South Dakota Petition for Expungement of Criminal Record

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

South Dakota UJS publishes UJS-391A (Motion for Expungement) with UJS-391B
(Admission of Service) and UJS-391C (Statement of Mailing). This template is a
preparation guide only. Transfer the relevant information to the current official forms before filing. The forms
are available at ujs.sd.gov.
Do not file this document directly with the court.

Scope warning: The motion authorized by SDCL § 23A-3-27 is for an arrest or
ticket record after no charge, dismissal, or acquittal. SDCL Chapter 23A-3 and the
current UJS-391 do not provide the misdemeanor/felony conviction-expungement routes that appeared in an
earlier version of this template. Qualifying nonfelony cases may instead be removed
automatically from the public record under § 23A-3-34, and qualifying diversion cases
follow §§ 23A-3-35 to 23A-3-37.

IN THE CIRCUIT COURT OF THE [________________________________] JUDICIAL CIRCUIT

COUNTY OF [________________________________], STATE OF SOUTH DAKOTA

MOTION-PREPARATION GUIDE FOR EXPUNGEMENT OF ARREST RECORD

TABLE OF CONTENTS

1. Parties and Caption
2. Jurisdiction and Venue
3. Factual Background
4. Statutory Basis
5. Eligibility and Timing
6. Evidence Supporting the Statutory Standard
7. Ends-of-Justice and Public-Interest Statement
8. Legal Standard
9. Requested Relief
10. Supporting Declaration
11. Service and Filing Checklist
12. Signature Block
13. Official Proposed Order Reminder

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 office to be served is the Office of the State's Attorney for [________________________________] County, located at [________________________________] (address), which prosecuted the matter or had authority to prosecute it.

4. Record-holding agencies to identify for accuracy, if known:
   - [________________________________] 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 ☐ ticket ☐ criminal case is filed in [________________________________] County, South Dakota.

7. This motion begins a new civil action. The current UJS-391 instructions state a $72 filing fee. SDCL § 23A-3-28 sets the fee at the civil-action filing fee and permits the court to waive it if the applicant establishes indigency and inability to pay.

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.

10. The record supporting the selected ground is:

☐ Arrest record
☐ Prosecutor's dismissal filing
☐ Court dismissal order
☐ Judgment of acquittal
☐ Other: [________________________________]

11. If the case ended in a conviction rather than dismissal or acquittal, stop and obtain legal review before using UJS-391A. The motion grounds in § 23A-3-27 do not include a general conviction-expungement route.

IV. STATUTORY BASIS

Use UJS-391A only if one of the following grounds in SDCL § 23A-3-27 applies:

☐ No accusatory instrument filed. At least one year has elapsed since the arrest, and no accusatory instrument was filed. § 23A-3-27(1).

☐ Entire case dismissed more than one year ago. The prosecuting attorney formally dismissed the entire criminal case on the record, and at least one year has elapsed since the dismissal. § 23A-3-27(2).

☐ Acquittal of all charges. The applicant was acquitted of all charges at trial. The motion may be made at any time after acquittal. § 23A-3-27(3).

☐ Entire case dismissed within the last year; compelling necessity. The prosecuting attorney formally dismissed the entire case on the record, less than one year has elapsed, and the applicant can prove compelling necessity. § 23A-3-27(4).

Other South Dakota record-relief routes—not this motion

• Automatic public-record removal (§ 23A-3-34): A charge or conviction is automatically removed from the defendant's public record after five years if the highest charged offense was a petty offense, municipal ordinance violation, or Class 2 misdemeanor; all court-ordered conditions have been satisfied; and the defendant has no further offense conviction during those five years. The case remains available to authorized court personnel and may be used for later enhancement.
• Diversion (§§ 23A-3-35 to 23A-3-37): After successful completion of all diversion terms and no new crime charge—other than a petty offense or minor traffic citation—for one year and thirty days, the state's attorney files the dismissal and completion notice. The court then grants expungement without a motion.
• No limitations period (§ 23A-3-33): This section permits applications concerning arrests before or after July 1, 2010; it does not create a conviction-expungement category.

V. ELIGIBILITY AND TIMING

12. Petitioner affirms the following:

(a) ☐ The motion concerns one arrest or ticket record and is filed in the court that would have jurisdiction over the crime.

(b) ☐ One ground in § 23A-3-27 applies:

• Arrest date: [__/__/____]
• Dismissal date, if applicable: [__/__/____]
• Acquittal date, if applicable: [__/__/____]
• Today's date: [__/__/____]

(c) ☐ If relying on a dismissal within the last year, the facts establishing compelling necessity are stated and supported below.

(d) ☐ The entire criminal case was dismissed, or the applicant was acquitted of all charges, as applicable.

(e) ☐ A copy of the arrest record, dismissal filings, or judgment of acquittal is available for filing or presentation.

(f) ☐ A separate new civil action will be opened for each record for which relief is requested, consistent with the current UJS instructions.

VI. EVIDENCE SUPPORTING THE STATUTORY STANDARD

13. The following optional evidence may be used if relevant to the clear-and-convincing standard in § 23A-3-30. It is not a separate statutory eligibility checklist:

(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. ENDS-OF-JUSTICE AND PUBLIC-INTEREST STATEMENT

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

(a) The continued public availability of this arrest record affects Petitioner's access to ☐ employment ☐ housing ☐ professional licensing ☐ educational opportunities ☐ other: [________________________________].

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

(c) Expungement will not compromise public safety. A nonpublic disposition record remains with DCI solely for use by law enforcement agencies, prosecuting attorneys, and courts in sentencing for later offenses under SDCL § 23A-3-31.

