Expunging Criminal Records with an Idaho Withheld Judgment

In many states, there is a disposition of criminal cases called a "withheld judgment" or "deferred sentence." In Idaho it is authorized by Sections 19-2601(3) and 19-2604. Its legislative purpose is to keep the existence of the case off the record for most uses and to let the defendant go on as if it never happened. Idaho courts describe the "withheld judgment" this way:

to provide an opportunity for rehabilitation and to spare the defendant, particularly a first offender, the burden of a criminal record.

State v. Branson, 128 Idaho 790 at 793, 919 P.2d at 322 (1996). Unless you follow the advice in this post, that is not what is going to happen in your case.

In most states, if you are lucky enough to have your case resolved this way, all you do is wait out the probation period, then apply to the court at the specified time, and the arrest, charge, and conviction comes off your record. However, in Idaho, what actually happens in practice is that all the details of the case remain part of the public record for anyone to find. The only thing that changes when one applies for and is granted the order for withheld judgment, is that the label on the case changes to "conviction reversed and case dismissed."

The problem is that all the rest of the information, the original charges (if they were trumped up to leave the prosecutor room for plea bargaining), and every play by play of the case that was part of the public record is still there. The online Idaho Repository can deliver all details of this case instantly to any journalist or interested person if the withheld judgment is carried out in the typical way.

So, you need to make sure it is not carried out in the typical way. You want to make sure your withheld judgment results in the case being expunged from your record. From what attorneys are saying, this is "notoriously difficult" and "not going to happen" in Idaho.

Don't settle for that advice. Your attorney is probably busy and has financial incentive to re-cycle the same paper he used on the last client. The fact that you even have a withheld judgment says that the court thinks this case is relatively unimportant, too. Really, this case is only important to you and no one else, so if you want it sealed, you're going to have to do a little extra work.

The process is this:

1. At your sentencing, the judge ordered a Withheld Judgment along with a period of probation, and maybe fine, or requirement to complete some kind of re-education program.
2. Now the probation time is close to expiring and you have fulfilled every other requirement of the original judgment, including your not ever violating any term of probation.
3. You have to file the following 3 papers all together in order to get the benefit of the Withheld Judgment:

• Affidavit of Compliance with Withheld Judgment. This is a notarized paper in which you testify and sign that you have complied with all terms of your probation. Kootenai County has a pre-printed form that is used specifically for this purpose and the clerk at the desk will hand it to you and notarize it for you for free. Just don't let her take it from you and file it by itself, as she will try to do. Tell her you will bring it back to her in a little while.
• Motion to Dismiss Withheld Judgement and Expunge Records. This is a court motion in which you ask the court to activate the withheld judgment based on the fact of your compliance with all the requirements of the judgment. It is signed by either you or your attorney. Here is a sample for you to edit and use.
• Proposed Order Granting Motion to Dismiss and Expunge Records. This is a court order that you write, and that you are asking the court to sign. It contains reasoning based on Title 19 (withheld judgments) and ICAR 32 (sealing cases where individual privacy outweighs public disclosure). It is also specific enough that if a state or local agency does not expunge this record, you can point to this Court Order that they are violating, and if that is not enough, file a Writ of Mandamus to force them to comply. You do not sign this, you leave it blank and hope the judge will use it verbatim and sign it. Here is a sample for you to edit and use.

Normally in Idaho,when trying to make use of a Withheld Judgment, the government machinery turns on just Title 19, and all the automatons do nothing to protect your criminal record. What is different about your motion is that it involves Idaho Court Administrative Rule 32(i), which allows the court to protect and seal a record if it makes a fact finding that certain material is not subject to public disclosure. The primary case that outlines how ICAR Rule 32 works is State v. Turpen, 216 P.3d 627 (2009).

In order to qualify for the extra protection of sealing your case (achieving expungement), the court has to make a written finding that satisfies just one of these:

• The material contains highly intimate facts that, if published, would be objectionable to a reasonable person, or,
• The material contains facts that, if published, would reasonably result in economic or financial loss to a person with interest in the material (you), or physical harm to anyone.

Submitting the 3 documents listed above is your application to the court to activate your Withheld Judgment. Before you file these documents in your case with the Court Clerk, mail a copy of each to the prosecutor so that your "Certificate of Service" on your motion is valid. After a few days, the prosecutor will either object or not to your motion and you'll find out by mail. If they object, then the judge may set a hearing to argue the matter. More likely, they will not answer or not object, and in that case the judge should issue an order granting your motion within a week or two.

With luck, the judge will just sign your proposed order, which will seal the case and close off information leaks from the Idaho Repository, Idaho State Patrol criminal history background checks and other sources that obtain data from public information. Then you can honestly report that you were never convicted of this crime. Although background checks that search public records will not turn this up, investigations conducted by law enforcement agencies will. This means background checks conducted by a private firm, such as for a job application, should be clear. But if you're trying to join the military or FBI, the case will be found. If you have money and are curious about what might be found, wait a couple of weeks and then order a pre-employment/criminal background check on yourself from a service like Intelius, US Search or another. Contrast that result with one conducted directly through the FBI.

