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Deleting a public record refers to removing every trail or instance of the documentation of an event in government and public databases. By deleting a public record, no references can be made to it by any entity or body in the future. It would be as though the event listed on the record never occurred. Some public records such as conviction records and records of arrests can have negative impacts on the lives of individuals with such records. For instance, the state imposes restrictions on obtaining certain licenses on persons with criminal records. Such persons may also have trouble securing loans or finding jobs and housing.
However, South Dakota makes no provisions for persons to have public records deleted. The state does provide other forms of record relief. To help surmount barriers to housing, employment, and other hindrances to a productive life. South Dakota allows residents to have public records expunged. By expungement, records are removed from public access and can only be accessed in limited circumstances, making employment and housing easier to obtain.
What is a Public Record in South Dakota?
Pursuant to Chapter 1-27 of the South Dakota Codified Laws, a public record to include "all records and documents, regardless of physical form, of or belonging to this state, any county, municipality, political subdivision, or tax-supported district in this state, or any agency, branch, department, board, bureau, commission, council, subunit, or committee of any of the foregoing." Under this Chapter, all citizens of South Dakota, and all other persons interested in inspecting or obtaining public records are empowered to do so. Public records include:
- Birth records
- Death records
- Licensing records
- Court records
- Statistical data
- Voting records
South Dakota makes records of the government at all levels public in order to show its commitment to transparency in governance and to encourage participation in government from all residents. Some records are exempted from public disclosure, such as:
- Personal information of students or prospective students
- Medical records
- Trade secrets
- Attorney-client privilege
- Law enforcement records
- Appraisals of potential land sales or purchases
- Employee information, excluding salary and work contact information
- Security information
- Credit card and bank account information
- Library records
- Correspondence, memoranda, calendars, or logs of appointments, working papers, and records of telephone calls of public officials or employees
- Archaeological site information
- Applicant information
- Records that "would constitute an unreasonable release of personal information"
- Inmate record
Although South Dakota maintains the public nature of the majority of government records, provisions are also made for residents to have public records sealed if certain conditions are met. This process is usually achieved through a court order. We also offer record-sealing service to South Dakota citizens who wish to start new lives without the handicap of previous misdemeanors.
Does South Dakota allow Expungement?
Yes. South Dakota expungement statutes are found in sections 23A-3-26 through 33 of the SDCL. Pursuant to the statutes, an arrested person in South Dakota may apply to the court that has jurisdiction over the crime for which arrest was made, for entry of an order expunging the record of the arrest:
- After one year from the date of the arrest if no accusatory instrument was filed
- With the consent of the prosecuting attorney at any time after the prosecuting attorney formally dismisses the entire criminal case on the record
- At any time after an acquittal
South Dakota also allows for the expungement of misdemeanors and felonies, as well as drunk driving offenses, provided the individual is at least 75 years old, or the offense occurred at least 10 years after all conditions of probation have been satisfied, or date of sentencing if no jail time was served. A person may also be eligible for expungement of the crime committed is no longer a crime under South Dakota law.
In 2018, South Dakota added new sections to its expungement statute authorizing automatic expungement of arrests and charges in diverted cases where the defendant successfully completed conditions of diversion. Note that certain crimes are explicitly ineligible for expungement in South Dakota, these include any offense concerning a minor, a felony sexual assault, any offense relating to a crime of moral turpitude, Class A, Class B, Class 1, and Class 2 felonies.
Note that expungement in South Dakota does not imply physical destruction of records. Expungement is the sealing of all records on file within any court, detention, or correctional facility, law enforcement agency, criminal justice agency, or Department of Public Safety concerning a person's detection, apprehension, arrest, detention, trial, or disposition of an offense within the criminal justice system.
How do I Expunge My Criminal Record in South Dakota?
Below are the steps to petition for expungement in South Dakota:
- File a Motion for Expungement with the Clerk of Court for the court that had or would have had jurisdiction over the criminal matter sought to be expunged. Do not sign the form until you are in the presence of a Notary Public or Clerk of Court. Ensure to go along with identification to present to the Notary or Clerk.
