Mont. Code Ann. § 46-23-510 deals with expungement of records on reversal of conviction. The statute says: “Upon final reversal of a conviction of a sexual or violent offense, the sentencing court shall order the expungement of any records kept by a court, law enforcement agency, or other state or local government agency under this part.”
The petition and the sections next to it
Mont. Code Ann. § 16-12-113 deals with decriminalized acts -- petition for expungement or resentencing -- retroactive application. The subsections are what a petition has to satisfy.
Read Mont. Code Ann. § 46-18-1104 when the issue is who may ask. The statute says: “(1) A person convicted of one or more misdemeanor offenses, whether in one court or multiple courts and whether in one case or multiple cases, and who has not had the person's records expunged under this part previously, may…”
On expungement orders, the Montana text is Mont. Code Ann. § 46-18-1110. The statute says: “(1) When multiple misdemeanor offenses are requested to be expunged, the court may order expungement of all, some, or none of the misdemeanor offenses.”
Montana uses Mont. Code Ann. § 46-18-1107 for when expungement presumed. The statute says: “Expungement is presumed if the person requesting expungement is not currently being detained for the commission of an offense, is not charged with the commission of an offense, and does not have charges pending for the commission of a new…”
When a different section applies
Mont. Code Ann. § 33-18-612 deals with refund for expunged record. The statute says: “An insurance company that charges an additional premium based on insurance points assessed against a policyholder as a result of a charge or conviction that was expunged because of identity theft pursuant to 46-24-219 shall refund the…”
What the courts have done
State OF Montana v. Ray Lewis Bowles, 284 Mont. 490 (1997) is worth reading in full. The opinion puts it this way: “Therefore, unlike in Lorash, the expungement provision of § 61-8-714(5), MCA (1981), required as a matter of law that Bowles’ 1977 DUI conviction be expunged.”
State OF Montana v. Dustin Chesley, 322 Mont. 26 (2004) is worth reading in full. The opinion puts it this way: “Moreover, the State contends that this Court has always regarded expunction of criminal records as a matter of legislative prerogative and may only be granted or withdrawn by the legislature.”
State OF Montana v. William Dennis Cleary, 365 Mont. 142 (2012) is worth reading in full. The opinion puts it this way: “Cleary’s South Dakota offense was neither a conviction nor a sentence for Montana purposes, and its expungement precluded it from being counted as a prior conviction for felony enhancement.”
Before you file
- Open Mont. Code Ann. § 46-23-510 and read the part on expungement of records on reversal of conviction. Everything else in the filing has to fit that section.
- Ask the clerk which local form that Montana county uses, then check the form against Mont. Code Ann. § 46-23-510.
- Then read State OF Montana v. Ray Lewis Bowles, 284 Mont. 490 (1997). That is a Montana court already applying this kind of request.
Frequently asked questions
How do you expunge a criminal record in Montana?
Read Mont. Code Ann. § 46-23-510 when the issue is expungement of records on reversal of conviction. The statute says: “Upon final reversal of a conviction of a sexual or violent offense, the sentencing court shall order the expungement of any records kept by a court, law enforcement agency, or other state or local government agency under this part.”
How have Montana courts ruled on expungement?
State OF Montana v. Ray Lewis Bowles, 284 Mont. 490 (1997) “Therefore, unlike in Lorash, the expungement provision of § 61-8-714(5), MCA (1981), required as a matter of law that Bowles’ 1977 DUI conviction be expunged.”
Montana clerks still control the form and the fee. Mont. Code Ann. § 46-23-510 is the statewide rule on who may ask and what the order does.