Also be aware that the withheld judgment is still considered a conviction for purposes of "3 strikes" type of laws and counting DUI priors, and can disqualify an application for an Idaho concealed weapon permit made within 3 years.

Getting your rental deposit back

My friend gets jammed up a lot. In July it was over his deposit on a residential rental that he shared with some roommates. The landlord stopped by two days before their lease expired to express some very demanding expectations about how her crummy little shack should be returned, otherwise it was coming out of their deposit.

Landlord's list of intended charges included:

• the brown, unwatered sections of lawn
• replacing dead landscaping bushes
• edging and weeding
• professional carpet cleaning in a damp sub-basement!
• scrubbing stains out of 60 year old grout with particular cleaning products
• replacing a stolen freezer

My friend knew this list was going to mean a large chunk of their $1,000 security deposit would be missing when they got it back. The landlord even hired a lawn psychiatrist to come over and pad the bill with exotic plant examinations. So I was asked to be there as a mouthpiece when the landlord returned to check on cleaning progress.

I did, and let her know (in the most helpful and innocent manner) that she really couldn't deduct a thing from the deposit because 1) the property is in the same condition now as it was when she rented it to them, and 2) she never did a written "check-in" sheet documenting the original condition, and without it, the law is not on her side for making deductions from the deposit.

We went back and forth, her pointing out some alleged damage, my saying it was like that when they moved in, her saying it wasn't, and my asking then for the move-in condition of that item on the non-existent "check-in" sheet.

After some tense moments, she left. Then I went to the library to write a pre-emptive letter for my friend to get the landlord to see why I was right and she would have to give back the whole deposit. It's included below, and you may copy it freely for personal use in saving your own security deposit from greedy slumlords.

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July 31, 2006

Dear Landlord,

We are surrendering the premises to you at the expiration of our 1 year lease on July 31, 2006. Our forwarding addresses, for the purpose of returning all of our $1000.00 security deposit, and for any other notices are:

[Tenant #1 name, address]
[Tenant #2 name, address]

We would also like to put you on notice that you are not entitled to withhold any amount from our security deposit because as a lessor of residential rental property, and as a lawyer yourself, you have failed to comply with the following law of the State of Montana:

70-25-206. Landlord to furnish statement of condition of premises at beginning of lease. (1) Any person engaged in the rental of property for residential purposes who requires a security deposit shall furnish to each tenant, in conjunction with execution of a lease or creation of a tenancy, a separate written statement as to the present condition of the premises intended to be let. At the written request of the tenant, a copy of the written list of damage and cleaning charges, if any, provided to the tenant of the immediately preceding leasehold agreement for the premises in question must be provided to the tenant.
      (2) Each written statement of the present condition of a premises intended to be let shall contain at least the following:
      (a) a clear and concise statement of the present condition of the premises known to the landlord or the landlord's agent or which should have been known upon reasonable inspection;
      (b) if the premises have never previously been let, a statement indicating the fact; and
      (c) the signature of the landlord or the landlord's agent.

(emphasis added).

In Montana, when a landlord fails to provide the written statement of condition as required by law, as you have, then that landlord is barred from retaining any portion of the security deposit for cleaning or damages.

70-25-206. (3) A person engaged in the rental of property for residential purposes who fails to furnish a tenant, in conjunction with the execution of the lease or creation of the tenancy, with a separate written statement of the present condition of the premises intended to be let and, upon the written request of the tenant, a written list of damage and cleaning charges provided to the tenant of the immediately preceding leasehold agreement is barred from recovering any sum for damage to or cleaning of the leasehold premises unless the person can establish by clear and convincing evidence that the damage occurred during the tenancy in question and was caused by the tenant occupying the leasehold premises or the tenant's family, licensees, or invitees.

(emphasis added).

With regard to cleaning as we return the premises, we have restored the property to the exact condition that it was in when it was rented to us. If you still think it is not sufficiently clean, we will clean it further, even though we are not required to, and even though, by law, you cannot deduct any amount from our deposit for additional cleaning.

With regard to the grounds, we did maintain the curtilage in a reasonable manner. Because you did not provide us with the required statement of condition of the premises at the beginning of the lease, you cannot deduct any amount from our deposit for any shrubs, grass, or weeds. The yard is in the exact condition now that it was when you rented it to us, excepting only some backyard grass which has dried out from the 100 degree temperatures that occurred last week, which were not caused by us and also affected most of the neighbors in the area without tree cover. The grass will become green again soon with normal routine watering.

Any shrubs which you allege are in worse condition now than at the beginning of the lease were damaged by the cold weather during winter, which was also not our fault. As for any oral instructions or arrangements that you contend were made, our only obligations as tenants arise solely from the written lease and from applicable statutes, neither of which can be modified by any earlier or later oral agreements. Furthermore, the lease does not specify that tenants are responsible for caring for “special needs” plants or shrubs, nor does it spell out any particular methods for taking care of the grounds. Without such a special obligation in the lease, the reasonable care that we have taken of the grounds, keeping it in the same condition as that of the surrounding neighbors, is legally sufficient.

