How to File a Motion for Expungement in South Dakota Courts

Removing a past mistake from the public eye can profoundly change your life, opening doors to new employment, housing, and educational opportunities. In South Dakota, this legal process requires strictly following the rules of the Unified Judicial System. Filing a motion for expungement is not as simple as filling out a single online form; it involves drafting legal pleadings, adhering to strict notification deadlines, and presenting your case to a judge.

Because the courts are unforgiving of procedural errors, understanding exactly how to file your motion is critical. A single missed signature or failure to notify the correct police department can result in your petition being thrown out. To ensure your paperwork is filed perfectly, you can find an experienced criminal defense lawyer in our US Attorneys directory. Below is a detailed, step-by-step guide to the expungement process in South Dakota.

Step-by-Step Process in South Dakota

The authority to expunge criminal records in the state is governed by SDCL § 23A-3-27. This statute outlines who is eligible and the mandatory procedures you must follow. Whether your case was dismissed in Pierre or you were acquitted in Mitchell, the process generally follows these exact steps.

Step 1: Obtaining Certified Court Records and Background Checks

Before you can draft any legal documents, you need to know exactly what is on your record. You must obtain a certified copy of your criminal history from the South Dakota Division of Criminal Investigation, Pierre (DCI). Additionally, you should request a certified copy of the final disposition (the document proving your case was dismissed or you were acquitted) from the Clerk of Courts in the county where the incident occurred. Without this proof, a judge cannot verify your eligibility.

Step 2: Drafting the Petition for Expungement

Once you have your records, your attorney will draft the formal legal motion. You will typically use a document similar to Form UJS-391, South Dakota, Unified Judicial System, Motion for Expungement and Statement of Mailing. This petition must state your full legal name, date of birth, the date of the arrest, the exact charges, the arresting agency, and the reason you are eligible for expungement (e.g., the charges were dismissed and the one-year waiting period has passed).

Along with the petition, you must sign a sworn affidavit in front of a notary public declaring that you have no other pending criminal charges and that you meet all statutory requirements. This packet is then filed with the Clerk of Courts at the appropriate Circuit Court, such as the Minnehaha County Circuit Court, Sioux Falls or the Pennington County Circuit Court, Rapid City.

Step 3: Serving the Prosecuting Attorney and Notifying Agencies

South Dakota law strongly protects the right of the State to review and object to your expungement. Under SDCL § 23A-3-28, you are legally required to serve a copy of your filed motion upon the office of the prosecuting attorney (the local State's Attorney) at least 14 days before the scheduled court hearing. You do not serve law enforcement agencies directly at this stage; instead, under SDCL § 23A-3-31, the Clerk of Courts is responsible for delivering certified copies of the final expungement order to the arresting agency-such as the Sioux Falls Police Department, Sioux Falls or the Lawrence County Sheriff's Office, Deadwood-and the DCI once the judge grants the motion.

Service on the prosecuting attorney is typically completed by certified mail or personal service, and a statement or proof of mailing must be filed with the court. Precedents like the rules discussed in In re Expungement of the Record Concerning Taliaferro, 856 N.W.2d 805 (SD Supreme Court 2014) highlight how strictly courts view the procedural requirements for sealing records.

Step 4: Scheduling and Attending the Final Judge's Hearing

After the 14-day notice period expires, you will attend a final hearing before a Circuit Court judge. At this hearing, the judge will review your petition and ask if the State's Attorney has any objections. If the prosecutor objects, your lawyer must argue why the expungement serves the interests of justice and outweighs any public need to know about the arrest. If the judge agrees, they will sign an Order of Expungement. The Clerk of Courts will then seal the physical file and send an order to the DCI to remove the arrest from your public background check.

How Much Does it Cost in South Dakota?

Pursuant to SDCL § 23A-3-28, filing a motion for expungement requires paying a total civil filing fee of $72.00 to the Clerk of Courts. This total includes the $25.00 statutory base fee under SDCL § 16-2-29(3)(a), a $40.00 court automation fee under SDCL § 16-2-39, and a $7.00 county law library fee under SDCL § 14-6-1, unless the court grants an indigency waiver based on financial hardship. Additional costs include:

• Court Filing Fee: $72.00 total statutory fee paid to the Clerk of Courts (unless waived).
• Attorney Fees: Hiring a private lawyer to draft the petition, serve the notices, and represent you at the hearing typically costs a flat fee of $750 to $1,500.
• Background Checks: A certified DCI background check costs approximately $26.75.
• Service Costs: Serving the motion on the prosecutor usually costs around $10 to $20.

How Long Does the Process Take?

The entire expungement process from start to finish generally takes about 60 to 90 days. Retrieving your DCI background check takes a few weeks. After filing the motion, you must wait the mandatory 14 days for the prosecutor to review it. Depending on the judge's calendar, your final hearing will likely be scheduled 3 to 6 weeks after the motion is officially filed. Once the judge signs the order, it may take the DCI an additional 30 days to update their digital databases.

Frequently Asked Questions (FAQ)