South Dakota Petition for Expungement of Criminal Record

IMPORTANT: THIS IS A PREPARATION GUIDE — NOT THE OFFICIAL COURT FORM

South Dakota requires the use of official court form UJS-391 (Motion for Expungement)
for expungement petitions. This template provides the substantive legal content to help you prepare —
but you must transfer your content to the official form before filing. The official form
is available at ujs.sd.gov.
Do not file this document directly with the court.

IN THE CIRCUIT COURT OF THE [________________________________] JUDICIAL CIRCUIT

COUNTY OF [________________________________], STATE OF SOUTH DAKOTA

In the Matter of the Petition of

[________________________________],

Petitioner,

For Expungement of Criminal Record      Court File No. [________________________________]

Pursuant to SDCL Chapter 23A-3.

PETITION FOR EXPUNGEMENT OF CRIMINAL RECORD

TABLE OF CONTENTS

1. Parties and Caption
2. Jurisdiction and Venue
3. Factual Background
4. Type of Expungement Sought
5. Eligibility and Waiting Period Compliance
6. Rehabilitation Evidence
7. Public Interest Statement
8. Legal Standard
9. Prayer for Relief
10. Verification (Affidavit)
11. Certificate of Service
12. Signature Block
13. Proposed Order

I. PARTIES AND CAPTION

1. Petitioner [________________________________] ("Petitioner") is an adult individual whose current residential address is [________________________________] (Street, City, State, ZIP).

2. Petitioner's date of birth is [__/__/____]. Petitioner's State Identification Number (SID) is [________________________________].

3. The Respondent for service purposes is the Office of the State's Attorney for [________________________________] County, located at [________________________________] (address).

4. ☐ Additional agencies requiring notice:
   - [________________________________] Police Department
   - South Dakota Division of Criminal Investigation (DCI)
   - [________________________________] (other custodian of records)

II. JURISDICTION AND VENUE

5. This Court has jurisdiction over this matter pursuant to SDCL Chapter 23A-3 and the general criminal-procedure jurisdiction of the Circuit Court.

6. Venue is proper in this Court because the underlying ☐ arrest ☐ charge ☐ conviction occurred in [________________________________] County, South Dakota.

7. This Petition is filed as a civil filing, and Petitioner has paid the applicable filing fee of $70.00 pursuant to SDCL § 23A-3-28.

III. FACTUAL BACKGROUND

8. On [__/__/____], Petitioner was arrested in [________________________________] (city/county) by [________________________________] (law enforcement agency) for the offense(s) of:

9. Case No. [________________________________] was disposed of as follows:

☐ Dismissal — The case was dismissed on [__/__/____] by ☐ the State's Attorney ☐ order of the court.
☐ Acquittal — Petitioner was acquitted by ☐ jury verdict ☐ bench trial on [__/__/____].
☐ No Charges Filed — No accusatory instrument was filed following the arrest.
☐ Guilty Plea / Conviction — Petitioner was convicted on [__/__/____] and sentenced to [________________________________].

10. ☐ Petitioner completed all sentencing obligations, including:
    ☐ Payment of all fines: $[________________________________]
    ☐ Payment of all restitution: $[________________________________]
    ☐ Completion of probation on [__/__/____]
    ☐ Completion of incarceration on [__/__/____]
    ☐ Completion of community service hours
    ☐ Successful completion of all other terms of sentence on [__/__/____]

11. Petitioner's final discharge date from all sentencing obligations was [__/__/____].

IV. TYPE OF EXPUNGEMENT SOUGHT

Petitioner seeks expungement under the following statutory provision (check one):

Option A: Arrest Record Expungement — SDCL § 23A-3-27

☐ No charges filed. More than one (1) year has elapsed since the date of arrest, and no accusatory instrument was filed. SDCL § 23A-3-27(1).

☐ Case formally dismissed. The prosecuting attorney has formally dismissed the entire criminal case on the record, and the prosecuting attorney consents to expungement. SDCL § 23A-3-27(2).