- Complete a file a Case Statement Filing Form. The form can be found as both a fillable version or a written version on the South Dakota Unified Judiciary System website.
- Pay the applicable filing fee to the Clerk of Court in the county where the motion is filed. The fee is typically equal to the filing fee for a civil action. If you can establish to the court's satisfaction that you are indigent and unable to pay the filing fee, the court may waive the filing fee.
- Complete a draft Notice of Hearing for Expungement of Record with the date, time, and location and submit it to the Clerk. Then obtain certified copies of the Motion for Expungement and Notice of Hearing for Expungement of Record from the Clerkâ€™s Office and mail them to the office of the prosecuting attorney who prosecuted the crime or violation, or who had the authority to prosecute the charge if there was no accusatory instrument filed. The serving of the Motion on the prosecuting attorney should be done at least 14 days before any hearing on a motion for expungement. The prosecuting attorney may contest the motion in writing and at the hearing on the motion. Note that a hearing is not compulsory. The defendant, prosecuting attorney, and victim may all consent to waive the hearing.
- Complete the Waiver of Expungement Hearing Form if applicable. Note that you need one form for each of the four parties to fill out.
- If the court schedules a hearing, and expungement is ordered at the hearing by the court, provide the court with a draft Order of Expungement. The court will forward a nonpublic record of disposition to the Division of Criminal Investigation which will be retained only for use by law enforcement agencies, prosecuting attorneys, and courts in sentencing the defendant or the arrested person for subsequent offenses. The court will also order that all official records, other than the nonpublic records retained by the Division of Criminal Investigation, be sealed along with all records relating to the arrest, detention, indictment, information, trial, and disposition.
- Serve the prosecutor's office with the notice of the court's order on the prosecution's 30-day timeframe for appeal pursuant to SDCL 15-26A-6. Otherwise, the prosecution may timely appeal the Circuit Court's expungement order to the South Dakota Supreme Court several months or years after the court's expungement decision. Begin by completing the Notice of Entry of Order of Expungement Form and attach it to a certified copy of the court's Order of Expungement that you obtained from the Clerk's Office. Send both by first-class mail to the office of the prosecuting attorney. Complete the Affidavit of Mailing attached to the Motion for Expungement form to provide proof of mailed service on the prosecuting attorney's office and sign it before a Notary Public or Clerk. Submit all documents before the 30-day timeframe for an appeal to start.
Per Section 23A-3-33 of the South Dakota Codified Laws, there is no statute of limitation for making an application for expungement in South Dakota.
Will My Expungement Record Show up on a Background Check in South Dakota?
Having your arrest expunged would prevent employers, schools, or the general public from being able to find out about an arrest through a standard background check or on a non-FCRA compliant background check. However, an expungement does not prohibit law enforcement agencies from having access to prior criminal records. Â Expungement gives you the ability to have an arrest, not resulting in a conviction, removed from oneâ€™s criminal history. The effect of an expungement is to restore the defendant or arrested person to the status occupied before the arrest or indictment. Anyone who has obtained an expungement cannot be held guilty of perjury or giving of a false statement for failing to acknowledge the arrest or indictment which has been expunged.
How to Seal a Record in South Dakota
Section 23A-3-34 of the South Dakota Codified Laws authorizes an automatic removal from a defendant's public record of any charge or conviction resulting from minor misdemeanors and petty offenses after 10 years. Before the enactment of the law in 2016, the only mechanism for sealing conviction case records from public view was an executive pardon.
Under the 2016 sealing law, any charge or conviction resulting from a case where a petty offense, municipal ordinance violation, or a class 2 misdemeanor was the highest charged offense will be automatically sealed. Â However, this can be done after 10 years if all court-ordered conditions on the case have been satisfied.