(d) The ends of justice and the best interests of the public and the applicant will be served by the order, for these case-specific reasons: [________________________________].

VIII. LEGAL STANDARD

15. SDCL § 23A-3-26 defines expungement as sealing specified criminal-justice records; it does not require physical destruction.

16. SDCL § 23A-3-27 authorizes an arrested person to apply to the court that would have jurisdiction over the crime on one of four grounds: one year after an arrest with no accusatory instrument; one year after formal dismissal of the entire case; any time after acquittal; or within one year after formal dismissal upon compelling necessity.

17. Under SDCL § 23A-3-28, the motion must be served on the appropriate prosecuting attorney's office at least fourteen days before any hearing. The filing fee equals the civil-action filing fee and may be waived for proven indigency.

18. Under SDCL § 23A-3-29, the court may set a hearing. Waiver requires the applicant, prosecuting attorney, and victim, if any, to waive; the current UJS-392 provides a separate signature form for each applicable person.

19. Under SDCL § 23A-3-30, the applicant bears a clear and convincing evidence burden to show that the ends of justice and the best interests of the public and the applicant will be served.

20. If relief is granted, § 23A-3-31 requires reporting to DCI, retention of a limited nonpublic disposition record, and sealing of the other official records. Section 23A-3-32 restores the applicant, in contemplation of law, to the pre-arrest status and protects a failure to acknowledge the arrest, indictment or information, or trial in response to an inquiry from being treated as perjury or a false statement.

IX. REQUESTED RELIEF

WHEREFORE, Petitioner respectfully requests that this Court:

A. Set this matter for hearing if the Court determines a hearing is appropriate under SDCL § 23A-3-29, unless all required waivers are filed;

B. Enter the official UJS-394 order granting expungement of the arrest or ticket record described herein;

C. Direct that the official records identified in SDCL § 23A-3-31 be sealed;

D. Direct that a nonpublic disposition record be forwarded to and retained by DCI as § 23A-3-31 requires;

E. Give the order the effect stated in SDCL § 23A-3-32; and

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

X. SUPPORTING DECLARATION

If the Court requires or the applicant chooses to file a supporting statement, tailor it to the facts and current local practice. SDCL § 23A-3-29 permits the Court to require affidavits or other evidence. The official UJS motion itself uses the applicant's signature; it does not contain the notarized verification formerly included here.

I, [________________________________], declare under penalty of perjury under the law of South Dakota that the factual statements in my supporting materials are true and correct to the best of my knowledge.

Signed on [__/__/____] at [________________________________] (city and state).

[________________________________]
[________________________________], Applicant

XI. SERVICE AND FILING CHECKLIST

☐ Complete and file current UJS-391A and UJS-232 in the county where the arrest record or case is filed.

☐ Pay the current civil filing fee stated by UJS, or request a fee waiver if unable to pay.

☐ Mail UJS-391A, partially completed UJS-391B, and a self-addressed stamped envelope to the State's Attorney's office that handled or could have handled the matter.

☐ Complete and file UJS-391C after mailing; file UJS-391B after the State's Attorney returns it.

☐ If a hearing is scheduled, file UJS-393 and mail the motion and hearing notice so the prosecutor's office receives statutory service at least fourteen days before the hearing.

☐ If seeking waiver of the hearing, obtain separate UJS-392 waivers from the applicant, prosecutor, and victim, if there was a victim.

☐ Bring a blank current UJS-394 to any hearing. After entry of the order, complete and serve current UJS-395 as the official instructions require.

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. OFFICIAL PROPOSED ORDER REMINDER

Use the current UJS-394 Order on Motion for Expungement. Do not substitute a privately drafted order unless the Court directs otherwise. The July 2026 UJS-394 tracks the governing law by requiring the clear-and-convincing finding in § 23A-3-30 and ordering the sealing required by § 23A-3-31 while preserving DCI's nonpublic record.

EXHIBITS CHECKLIST

☐ Exhibit A — Arrest or ticket record
☐ Exhibit B — Prosecutor's dismissal filing or court dismissal order
☐ Exhibit C — Judgment of acquittal
☐ Exhibit D — Evidence of compelling necessity, if relying on § 23A-3-27(4)
☐ Exhibit E — Other evidence relevant to the § 23A-3-30 standard
☐ Exhibit F — [________________________________]

SOURCES AND REFERENCES

• SDCL Chapter 23A-3 official text and section map: https://sdlegislature.gov/api/Statutes/23A-3.html
• SDCL § 23A-3-27 — Motion for expungement of arrest record: https://sdlegislature.gov/api/Statutes/23A-3-27.html
• SDCL § 23A-3-28 — Service and civil-action fee: https://sdlegislature.gov/api/Statutes/23A-3-28.html
• SDCL §§ 23A-3-29 to 23A-3-33 — hearing, standard, sealing, effect, and limitations period
• SDCL § 23A-3-34 — Five-year automatic public-record removal
• SDCL §§ 23A-3-35 to 23A-3-37 — Diversion completion, dismissal, and expungement without motion
• South Dakota Unified Judicial System, Expungement Self-Help: https://ujs.sd.gov/self-help/civil-law-help/expungement/
• UJS-391 Motion, Admission of Service, and Statement of Mailing (Rev. 07/2026): https://ujs.sd.gov/media/10phxydh/ujs-391-motion-for-expungement-and-affidavit-of-mailing-final-07_2026.pdf
• UJS-392 Waiver, UJS-393 Hearing Notice, UJS-394 Order, and UJS-395 Notice of Entry (Rev. 07/2026) are linked from the UJS Expungement Self-Help page.