☐ Case dismissed — compelling necessity. The case was dismissed within the past year, and Petitioner demonstrates compelling necessity for expungement. SDCL § 23A-3-27(2).

☐ Acquittal. Petitioner was acquitted of all charges at any time after the acquittal. SDCL § 23A-3-27(3).

Option B: Misdemeanor Conviction Expungement — SDCL § 23A-3-33

☐ Petitioner was convicted of a ☐ Class 1 misdemeanor ☐ Class 2 misdemeanor.
☐ At least five (5) years have elapsed since the completion of all conditions of sentence (or ten (10) years for a Class 1 misdemeanor if the offense involved domestic violence or a violation of a protection order).
☐ Petitioner has not been convicted of any subsequent offense.
☐ Petitioner does not have any pending criminal charges.

Option C: Felony Conviction Expungement — SDCL § 23A-3-33.1

☐ Petitioner was convicted of a ☐ Class 5 felony ☐ Class 6 felony.
☐ At least seven (7) years have elapsed since the completion of all conditions of sentence for a Class 6 felony, or ten (10) years for a Class 5 felony.
☐ Petitioner has not been convicted of any subsequent felony offense.
☐ Petitioner does not have any pending criminal charges.
☐ The conviction is not for a sex offense listed under SDCL § 22-24B-1 or a crime of violence as defined by SDCL § 22-1-2(9).

Option D: Automatic Expungement — SDCL § 23A-3-34

☐ Petitioner was convicted of a petty offense, municipal ordinance violation, or Class 2 misdemeanor (the highest charge in the record), and ten (10) years have elapsed. This expungement should have occurred automatically; Petitioner requests the Court order expungement if it has not been completed.

V. ELIGIBILITY AND WAITING PERIOD COMPLIANCE

12. Petitioner affirms the following:

(a) ☐ The offense is eligible for expungement under the statutory provision checked in Section IV above.

(b) ☐ The applicable waiting period has fully elapsed:

• Date of final discharge / completion of sentence: [__/__/____]
• Required waiting period: [____] years
• Waiting period elapsed on: [__/__/____]
• Today's date: [__/__/____]

(c) ☐ Petitioner has not been convicted of any ☐ felony ☐ misdemeanor since the disposition of the underlying case.

(d) ☐ No criminal charges are presently pending against Petitioner in any jurisdiction.

(e) ☐ The offense is not a sex offense (SDCL § 22-24B-1) or crime of violence (SDCL § 22-1-2(9)).

(f) ☐ All fines, fees, restitution, and court costs have been paid in full.

VI. REHABILITATION EVIDENCE

13. Petitioner respectfully submits the following evidence of rehabilitation and community reintegration since the date of the offense:

(a) Employment: Petitioner has been employed as [________________________________] at [________________________________] since [__/__/____]. ☐ Employment verification is attached as Exhibit [____].

(b) Education: Petitioner ☐ completed ☐ is currently enrolled in [________________________________] (educational program/degree) at [________________________________]. ☐ Transcripts/certificates attached as Exhibit [____].

(c) Community Involvement: Petitioner has participated in [________________________________] (volunteer work, community organizations, religious activities) since [________________________________]. ☐ Letters of support attached as Exhibit [____].

(d) Family Stability: Petitioner maintains a stable residence at [________________________________] with [________________________________] (family members) and supports [____] dependents.

(e) Treatment Completion: ☐ Petitioner successfully completed [________________________________] (substance abuse treatment, counseling, anger management, etc.) on [__/__/____]. ☐ Completion certificate attached as Exhibit [____].

(f) No Further Contact with Law Enforcement: Since the disposition of the underlying case, Petitioner has had no further arrests, charges, or convictions.

(g) Character References: ☐ Letters of reference from the following individuals are attached:

• [________________________________] (name, relationship)
• [________________________________] (name, relationship)
• [________________________________] (name, relationship)

VII. PUBLIC INTEREST STATEMENT

14. The public interest is served by granting this Petition because:

(a) The continued existence of this criminal record threatens Petitioner's access to ☐ employment ☐ housing ☐ professional licensing ☐ educational opportunities ☐ other: [________________________________], contrary to the remedial purpose of South Dakota's expungement statutes.

