Sealing and Expunging Criminal Records in South Dakota

Given the social implications of having a publicly accessible criminal record, most criminal record holders often seek to seal or expunge their criminal histories. In South Dakota, these records are created and maintained by criminal justice agencies, and they are available to interested members of the public per the South Dakota Open Records Law. Thus, prospective employers, members of the press, and anyone with an internet connection may access and obtain criminal records from the record custodian. However, when a state statute restricts it or a court order directs the sealing of a record, it ceases to exist in public domains.

The Difference Between Sealing and Expunging Criminal Records

Although the terms sealing and expungement are fundamentally different, people often use these terms interchangeably. Typically, expungement means the physical and absolute destruction of a record. However, this does not apply under South Dakota laws.

Per Section 23 A–3–26 of South Dakota Codified Laws, expungement is the sealing of all records held by any judicial, correctional facility, law enforcement, or criminal justice agency. The information contained in these records typically includes details of the individual’s arrest, detention, trial, or disposition within South Dakota’s jurisdiction.

Eligibility Requirements to Expunge or Seal a Criminal Record in South Dakota

According to the provisions of South Dakota state laws, in order for courts to consider a petition to seal, the requester or record holder must be at least 75 years old and have not committed an offense in ten years. However, under certain conditions, the court may consider a petition to expunge a criminal record even if all eligibility requirements are not met. The Director of the Bureau of Criminal Statistics may order the erasure of information and records of:

• Individuals who are dead
• Criminal convictions pardoned by the Governor
• Incidents that are no longer crimes under South Dakota laws
• Misdemeanor offenses that occured at least ten years before the date of the petition.

Likewise, the law allows the expungement of arrest records of:

• Indictments that did not result in a conviction (eligible after one year)
• Cases after formal dismissal by the prosecuting attorney (eligible after one year)
• Indictments that resulted in an acquittal (no waiting period)

How to Seal or Expunge a Criminal Record in South Dakota

While the procedure to expunge a South Dakota record is not complicated, it is often best to engage the services of a legal professional. Expungement laws are not set in stone and frequently change with time. An experienced attorney is informed on the current requirements, and he or she may offer insights on the merits of the case. Nevertheless, an individual who has access to information may complete the process. Although the road to expungement is not complicated, the process can take a long time. Petitioners are advised to pay attention to the fine print.

The first step is for the petitioner to obtain their criminal history information from the Division of Criminal Investigation. To do this, download and complete the authorization and release form. Then, attach a government-issued photo ID and a money order or check for a $24.00 processing fee to the form. Enclose the documents in a self-addressed stamped envelope and direct the mail request to:

Office of the Attorney General
Division of Criminal Investigation
1302 E. Highway 14, Suite 5
Pierre, SD 57501
Phone: (605) 773–3331

Per SDCL 23A–3–27, eligible parties may continue the process for expungement by filing a motion to expunge with the Clerk of Court that had, or would have had, jurisdiction over the criminal case. As South Dakota considers a motion to expunge as a civil filing, the individual must pay the applicable filing fee of $70.00. Otherwise, he or she may be able to obtain a waiver from the Clerk of Courts. Following the filing, the court shall schedule a hearing date for the expungement proceedings.

Meanwhile, section 23A–3–28 of the South Dakota Codified Laws requires that the petitioner serve the motion to the prosecuting attorney’s office. Petitioners are typically advised to complete the service of process at least 14 days before the hearing date. The court shall waive the expungement proceedings if the petitioner, prosecuting attorney, and victim unequivocally consent to waive the hearing. Nevertheless, the presiding judge shall consider several factors and the reason for filing the motion before making a decision. If the judge grants the motion, the court shall send a nonpublic record of the disposition to the Division of Criminal Investigation. The court order shall describe the specific record(s) that the agency must expunge.

Can a Felony Be Expunged in South Dakota?

Individuals with felony convictions in South Dakota face multiple challenges. Therefore, clearing a felony conviction record opens the individual to once elusive opportunities. These include opportunities in employment, education, travel, and housing. In South Dakota, felony records may be cleared through three pathways: pardon, exceptional pardon (SDCL 24-14-8), or suspended imposition of sentence (SDCL 23A-27-13).

Under South Dakota Codified Law (SDCL) Chapter 24-14, individuals with felony convictions who wish to obtain a pardon must apply to the South Dakota Board of Pardons and Paroles. The board will review the application and make a recommendation to the government. Periodically, the governor reviews the recommendations of the board and decides who deserves to be pardoned. If granted, the conviction record may be cleared. The individual must fill out and submit Form UJS-391, petitioning the court for expungement following the pardon.

To be eligible to apply for a pardon in South Dakota:

• One year must have passed since the conviction
• The individual must have paid all court-ordered fines and restitution.
• The offender must not have been denied pardon within the last year.

To be eligible for an exceptional pardon (SDCL 24-14-8):

• Five years must have passed since the release date
• Conviction was for not more than one felony
• Felony offence was non-violent and not punishable by life improvement

To be eligible for Suspended Imposition of Sentence (SDCL 23A-27-13)

• The individual was a first-time offender
• The individual pleaded guilty to a felony not punishable by death or life imprisonment
• The court placed the defendant on probation
• The individual has never been granted a suspended imposition of sentence.

Once the offender completes the probation and other terms, the record may be sealed without a pardon.

What Crimes Can Be Sealed or Expunged in South Dakota?

Per Section 23A–3–34, after ten (10) years, the state allows for the automatic expungement of charges or convictions if a petty offense, municipal ordinance violation, or a Class 2 misdemeanor is the highest indictment in the record. However, the offender must have satisfied all court-ordered conditions or penalties. While these records are not available to public requesters, the case record generally remains open to court personnel or entities armed with a court order.

Do Sealed Records Show up In South Dakota Background Checks?

No, sealed criminal records do not show up on background checks. Government agencies generally deny public requests to view documents that contain sealed information. However, this order is only binding on custodians within the state’s jurisdiction.

Who Can See Sealed Criminal Records in South Dakota?

Only the record custodian can see sealed criminal records in South Dakota. Other private entities and even government agencies must obtain a court order to access sealed criminal records.

How Can I Get My Record Expunged for Free in South Dakota?

There is no fee required to apply for a pardon in South Dakota. However, there are other costs involved in the overall process. The total cost to clear a felony record in South Dakota depends on the severity of the charges, case disposition, and whether the individual is self-representing or engaging the services of an attorney. The individual would require a background check, which costs about $50, notarised documents, and court fees. The cost implications may range from $600 to $2000 or more.

For indigent individuals, the South Dakota Judiciary has a portal for self-help resources, including expungement. They may also be eligible for pro bono legal services through the South Dakota Bar Association initiatives for low-income citizens. Self-representing petitioners may avail themselves of these.

It is typical for expungement petitions in South Dakota to contain certain information. These include:

• The name of the petitioner
• Date of arrest
• Social Security Number
• Case number
• Court of conviction
• The offense the individual was charged with
• Case disposition

How to Obtain Sealed Records in South Dakota

Except otherwise provided by state statutes, the requester must petition the court to unseal the record before the record custodian shall grant access to such a record. Usually, the requester is required to demonstrate reasons that outweigh the subject’s privacy concerns or the statutory basis of sealing.