North Dakota Code 12-60.1-04 – Hearing on petition
1. The court may grant a petition to seal a criminal record if the court determines by clear and convincing evidence:
Terms Used In North Dakota Code 12-60.1-04
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- following: when used by way of reference to a chapter or other part of a statute means the next preceding or next following chapter or other part. See North Dakota Code 1-01-49
- Individual: means a human being. See North Dakota Code 1-01-49
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Probation: A sentencing alternative to imprisonment in which the court releases convicted defendants under supervision as long as certain conditions are observed.
- Restitution: The court-ordered payment of money by the defendant to the victim for damages caused by the criminal action.
- seal: includes an impression of such seal upon the paper alone as well as upon wax or a wafer affixed thereto. See North Dakota Code 1-01-38
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See North Dakota Code 1-01-49
a. The petitioner has shown good cause for granting the petition; b. The benefit to the petitioner outweighs the presumption of openness of the criminal record; c. The petitioner has completed all terms of imprisonment and probation for the offense; d. The petitioner has paid all restitution ordered by the court for commission of the offense; e. The petitioner has demonstrated reformation warranting relief; and
f. The petition complies with the requirements of this chapter.
2. In determining whether to grant a petition, the court shall consider:
a. The nature and severity of the underlying crime that would be sealed; b. The risk the petitioner poses to society; c. The length of time since the petitioner committed the offense; d. The petitioner’s rehabilitation since the offense; e. Aggravating or mitigating factors relating to the underlying crime, including factors outlined in section 12.1-32-04; f. The petitioner’s criminal record, employment history, and community involvement; g. The recommendations of law enforcement, prosecutors, corrections officials, and those familiar with the petitioner and the offense; and
h. The recommendations of victims of the offense.
3. A hearing on the petition may not be held earlier than forty-five days following the filing of the petition.
4. To the extent practicable, upon receipt of a petition to seal a criminal record, the prosecutor shall notify and seek input from law enforcement, witnesses, victims, and correctional authorities familiar with the petitioner and the offense.
5. This section does not prohibit a prosecutor from stipulating to seal a criminal record without a hearing or more expeditiously than provided in this section.
6. An individual may not appeal a denial of a petition from a district judge or magistrate.
7. An individual aggrieved by denial of a petition in a municipal court may appeal the denial to the district court for de novo review without payment of a filing fee. A petition denied by the district court may not be appealed.
8. Except as provided in this section and if good cause is shown, a district court denying a petition may prohibit a petitioner from filing a subsequent petition to seal a criminal record for up to three years following the denial. The order denying the petition must provide the reasons establishing good cause for prohibiting the petition.
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, and shall release the information when an entity has a statutory obligation to conduct a criminal history background check.