Sealing and Expunging Criminal Records in Montana

When a record is sealed or expunged in Montana, all information, including convictions, arrests, mistrials, and dismissals, typically does not show up in background checks made by individuals. In Montana, residents are eligible for expungement of criminal misdemeanor records under Title 46, Chapter 18, Part 11. However, the party must meet specific requirements to be eligible for expungement or sealing.

The Difference Between Sealing and Expunging Criminal Records

In Montana, the result and process of sealing and expunging records are similar, but requestors are advised to know the differences between these actions. Sealing records, per MCA 46–18–204, means that members of the public may access the records with a Montana District Court order. Other criminal justice agencies can also view these records, as outlined in MCA 44 5–103. Expungement means that the court erases records, and no entity can recover them. The expungement law in Montana states that the system files only save the individual’s fingerprints.

How to Seal a Criminal Record in Montana

Records are only sealed in Montana, where no mandatory sentence is involved. Before individuals request to have a record sealed, they may check existing records using the state’s Criminal History Online Public Record Search (CHPRS) platform. It is also possible to make a record request via mail. Once the individual knows all of the criminal record’s convictions and arrests, the individual can request to have the record sealed. Parties can make this request by contacting the court that ordered the sentence and asking for the court to seal the records.

What Crimes Can Be Expunged in Montana?

Per the Montana Expungement Law, courts can only expunge misdemeanors. Expugnable misdemeanors in Montana are typically less severe than felonies. They include:

• Petty theft worth up to $1,500
• Possession of marijuana
• First offense: disorderly conduct
• First offense stalking

The exceptions to this rule are misdemeanors that involve violence or driving while impaired or are sexual. Individuals charged with a crime that does not immediately qualify for expungement can make a case at a court hearing. At the hearing, courts typically consider the individual at the time of the crime, the duration of time that has passed, rehabilitation of the individual, and the likelihood of reoffending.

Can a Felony Be Expunged in Montana?

There is currently no process for expunging standard felony convictions in Montana. State law (Mont. Code Ann. Title 46, Chapter 23) only permits the expunction of misdemeanors, and in some cases, certain marijuana felonies. Under Montana Code § 46-18-1104, a person convicted of one or more misdemeanors, who has never used the state expungement law before, may petition the district court to expunge records of arrest, investigation, detention, and court proceedings for those misdemeanors.

Individuals seeking expungement of their misdemeanor record must meet the following criteria:

• All sentence requirements must have been completed, and the person has maintained a clean slate (throughout the country) for 5 years since the completion of the terms of the original sentence.
• They are not being detained, and there are no pending charges against them.

For marijuana-related felonies, the Montana Marijuana Regulation and Taxation Act (MMRTA), enacted in 2021, has made some marijuana-related acts that used to be illegal legal, and has redesignated others as mere civil infractions. Individuals who were convicted for marijuana-related activities that are now legal (but used to be illegal) can petition to have those records expunged. Furthermore, if they are currently serving that sentence, they can apply for a resentence or have the sentence redesignated as a civil infraction if the offense they were convicted of is now merely a civil infraction.

Per (Mont. Code Ann. § 46-18-1109 (2023)), even when statutory criteria are met, judges have the discretion to deny a petition where the interest of justice demands a dismissal. So demonstrating rehabilitation and good conduct is crucial.

Note: the expungement process can only be used once. Therefore, it is critical to use it right the first time.

How to Expunge Criminal Records in Montana

To have a Montana criminal record expunged, requestors must fulfill all eligibility requirements. Offenders must pay any fines and complete all rehabilitation or treatment programs the court has ordered. Also, five years must pass from the conviction before applying for expungement. Suppose the individual applying for expungement has applied to the United States military, armed forces, or national guard, and cannot hold a particular position due to the convictions. In that case, the court may waive requirements to qualify for expungement if it sees fit. The expungement process is as follows:

• The offender must petition the District Court for expungement.
• The individual’s attorney must notify the government entity responsible for the conviction, as well as all potential victims.
• The District Court grants or denies the request.
• If granted, the individual must have fingerprints collected again.
• Petitioners verify the expungement by filling out an Expungement Form, along with the fingerprint card, to the Montana Criminal Records and Identification Services Section (CRISS) at the following address:

P.O. Box 201403
Helena, MT 59620

Typically, expungement takes 30 days from the date of approval to process.

Do Sealed Records Show up In Montana Background Checks?

Yes, sealed records may show up in government background checks. However, the records sealed by the court are not available for public access. Expunged records are destroyed and do not show up in any background checks by any entities.

Who Can See Sealed Criminal Records in Montana?

If an individual has requested to have a record sealed and the order has been approved, the state removes the records from public access. Members of the public may be able to view the records with a subpoena from the District Court. Law enforcement agencies, such as the military, FBI, and Border Patrol, can still access sealed records. However, expunged records are not available to any entity because all history of them has been erased.

How Can a Record Be Expunged for Free in Montana?

Expungement petition filings in the district court usually carry a court filing fee. Expungement petition filings can also prompt the need to conduct a background check, fingerprints, or copies of records, which can escalate costs.
If a petitioner cannot afford the court filing fee, they can ask the judge to waive it by filing a fee waiver (in pauperis) form supported by a financial affidavit showing their income and expenses.

If approved, they won’t have to pay filing fees.

Additionally, applicants can keep costs low by submitting their petition through nonprofit organizations such as the Montana Legal Services Association (MLSA). The MLSA runs “Clean Slate” clinics that help low-income people file expungement petitions for free.

They can help prepare petitions, request fee waivers, and represent applicants in court if needed.

Marijuana Convictions under MMRTA:

Some counties and courts process these without charging filing fees, but it can vary. Petitioners can still request a waiver if a fee applies.

Applicants who qualify can petition the district court in the county of conviction to seal their record. Key steps include:

• File a “Petition for Nondisclosure of Criminal Records” (sometimes still called an expungement petition) and serve notice on the county attorney and any listed victims (§ 46-23-1011).
• A judge may hold a hearing to confirm eligibility and completion of all sentencing requirements.
• If granted, submit the signed order and a fingerprint card to the Montana Department of Justice so the record is removed from the public database.

How to Obtain Sealed Records in Montana

Sealed records are available to members of the public who obtain a District Court order. To obtain an order from the District Court, a requester must petition the district court by creating a document that includes personal information and justification for accessing the sealed criminal records—this petition must then be brought to the court judge. Once the judge reviews the petition, it will be granted or denied. If granted, the court will have the documents and files collected and given to the requester, either by mail or in person.

Records that are considered public may be accessible from some third-party websites. Operating independently of any federal, state, or local agency, such websites may simplify the search process as they are not limited by geographic location. In addition, third-party sites typically have search engines that can be used for filtering specific or multiple records. To use third-party or government websites, interested parties may need to provide:

• The name of the person involved in the record, unless said person is a juvenile
• The location or assumed location of the record or person involved. This includes information such as the city, county, or state that the person resides in or was accused in

However, third-party sites are independent of government sources and are not sponsored by these government agencies. Because of this, record availability cannot be guaranteed.