(b) Petitioner has demonstrated rehabilitation through [________________________________] (years of law-abiding conduct, community service, employment stability, etc.).

(c) Expungement will not compromise public safety. Sealed records remain accessible to law enforcement personnel and prosecuting authorities as provided by SDCL § 23A-3-35.

(d) South Dakota's legislative policy favors the reintegration of rehabilitated individuals and the removal of barriers to productive citizenship.

VIII. LEGAL STANDARD

15. Under SDCL § 23A-3-27, the circuit court may order expungement of arrest records when no charges were filed (after one year), upon prosecutorial consent after dismissal, after acquittal, or upon a showing of compelling necessity.

16. Under SDCL § 23A-3-33, the circuit court may order expungement of a misdemeanor conviction when the statutory waiting period has elapsed, all conditions of sentence have been completed, and the petitioner has remained conviction-free.

17. Under SDCL § 23A-3-33.1, the circuit court may order expungement of a Class 5 or Class 6 felony conviction when the applicable waiting period (seven or ten years) has elapsed, the offense is not a sex offense or crime of violence, and the petitioner meets all eligibility criteria.

18. Under SDCL § 23A-3-29, upon filing of the motion, the court shall set a hearing unless the petitioner, the prosecuting attorney, and any identified victim unequivocally consent to waive the hearing. SDCL § 23A-3-29.

19. Under SDCL § 23A-3-30, if the court grants expungement, the records shall be sealed and removed from public access. The expunged records remain available to law enforcement and for purposes of subsequent criminal proceedings. SDCL § 23A-3-35.

20. Under SDCL § 23A-3-31, the court may deny expungement if the interests of justice require continued public access to the records.

IX. PRAYER FOR RELIEF

WHEREFORE, Petitioner respectfully requests that this Court:

A. Set this matter for hearing in accordance with SDCL § 23A-3-29, unless the hearing is waived by all parties;

B. Order all arrest, charge, and ☐ conviction records described herein SEALED from public inspection pursuant to SDCL § 23A-3-30;

C. Direct each criminal-justice agency possessing the record to comply with the Court's order within thirty (30) days, including removal from publicly accessible databases;

D. Direct the South Dakota Division of Criminal Investigation (DCI) to seal all records pertaining to the arrest, charge, and/or conviction;

E. Authorize Petitioner to lawfully respond to inquiries as though the underlying arrest/conviction never occurred, except where disclosure is statutorily required, pursuant to SDCL § 23A-3-35;

F. Waive any additional court costs beyond the filing fee already paid; and

G. Grant such other and further relief as the Court deems just and proper.

X. VERIFICATION (AFFIDAVIT)

STATE OF SOUTH DAKOTA   )
               ) SS.
COUNTY OF [________________________________] )

I, [________________________________], being first duly sworn, depose and state that I am the Petitioner in the above-entitled action; that I have read the foregoing Petition for Expungement of Criminal Record and know the contents thereof; and that the same is true and correct to the best of my knowledge, information, and belief.

[________________________________]
[________________________________], Petitioner

Subscribed and sworn to before me this [____] day of [________________________________], 20[____].

[________________________________]
Notary Public
My Commission Expires: [________________________________]

XI. CERTIFICATE OF SERVICE

I certify that on the [____] day of [________________________________], 20[____], I served a true and correct copy of the foregoing Petition for Expungement upon:

[________________________________], State's Attorney
Office of the State's Attorney for [________________________________] County
[________________________________] (Address)

by ☐ personal delivery ☐ certified mail, return receipt requested ☐ e-filing, as required by SDCL § 23A-3-28 and local rules.

