Cent. Code § 12-55.1-02.¹  The Pardon Advisory Board is staffed by a “pardon clerk,” a designee of the director of the department of corrections and rehabilitation.  See § 12-55.1-05.  The PAB website is at https://www.docr.nd.gov/pardon-advisory-board. 

The Pardon Advisory Board is not an administrative agency as defined under N.D. Cent. Code § 28-32-01(2)(a) and is not subject to the Administrative Agencies Practice Act.  N.D. Cent. Code § 28-32-01(2)(n); Pardon Advisory Board Directive 1A-14, N.D. Dep’t of Corr. & Rehab., 5(F) (July 10, 2019).  Any rules the Board may adopt need not be published in the North Dakota Administrative Code.  Id. 

B.  Eligibility

There are no general eligibility requirements for people with North Dakota offenses.  Cf. the 2019 program on marijuana possession convictions, which require a 5-year conviction-free period.  Persons convicted under federal law or the laws of another state are ineligible for a state pardon. Pardon Advisory Board Directive 1A-14, N.D. Dep’t of Corr. & Rehab., 5(K)(1), 

C.  Standards for relief

An online version of the application form is available at North Dakota Pardon Advisory Board Application (published February 2020).  Under the applicable Pardon Advisory Board directive, the Board considers “any new mitigating information regarding the conviction, including the impact of substance abuse and behavioral health issues on the applicant and/or the conviction, the applicant’s efforts to address substance abuse and behavioral health issues and needs, the personal and social development and achievement of the applicant, and any significant problems or circumstances the applicant may be encountering due to the conviction” Pardon Advisory Board Directive 1A-14, N.D. Dep’t of Corr. & Rehab., 5(A).  Under the previous version of the PAB rules, “need” for relief was given paramount consideration, but now is simply one among several considerations.  

Marijuana possession pardons:  In 2019 the pardon board policy was revised to authorize people convicted of marijuana possession who have had no convictions in the past five years to “submit a Summary Pardon Application.”  An application form is available here (published February 2020).  In 2020, the governor pardoned 40 people pursuant to this new authority, see Bismarck Tribune, Nov. 24, 2020, Governor approves 2nd round of marijuana pardons; and by 2023 he had pardoned a total of about 100 people convicted of marijuana possession, see Group Files Petitions to Put Recreational Marijuana on North Dakota’s November Ballot, Associated Press, July 8, 2024.   

D.  Effect

Ordinarily a pardon relieves collateral legal penalties, but it does not expunge conviction.  N.D. Cent. Code § 12-55.1-01(4).  See also Attorney General’s Opinion, No. 85-44, 1985 WL 257704 (Dec. 03, 1985) (“[A] pardon acts to remove the punishment resulting from a criminal conviction, but does not act to remove the fact of guilt and other circumstances surrounding the commission of the crime.”).  A pardoned conviction may be used as a predicate offense or to enhance a sentence for a subsequent crime.  See State v. Webb, 162 N.W. 358, 361 (N.D. 1917) (“The courts have uniformly held that the fact that the accused was pardoned [for a prior conviction] does not exempt him from increased punishment on a subsequent conviction.”).  The North Dakota Bureau of Criminal Investigation and the court system’s public website will both reflect the pardon. It is not clear whether a pardon will restore firearms rights. 

E.  Process

The Pardon Advisory Board meets twice a year to consider cases, and applications must be filed at least 90 days in advance.  Pardon Advisory Board Directive 1A-14, 5(L)(2), N.D. Dep’t of Corr. & Rehab.   The application form is available here on the Pardon Advisory Board website. After the application is filed, the pardon clerk must notify the sentencing judge and the state’s attorneys in the county where the applicant was convicted, and they in turn may file their recommendations with the Board.  N.D. Cent. Code §§ 12-55.1-07, -09.  The pardon clerk also directs field investigations and prepares a packet of cases for the Board’s semi-annual meeting.  § 12-55.1-05.  Pardon Advisory Board Directive 1A-14, N.D. Dep’t of Corr. & Rehab., 5(F) (July 10, 2019). There is no provision for a personal appearance, but the board may interview the applicant.  Pardon Advisory Board Directive, supra, at 5(L)(5).  State law provides for reconsideration and revocation of the pardon within 30 days of the decision.  § 12-55.1-08; Directive, supra, at 5(L)(8). An applicant may not reapply for a period of one year or longer if provided in the denial issued by the Governor. Pardon Advisory Board Directive, 5(L)(7).