South Dakota also offers "suspended imposition of sentence" or deferred adjudication for persons with no prior convictions charged with any felony or misdemeanor except those punishable by life imprisonment or death. Per Section 23A-27-13 (felony) and 23A-27-12.2 (misdemeanor) of the South Dakota Codified Laws, a court may suspend imposition of sentence and place an individual on probation. Upon successful completion of probation, the person will be discharged without an adjudication of guilt. The purpose of deferred adjudication is to allow first-time offenders to rehabilitate themselves without the trauma of imprisonment or the stigma of a conviction.
Juvenile delinquency records are also permitted to be sealed by the court one year after the juvenile is unconditionally released from the court's jurisdiction or discharged from the Department of Corrections, whichever occurs later.
A juvenile record may be automatically sealed by the court or upon a petition by the child, or the child's parent or guardian. When a petition is filed, the court schedules a hearing date and notified the state attorney and any other parties who may have relevant information about the child. Pursuant to Section 26A-7A-115 of the South Dakota Codified Laws, the court will grant a petition to seal a juvenile record upon finding out that:
- The delinquent juvenile has been adjudicated delinquent since the termination of the court's jurisdiction or discharge from the Department of Corrections;
- There have been no subsequent adjudications;
- No pending charges for a serious offense; and
- The youth is rehabilitated.
Who Can See My Sealed Record in South Dakota?
Sealed records are no available to almost all potential employers and the general public. However, they can still be accessed by law enforcement agencies or upon court order. Anyone who has had their records sealed will not be guilty under any provisions of South Dakota laws, of giving a false statement for failing to acknowledge such arrest, indictment or information, or trial record that has been sealed.
Sealed juvenile records may be accessed by the following persons:
- The juvenile who is the subject of the record
- The juvenile's attorney
- The juvenile's parent or guardian
- The South Dakota Corrections Department or detention facility personnel, if there is a legitimate interest in the child
- Court personnel
- Prospective employers upon court order. An exception exists if a juvenile or the juvenile's parent releases records to the military for purposes of enlistment.
- Media upon a court order obtained for good cause
How to Delete Bankruptcy Records in South Dakota
Bankruptcy is the situation in which a person or business becomes unable to pay their debts and file a legal proceeding to seek relief from some or all of their debts. By filing for bankruptcy, the legal action stays all creditors from seeking to collect debts from the debtor and the debtor can get a fresh financial start. Bankruptcy records show up on credit records which are often included in the background checks conducted by employers.
Your credit report contains information about how you pay your bills, whether you have been sued or arrested, or have filed for bankruptcy. The report can be obtained by creditors, insurers, employers, and other businesses that use it to evaluate your applications for credit, insurance, employment, or renting a home. Due to these reasons, many residents desire to have their bankruptcy records deleted. South Dakota abides by the federal Fair Credit Reporting Act (FCRA) which promotes the accuracy and privacy of information in the files of the nation's credit reporting agencies. Bankruptcy records are open records and can be accessed even through non-FCRA compliant records check services.
You can only remove a bankruptcy record if it is untrue, misreported, or inaccurate. You cannot legally remove a bankruptcy record simply because you want it off your record or have paid off the debts. Depending on the type of bankruptcy filed, a record will stay on public file for 7-10 years. Â A Chapter 7 bankruptcy will stay on the credit report and remain public for 10 years beginning from the date of filing. A Chapter 13 bankruptcy will only be automatically removed after 7 years
What are Consumer Protection Laws in South Dakota?
Fraudulent and unethical acts and practices by businesses operating in South Dakota are prohibited by both state and federal law. Under the Federal Trade Commission Act, an act or practice is considered unfair if it:
- causes or is likely to cause substantial damage to consumers
- cannot be reasonably avoided by consumers
- is not outweighed by countervailing benefits to consumers or competition
A deceptive practice occurs when:
- A representation, omission, or practice misleads or is likely to mislead the consumer
- A consumerâ€™s interpretation of the representation, omission, or practice is considered reasonable under the circumstances
- The misleading representation, omission, or practice is material
South Dakota has also enacted a state law similar to the federal Act through its Deceptive Trade Practices Act (SDCL 37-24-6). Under this Act, it is a violation to:
- To knowingly and intentionally act, use, or employ any deceptive act or practice, fraud, false pretense, false promise, or misrepresentation or to conceal, suppress, or omit any material fact in connection with the sale advertisement of any merchandise, regardless of whether any person has been misled, deceived, or damaged.