☐ I further certify that notice was provided to the identified victim(s), if any, as required by law:

• [________________________________]

[________________________________]
[________________________________] (Petitioner or Counsel)

XII. SIGNATURE BLOCK

Respectfully submitted,

[________________________________]
[________________________________], Esq. (SD Bar No. [________________________________])
[________________________________] (Law Firm)
[________________________________] (Address)
Telephone: [________________________________]
Email: [________________________________]
Attorney for Petitioner

☐ OR, if Petitioner is self-represented:

[________________________________]
[________________________________], Petitioner (Pro Se)
[________________________________] (Address)
Telephone: [________________________________]
Email: [________________________________]

XIII. PROPOSED ORDER FOR EXPUNGEMENT

IN THE CIRCUIT COURT OF THE [________________________________] JUDICIAL CIRCUIT
COUNTY OF [________________________________], STATE OF SOUTH DAKOTA

In the Matter of the Petition of [________________________________] for Expungement of Criminal Record.

Court File No. [________________________________]

ORDER GRANTING PETITION FOR EXPUNGEMENT

The Court, having reviewed the Petition for Expungement, ☐ having conducted a hearing on [__/__/____] ☐ the hearing having been waived by all parties pursuant to SDCL § 23A-3-29, and being otherwise sufficiently advised, FINDS and ORDERS as follows:

FINDINGS:

1. Petitioner has met all statutory eligibility requirements for expungement under SDCL § [________________________________].

2. ☐ The applicable waiting period has elapsed.
   ☐ All conditions of sentence have been satisfied.
   ☐ Petitioner has no subsequent convictions and no pending charges.

3. The interests of justice ☐ are served ☐ are not served by expungement.

ORDER:

1. The Petition for Expungement is GRANTED.

2. All records pertaining to ☐ the arrest on [__/__/____] ☐ Case No. [________________________________], including complaints, warrants, charging instruments, arrest records, court dockets, orders, judgments, and electronic data, are hereby SEALED from public inspection.

3. The following agencies shall comply with this Order within thirty (30) days of service:
   (a) Clerk of Courts, [________________________________] County
   (b) [________________________________] Police Department / Sheriff's Office
   (c) South Dakota Division of Criminal Investigation (DCI)
   (d) [________________________________] (other agencies)

4. Petitioner is authorized to respond to inquiries regarding the expunged record as though the arrest, charge, and/or conviction never occurred, except as provided by SDCL § 23A-3-35.

5. Sealed records remain accessible to law enforcement and for purposes of subsequent criminal proceedings as provided by statute.

SO ORDERED this [____] day of [________________________________], 20[____].

[________________________________]
Circuit Court Judge
[________________________________] Judicial Circuit

EXHIBITS CHECKLIST

☐ Exhibit A — Certified copy of judgment / dismissal order / acquittal
☐ Exhibit B — Proof of sentence completion (probation discharge, fine receipts)
☐ Exhibit C — Employment verification
☐ Exhibit D — Character / reference letters
☐ Exhibit E — Treatment program completion certificate
☐ Exhibit F — Educational transcripts / certificates
☐ Exhibit G — Criminal background check (current)
☐ Exhibit H — [________________________________]

SOURCES AND REFERENCES

• SDCL § 23A-3-27 — Motion for expungement of arrest record: https://sdlegislature.gov/Statutes/23A-3-27
• SDCL § 23A-3-28 — Filing and service requirements
• SDCL § 23A-3-29 — Hearing; waiver
• SDCL § 23A-3-30 — Order of expungement: https://sdlegislature.gov/Statutes/23A-3-30
• SDCL § 23A-3-31 — Court may deny expungement
• SDCL § 23A-3-33 — Expungement of misdemeanor conviction
• SDCL § 23A-3-33.1 — Expungement of felony conviction (Class 5 and 6)
• SDCL § 23A-3-34 — Automatic expungement of petty offenses
• SDCL § 23A-3-35 — Effect of expungement
• South Dakota Unified Judicial System, Expungement Self-Help: https://ujs.sd.gov/self-help/civil-law-help/expungement/
• CCRC, South Dakota Restoration Profile: https://ccresourcecenter.org/state-restoration-profiles/south-dakota-restoration-of-rights-pardon-expungement-sealing/