F.  Frequency of grants

Governor Doug Burgum pardoned about 100 individuals under the program to approve pardons for those convicted of marijuana possession, described in section IIC above.  

Other than those cases, Governor Burgum has pardoned several dozen individuals pursuant to recommendations of the Pardon Advisory Board, but information on total number of grants during his administration can no longer be found on the Board’s website. In earlier years, some information was available from this source, but overall it appears that the number of grants in this century have been modest.  For example, according to earlier postings on the Board’s website, between 2008 and December 2012, the Board reviewed 259 pardon applications, and the governor granted eight pardons. Source: North Dakota Pardon Advisory Board.

Contact

Pardon Clerk, North Dakota Pardon Advisory Board
P.O. Box 1898
Bismarck, ND 58502-1898
701-328-6651 (phone)
pardeonclerk@nd.gov

https://www.docr.nd.gov/pardon-advisory-board

III.  Expungement, sealing & other record relief

A.  General sealing under 2019 law

Until 2019, North Dakota had no general authority to seal conviction records, and very limited authority to limit public access even to non-conviction records.  With the enactment of HB1246 in April 2019, that changed dramatically.  The law created a new Chapter 12-60.1 authorizing people with both misdemeanor and felony offenses to apply for sealing after a charge-free waiting period of three orand five year from the date of last release period, respectively, as long as the sentence has been completed and all restitution has been paid.  N. D. Cent. Code §§ 12-60.1-02(1), 12-60.1-04. Anyone convicted of a felony involving violence or intimidation may not seek to have their record sealed during the 10-year period in which they may  not possess a firearm under N.D. Cent. Code § 62.1-02-01(1)(a) (see above).  It does not apply to anyone required by the court to register as a sexually violent offender.   

In 2021 the waiting periods were relaxed to run from the date of guilty plea or finding and to require no new conviction (as opposed to no new charge) during that time. See HB 1196 (2021). 

Procedure:  A petition to seal must be filed in the original criminal court, and the procedure is described in N. D. Cent. Code § 12-60.1-03.   The court may grant the petition if it finds by clear and convincing evidence that the petitioner has made a showing of good cause for granting the petition, that the petitioner has demonstrated “reformation warranting relief,” and that “[t]he benefit to the petitioner outweighs the presumption of openness of the criminal record.”  § 12-60.1-04. Also, it may grant if it finds that the “petitioner has completed all terms of imprisonment and probation for the offense,” and “has paid all restitution ordered by the court for commission of the offense,” which appears to mean that fines and fees need not be paid.  § 12-60.1-04(6). 

A series of criteria to be applied by the court are set forth in the statute, including such standard aggravating and mitigating factors as the seriousness of the crime, the age of the petitioner when it was committed, rehabilitation, etc.  § 12-60.1-04(2). The court must notify the prosecutor and any victims, and the prosecutor may “stipulat[e] to seal a criminal record without a hearing or more expeditiously than provided in this section.”  § 12-60.1-04(5).  There is no appeal from a denial of relief from a district court (denial by a municipal court may be appealed to the district court) and if denied a person must wait three years to reapply.  The 2021 amendments to the law described above modified this three-year waiting period, making it dependent on the court finding good cause to require a waiting period, and requiring the court to state its reasons.  See HB 1196 (2021). 

Effect:  “Seal” is defined as “to prohibit the disclosure of the existence or contents of court or prosecution records unless authorized by court order.”  The effect of sealing is described in  § 12.1-32-07.2(2).  The clerk of the court must seal the records, with access only available to the clerk; a judge; the juvenile commissioner; probation officers; the defendant and their counsel; and the state’s attorney.  See also § 12-60.1-04(9):

If a court grants a petition to seal a criminal record, the court shall state in the court order that the petitioner is sufficiently rehabilitated but is subject to the provisions of section 12.1-33-02.1 [on consideration of conviction in licensing], and shall release the information when an entity has a statutory obligation to conduct a criminal history background check. 

B.  Reduction of minor felonies to misdemeanors

North Dakota law provides that a minor state felony conviction may be reduced to a misdemeanor after service of sentence.  See N.D. Cent. Code § 12.1-32-02(9) (a person convicted of a felony and sentenced to imprisonment for not more than one year “is deemed to have been convicted of a misdemeanor” if an order is not entered revoking a term of probation).  The court may, on its own motion or upon petition, reduce a felony conviction to a misdemeanor when a plea of guilty has been withdrawn or set aside. § 12.1-32-07.1(2). Reduction of a felony conviction to a misdemeanor has the effect of releasing the defendant from all penalties and disabilities resulting from the offense, except for sex offender registration and firearms disabilities.

