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 with the advent of electronic records—anyone with an internet connection can 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, before the court can grant a petition to seal, the requestor 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 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, and the petitioner must 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, the individual must 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 must request 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 South Dakota Codified Laws requires that the petitioner serve the motion to the prosecuting attorney’s office. The petitioner must 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.

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 will remain 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. The court shall order agencies in possession of the criminal record to deny public requests to view the records. 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 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.