Expungement Waiting Periods in South Dakota: How Long Until Your Record Is Cleared?
In South Dakota, you must wait 1 year from arrest if uncharged, or 1 year from formal dismissal under S.D. Codified Laws § 23A-3-27 to expunge your record. For most adult convictions, you must typically wait 5 years after completing your sentence to apply for a Governor's pardon or qualify for automatic non-felony removal.
A criminal record in South Dakota does not have to be a lifelong burden, but patience is a mandatory part of the legal process. The state has enacted strict statutory waiting periods that dictate exactly when a resident becomes eligible to seal their past mistakes. Attempting to file for an expungement before your specific waiting period has expired will result in an automatic denial by the judge, wasting both your time and money.
Because the laws regarding waiting periods differ drastically depending on whether you were merely arrested, acquitted, granted diversion, or formally convicted, it is crucial to understand your exact legal standing. To ensure your timeline is calculated correctly and your petition is flawless, you can search our US Attorneys directory to find an experienced South Dakota expungement lawyer to guide you.
Waiting Periods for Arrests, Dismissals, and Acquittals
Not every arrest leads to a conviction. If you were arrested in cities like Sioux Falls or Rapid City but the prosecutor decided not to file charges, or if the court ultimately dismissed the case, you have the right to clear that arrest from your record. However, you cannot do it immediately, and the timeline depends on how the case concluded.
Under S.D. Codified Laws § 23A-3-27, if you were arrested but no accusatory instrument was ever filed, the waiting period is 1 year from the date of the arrest. However, if criminal charges were filed and subsequently dismissed, you must wait 1 year from the date the prosecuting attorney formally dismisses the entire criminal case on the record. As a statutory exception, a court may grant an expungement within that 1-year period upon a showing of compelling necessity. If you took your case to trial and were officially acquitted (found not guilty) by a jury or judge, you may file a motion to seal the record at any time following the acquittal without any statutory waiting period.
Suspended Imposition of Sentence (SIS) and Diversion Programs
South Dakota offers a unique leniency program for many first-time offenders called a Suspended Imposition of Sentence (SIS). Under S.D. Codified Laws § 23A-27-13, if a judge grants you an SIS, you are placed on probation without a formal conviction entering your public record. If you successfully complete all terms of your probation (including paying fines and passing drug tests), the public record of the case is sealed automatically upon your discharge. You do not have to wait an additional year after probation ends. However, it is vital to know that the record is only sealed from the general public; law enforcement and the courts will always be able to see an SIS.
The Timeline for Clearing Adult Convictions
If you pled guilty or were found guilty of an adult offense in South Dakota, the record-clearing process changes dramatically. For minor infractions, the state provides automatic relief under S.D. Codified Laws § 23A-3-34: any charge or conviction where a petty offense, municipal ordinance violation, or Class 2 misdemeanor was the highest charged offense is automatically removed from a defendant's public record after 5 years, provided all court-ordered conditions are satisfied and no further convictions occur. However, for Class 1 misdemeanors and felonies, South Dakota does not offer direct court expungement; the primary way to clear those convictions is to first obtain an executive pardon from the Governor.
The waiting period to apply for a pardon is strict. According to the guidelines set by the South Dakota Board of Pardons and Paroles, Sioux Falls, you must generally wait 5 years from the date you completely finish your sentence. "Completing your sentence" means the day you are officially released from prison, jail, parole, or probation, and have paid all court-ordered restitution and fines. The 5-year clock does not start on the day of your conviction; it starts on the day your punishment entirely ends.
Applying for a Governor's Pardon
Once you reach the 5-year milestone, you can begin the pardon application process. You will need to gather letters of recommendation, complete a thorough background check, and formally publish a notice of your application in a local newspaper. If the Board recommends your pardon and the Governor signs it, your conviction is forgiven. Under South Dakota law, once a pardon is granted, the record of the pardoned offense is automatically sealed from public view. The timeline for the pardon review process itself usually takes an additional 6 to 12 months after the 5-year wait is over.
How Much Does it Cost in South Dakota?
While calculating your waiting period is free, navigating the legal procedures once you become eligible involves costs. If you are eligible for a standard expungement of a dismissed charge after 1 year, hiring a private attorney usually costs a flat fee ranging from $750 to $1,500. If you are pursuing a pardon after the 5-year wait, attorney fees typically range from $2,000 to $5,000 due to the extensive paperwork and mandatory hearings. Additionally, expect to pay around $43.25 for a federal background check and $50 to $100 for newspaper publication fees during the pardon process.
Frequently Asked Questions (FAQ)
Can I expunge my record early if I really need a job?
Generally, judges are bound by statutory timelines. For uncharged arrests, you must wait the full year, and pardons strictly require 5 years. However, if criminal charges were formally dismissed, S.D. Codified Laws § 23A-3-27 allows you to apply within the 1-year period upon a showing of compelling necessity, such as obtaining verified employment.
Does the waiting period restart if I get arrested again?
For pardons, absolutely. To be eligible for a pardon, you must demonstrate a clean record and good behavior during the 5-year waiting period. A new arrest or conviction will likely reset the clock and severely damage your chances of obtaining clemency.
What happens to my gun rights if my record is sealed?
If you received a Suspended Imposition of Sentence (SIS) for a non-violent felony and successfully completed it, or if you receive a full pardon for a conviction, your state and federal firearm rights are generally restored. However, federal laws are complex, so you should consult an attorney before attempting to purchase a firearm.
Where do I file my expungement motion in Brookings County?
Once your waiting period is complete, your attorney will file the motion at the Brookings County Circuit Court, Brookings, assuming that is where the original case was handled.
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