C.  Sealing for deferred imposition of sentence (deferred adjudication) 

After a guilty plea, “[a] court, upon application or its own motion, may defer imposition of sentence” and place a person on probation.  N.D. Cent. Code § 12.1-32-02(4).  “An order deferring imposition of sentence is reviewable upon appeal from a verdict or judgment.”  Id. Upon successful completion, the defendant is discharged, and the court in its discretion may set aside the guilty plea or verdict, and dismiss the charges.  § 12.1-32-07.1(2).  If the plea is withdrawn or the verdict set aside, the clerk of the court must seal the records, with access only available to the clerk; a judge; the juvenile commissioner; probation officers; the defendant and their counsel; and the state’s attorney.  Id. .   See State v. Siegel, 404 N.W.2d 469, 470-73 (N.D. 1987); cf. N.D. R. Crim. P. 32.1 (a file is sealed “61 days after expiration or termination of probation” for infractions and misdemeanors).  “In any subsequent prosecution . . . , the prior conviction for which imposition of sentence is deferred may be pleaded and proved, and has the same effect as if probation had not been granted or the information or indictment dismissed under § 12.1-32-07.1.”

D.  Sealing for first offender marijuana possession

First offenses for possession of one ounce or less of marijuana shall be sealed, upon motion, if the person has no further convictions for violating the controlled substances act within two years. N.D. Cent. Code § 19-03.1-23(9). The court record may not be opened after the sealing, even by order of the court. Id. 

E.  Sealing for victims of human trafficking

If convicted of prostitution or similar offense as a direct result of being a victim of trafficking, that individual can file a motion to vacate and seal the record of conviction. N.D. Cent. Code § 12.1-41-14(1). “The court may grant the motion on a finding that the individual’s participation in the offense was a direct result of being a victim.” Id.  The motion does not require official documentation that an individual was a victim, “but an official determination or documentation from a federal, state, local, or tribal agency that the individual was a victim at the time of the offense which creates a presumption that the individual’s participation was a direct result of being a victim.” Id. at -14(3). 

Juvenile adjudications for prostitution, theft and forgery, and drug possession linked to being a victim of human trafficking may be vacated and expunged. N.D. Cent. Code § 12.1-41-12, § 12.1-41-14.

F.  Sealing and expungement for non-conviction records

Inherent judicial authority to expunge unlawful arrests, dismissals, and acquittals: Under the North Dakota Supreme Court’s administrative rules, case records are confidential records if there was no probable cause for issuance of the complaint, if a record of deferred imposition of sentence or pretrial diversion after the matter was dismissed, or the record was sealed. N.D. Sup. Ct. Admin. R. 41(3)(b)(6).   

In addition, the court may, upon request, limit public internet access to a defendant’s electronic court record if the charges are dismissed or the defendant is acquitted.  N.D. Sup. Ct. Admin. R. 41(4)(a).   

A request to prohibit access may be made by any party to a case, or on the court’s own motion with notice to all parties. R. 41(4)(a). The court must decide whether there is an “overriding interest” to “overcome the presumption of openness of court records,” and the court must articulate this interest along with specific findings that allow a reviewing court to determine whether the order was proper.  Id.  The access restriction must be “no broader than necessary to protect the articulated interest” with the “least restrictive means” to achieve the purposes of the rule and the needs of the requestor.  Id.  If the court concludes, after conducting the balancing analysis and making findings, that “the interest of justice will be served,” it may prohibit public internet access to an individual defendant’s electronic court record in a criminal case, and the search result for the records must display the words “Internet Access Prohibited under N.D.Sup.Ct. Admin.R 41.”  Id.  There is also a process by which anyone may request access to records where access is prohibited, and the court weighs the same factors as above.  R. 41(4)(b)-(c).

The North Dakota Supreme Court has held that state courts have inherent authority to expunge arrest records only if the arrest is unlawful, and not in other cases where the charges are dismissed or in which the defendant has been acquitted.  State v. Howe, 308 N.W.2d 743, 749 (N.D. 1981) (“We hold that the courts of this state have the authority to order, and an arrestee who is not subsequently convicted is entitled to, expunction of arrest records when the arrest is unlawful in violation of the arrestee’s constitutional rights.”).

