Read S.D. Codified Laws § 23A-3-27 when the issue is expunging an arrest record. The statute says: “An arrested person may apply to the court that would have jurisdiction over the crime for which the person was arrested, for entry of an order expunging the record of the arrest: (1) After one year from the date of any arrest, if no accusatory instrument was filed; (2) After…”
South Dakota uses S.D. Codified Laws § 23A-3-32 for what the order does. Read it for what a granted order changes. The statute says: “The effect of an order of expungement is to restore the defendant or arrested person, in the contemplation of the law, to the status the person occupied before the person's arrest or indictment or information.”
What an order changes
On who may ask, the South Dakota text is S.D. Codified Laws § 23A-3-35. The statute says: “If an arrested person is placed in a diversion program, the person is eligible for an expungement of the entire criminal record related to that arrest if: (1) The person has successfully completed all the terms of the diversion program; and (2) The person has not been charged…”
Read S.D. Codified Laws § 23A-3-30 when the issue is order of expungement. The statute says: “The court may enter an order of expungement upon a showing by the defendant or the arrested person by clear and convincing evidence that the ends of justice and the best interest of the public as well as the defendant or the arrested person will be served by the entry of the order.”
Read S.D. Codified Laws § 23A-3-29 when the issue is hearing on motion for expungement. The statute says: “The court may fix a time and place for a hearing on the motion unless waived by the defendant, arrested person, prosecuting attorney, and…”
S.D. Codified Laws § 23-5A-29 deals with expungement of record--Receipt of court order--Exception. The statute says: “Upon receipt of written request for expungement; certified copy of the final court order reversing and dismissing the conviction or delinquency adjudication; and any other information necessary to ascertain the validity of the request, the South Dakota State Forensic Laboratory…”
The petition and the sections next to it
Where petitions fail
In the Matter of the Revocation of the Parole of Willie Williams III — Henderson, 1992 S.D. LEXIS 94 (1992) is worth reading in full. The opinion puts it this way: “The fraudulent check charges resulted from this seizure; the South Carolina court set aside the conviction, in its entirety, and the Board should have recognized the South Carolina order.”
Read in this order
- Open S.D. Codified Laws § 23A-3-27 and read the part on expunging an arrest record. Everything else in the filing has to fit that section.
- Use S.D. Codified Laws § 23A-3-29 for the mechanics. It is hearing on motion for expungement, which is not the same question as whether the record qualifies.
- If the court grants the petition, S.D. Codified Laws § 23A-3-32 is what the order actually changes.
- Then read In the Matter of the Revocation of the Parole of Willie Williams III — Henderson, 1992 S.D. LEXIS 94 (1992). That is a South Dakota court already applying this kind of request.
Frequently asked questions
How do you expunge a criminal record in South Dakota?
S.D. Codified Laws § 23A-3-27 deals with expunging an arrest record. The statute says: “An arrested person may apply to the court that would have jurisdiction over the crime for which the person was arrested, for entry of an order expunging the record of the arrest: (1) After one year from the date of any arrest, if no accusatory instrument was filed; (2) After…”
What does a granted South Dakota order change?
Read S.D. Codified Laws § 23A-3-32 when the issue is what the order does. Read it for what a granted order changes. The statute says: “The effect of an order of expungement is to restore the defendant or arrested person, in the contemplation of the law, to the status the person occupied before the person's arrest or indictment or information.”
What does a South Dakota petition have to contain?
South Dakota uses S.D. Codified Laws § 23A-3-29 for hearing on motion for expungement. The statute says: “The court may fix a time and place for a hearing on the motion unless waived by the defendant, arrested person, prosecuting attorney, and…”
How have South Dakota courts ruled on expungement?
In the Matter of the Revocation of the Parole of Willie Williams III — Henderson, 1992 S.D. LEXIS 94 (1992) “The fraudulent check charges resulted from this seizure; the South Carolina court set aside the conviction, in its entirety, and the Board should have recognized the South Carolina order.”
County practice in South Dakota can add a local form. It cannot replace S.D. Codified Laws § 23A-3-27.