- To engage in referral sales where a gift, offer of money, rebate, or discount for providing names of prospective purchasers are contingent on an event that occurs after the names are given.
- To engage in chain letters or other types of pyramid schemes.
- To advertise a â€œgoing out of business saleâ€ and after the sale remains in business, under the same, or substantially the same ownership or trade name, or continue to offer for sale the same type of merchandise at the same location for more than 120 days.
- To advertise price reductions without including in the advertisement the basis for the claimed price reduction or without offering the advertised merchandise at the price from which the claimed reduction during the 60 days prior to the advertisement.
- To send or mail unordered consumer goods, services, or invoices for those unordered items.
Per Section 37-24-27, upon a petition by the South Dakota Attorney General, a civil penalty of up to $2,000 per violation will be imposed if the court finds that the use of unlawful deceptive trade practice is or was intentional. A private person can also bring a civil action for the recovery of actual damages suffered as a result of such unfair or deceptive practice.
South Dakota also enacted a Data Breach Notification Law on March 21, 2018, which went into effect on July 1, 2018. Otherwise referred to SB62, the Data Breach Notification Law seeks to hold businesses accountable for the personal information of residents in their care. SB62 requires an "information holder" to notify South Dakota residents of any breach of system security involving their personal or protected information. The Law defines an information holder to include any person or business that conducts business in the state and owns or retains personal or protected information of South Dakota residents.
Personal information under SB62 includes the first name or first initial and last name in combination with:
- Social security number
- Driver license number/other unique ID created or collected by a government
- Account number, in combination with an access code/routing number
- Health information as defined in HIPAA (45 C.F.R. Â§ 160.103): employee ID numbers, in combination with an access code or biometric data
Protect information includes:
- a username or email address, in combination with a password, security question answer, or other information that permits access to an online account
- financial account number, in combination with a required security code, access code, or password that permits access to a person's financial account.
South Dakota residents must be notified of the data breach not later than sixty days from the discovery. The South Dakota Attorney General must also be notified of breaches involving more than 250 South Dakota residents. Notification is not required if following appropriate investigation and notice to the Attorney General, the information holder determines that the breach will not likely result in harm to the affected persons. However, that determination must be documented in writing and maintained for at least three years.
Under Section 7 of the Data Breach Notification Law, the Attorney General may bring a civil action seeking a maximum penalty of $10,000 per day per violation. Attorney fees and costs associated with bringing such enforcement actions can also be recovered.
Other consumer protection laws in South Dakota include:
- South Dakota Identity Theft Laws
- South Dakota Antitrust Laws
- South Dakota Homestead Laws
- South Dakota Lemon Laws
- South Dakota Pyramid Schemes Laws
How to Delete Lien Records in South Dakota
A lien is a claim on a property or item in order to ensure payment of a debt. Liens are of various types including tax lien, mechanic's lien, real estate lien, and judgment lien. A lien provides a creditor with the legal right to seize and sell the property or asset of the debtor who fails to meet the obligations of a loan or contract. The property of a debtor also cannot be sold by the debtor without the consent of the lienholder. Lien records are not allowed to be deleted in South Dakota. They are public records and can be easily accessed.
The easiest way to delete a lien record is by paying off the debt associated with the record. You can also reach a compromise with the lienholder to pay a lump sum for the creditor to remove the lien.
You can search liens online in South Dakota through the Secretary of State (SOS) website. However, you will need a pre-paid account from the South Dakota SOS. You can also complete a South Dakota Search Request â€“ UCC II Form and mail it to:
Secretary of State
500 E. Capitol
Pierre, SD 57501-5070
Phone: (605) 773-4422
Fax: (605) 773-4550
Note that there is a search request fee of $20 per record and a copy fee of $1 per page. Search for property liens can also be conducted at the local county recorder office where the lien was filed. A nominal fee may apply.
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