General executive branch restrictions on access to non-conviction records:  The Bureau of Criminal History Information may not disclose to the public non-conviction records that are more than three years old.  § 12-60-16.6(2). This authority presumably covers records of arrests that are not charged.

G.  Destruction of juvenile records

All files and records of the juvenile court are closed to the public and court records are only available to those with statutory access. N.D. Cent. Code, § 27-20.2-21(1) ; N.D.R. Juv. P. Rule 19(a).  Adjudication records are destroyed automatically 10 years after satisfaction of the final order in the case, or upon the individual’s 18th birthday (whichever is later).  See N.D. Sup. Ct. Admin. R., Record Records Retention Schedule.  An individual may petition for destruction of juvenile records at any time so long as no charges are pending, upon a showing of good cause.  N.D.R. Juv. P. Rule 19(d).   Once destroyed, a record is treated as if it never existed.  N.D. Cent. Code § 27-20-20.2-25(2).  

See also authority to vacate and expunge juvenile adjudications for prostitution, theft and forgery, and drug possession linked to being victim of human trafficking. N.D. Cent. Code § 12.1-41-12, § 12.1-41-14.

IV.  Criminal record in employment & licensing

A.  Employment

Ban-the-box in public employment: In 2019, North Dakota enacted a law banning inquiries into or consideration of criminal history by public employers “until the applicant has been selected for an interview by the employer.”  N.D. Cent. Code § 12.1-33-02.2.   The law does not apply to the department of corrections or to “a public employer that has a statutory duty to conduct a criminal history background check or otherwise take into consideration a potential employee’s criminal history during the hiring process.”  Id. The term “public employer” means “the state or a county or city government, or an instrumentality or agency of the state or of a county or city government. The term includes a park district but does not include a school district.” Id.   

B.  Occupational, professional and business licensing

N.D. Cent. Code § 12.1-33-02.1 (“Prior conviction of a crime not bar to state licensures”) provides:

A person may not be disqualified to practice, pursue, or engage in any occupation, trade, or profession for which a license, permit, certificate, or registration is required from any state agency, board, commission, or department solely because of prior conviction of an offense. However, a person may be denied a license, permit, certificate, or registration because of prior conviction of an offense if it is determined that such person has not been sufficiently rehabilitated, or that the offense has a direct bearing upon a person’s ability to serve the public in the specific occupation, trade, or profession.

A state agency, board, commission, or department shall consider the following in determining sufficient rehabilitation:

1. The nature of the offense and whether it has a direct bearing upon the qualifications, functions, or duties of the specific occupation, trade, or profession.
2. Information pertaining to the degree of rehabilitation of the convicted person.
3. The time elapsed since the conviction or release. Completion of a period of five years after final discharge or release from any term of probation, parole or other form of community corrections, or imprisonment, without subsequent conviction shall be deemed prima facie evidence of sufficient rehabilitation.
4. If conviction of an offense is used in whole or in part as a basis for disqualification of a person, such disqualification shall be in writing and shall specifically state the evidence presented and the reasons for disqualification. A copy of such disqualification shall be sent to the applicant by certified mail.
5. A person desiring to appeal from a final decision by any state agency, board, commission, or department shall follow the procedure provided by the chapter of this code regulating the specific occupation, trade, or profession. If no appeal or review procedure is provided by such chapter, an appeal may be taken in accordance with chapter 28-32, except for attorneys disbarred or suspended under chapter 27-14.

The “direct bearing” standard and “rehabilitation” tests of this statute are incorporated into dozens of occupational, professional, and business licensing statutes in the North Dakota Century Code, including:  liquor licenses (§ 5-03-01.1), teachers (§§ 15.1-13-25(1)(d), (e)), residential treatment centers for children (§ 25-03.2-04), architects and landscape architects (§ 43-03-13(2)(a)), lawyers (§ 27-11-03.1 ), barbers (§ 43-04-31.1), electricians (§ 43-09-09.1), funeral service directors (§ 43-10-11.1), and pharmacists (§ 43-15-18.1).

 

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1. Until a 1996 constitutional amendment, the pardon power in North Dakota was exercised by the Board of Pardons, composed of the governor, the Attorney General, the Chief Justice, and two appointees of the governor.  See  N.D. Const.  art. 5, § 6 (1995).  The Board’s procedures and administrative processes were detailed in N.D. Cent. Code § 12-55-01 et seq. (1995)(repealed).  See Nat’l Governors’ Ass’n, Guide to Executive Clemency Among the American States 122-24 (1988).