In our last conversation, you also mentioned an intent to charge against our security deposit for carpet cleaning in the basement when there was no specific damage, spots or stains to the carpet. Carpet cleaning under such conditions is merely normal maintenance and is specifically prohibited by statute.

70-25-201. (3) Cleaning charges may not be imposed for normal maintenance performed on a cyclical basis by the landlord as noted by the landlord at the time that the tenant occupies the space unless the landlord is forced to perform this maintenance because of negligence of the tenant.

(emphasis added).

Because you are not legally entitled to retain any portion of our deposit, and because we have been good, cooperative tenants for the entire lease period, you should consider this a learning experience and make sure that when renting to future tenants, you protect your and your tenants’ rights by complying with all laws applicable to landlords of residential property. Things really can go very smoothly when everyone is obeying the law.

In the case that you do withhold any of our security deposit, in violation of Montana law, we will immediately file a lawsuit claiming all wrongfully withheld amounts, plus court costs and attorneys fees, which are permitted by the Montana Residential Landlord Tenant Act.

70-24-442. Attorney fees -- costs. (1) In an action on a rental agreement or arising under this chapter, reasonable attorney fees, together with costs and necessary disbursements, may be awarded to the prevailing party notwithstanding an agreement to the contrary.

(emphasis added). Our attorney charges $140.00 per hour.

We hope that it will not come to that and that we will be treated fairly and in compliance with Montana law.

Sincerely,

Close 1st letter

[Tenant #1]

[Tenant #2]

A couple of weeks later, my friend received a refund from the landlord minus just one deduction, $149 for the landlord's freezer that was stolen from the garage earlier in the year. I'm certain that without my first letter laying out the legal analysis, there would have been many more deductions.

That last $149 still bothered him because he believes the thief was the landlord's son, or someone to whom the landlord gave keys, and because they also stole gear from his truck the same night. So it was up to me to secure return of that last amount, and I had reserved some of my ammo for just such an occasion.

Here is my second letter to the landlord, wherein I prove that white is black, and black is white, according as I am paid. You may freely copy it for personal use in recovering your own security deposit.

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August 23, 2006

RE: Benton St. security deposit withheld for freezer
Dear Landlord,

This letter is in regard to your itemized statement of withholding $149 from my security deposit for the Benton street rental under a lease which terminated on July 31, 2006.

Your stated reason for the deduction was a damage charge for the freezer that had been stolen from the garage. However, you are not legally entitled to withhold that amount for that reason, and must now return the remainder of the deposit, for several reasons.

A freezer stolen by uninvited trespassers from a locked garage does not constitute "damage" for which a tenant is liable and for which a landlord may withhold any portion of the security deposit. Montana law states this explicitly in the definition of "damage" as it relates to security deposits:

70-25-101. Definitions.
... (2) "Damage" means any and all tangible loss, injury, or deterioration of a leasehold premises caused by the willful or accidental acts of the tenant occupying same or by the tenant's family, licensees, or invitees, as well as any and all tangible loss, injury, or deterioration resulting from the tenant's omissions or failure to perform any duty imposed upon the tenant by law with respect to the leasehold.

Because the loss of the freezer from a locked garage was not damage caused by any of us, our families, invitees, or licensees, but instead by uninvited criminal trespassers, this is not the type of loss for which tenants are responsible and for which a landlord may deduct as "damage" from a rental security deposit.

Deductions from security deposits can only be made for reasons explicitly enumerated in the statutes (cleaning and statutorily defined damage) concerning security deposits and for no other reasons. Because this freezer line item qualifies as neither cleaning, nor damage, the $149.00 that you have withheld from our deposit is wrongfully withheld according to Montana law:

70-25-204. Wrongful withholding of security deposit -- action. (1) A person who wrongfully withholds a residential property security deposit or any portion of the deposit is liable in damages to the tenant in a civil action for an amount equal to the sum determined to have been wrongfully withheld or deducted. The attorney fees may be awarded the prevailing party at the discretion of the court. The burden of proof of damages caused by the tenant to the leasehold premises is on the landlord.

The above statute permits our filing an action for the wrongfully withheld amount of $149, plus attorney fees for filing the action.

Technically, the theft of the freezer by trespassers is a casualty. In case of serious casualty, the law provides that the tenant does not pay for casualty damage, but that the landlord reduces the rent in proportion to the diminution in value after the casualty:

70-24-409. Fire or casualty damage -- rights of tenant. (1) If the dwelling unit or premises are damaged or destroyed by fire or casualty to an extent that enjoyment of the dwelling unit is substantially impaired, the tenant may:
...
(b) if continued occupancy is lawful, vacate any part of the dwelling unit rendered unusable by the fire or casualty, in which case the tenant's liability for rent is reduced in proportion to the diminution in the fair rental value of the dwelling unit.

Although we did not need to vacate any portion of the premises after the theft of our freezer, this law shows that tenants are not charged for casualty damages not caused by the tenant, and that the landlord or the landlord's insurance company is instead responsible for this type of casualty damage.

An additional reason why you are not entitled to withhold this amount, even without application of the legal definition of "damage," as it is used in the context of residential rental security deposits is because of another Montana statute:

70-24-401. The aggrieved party has a duty to mitigate damages.

In this case, you have not mitigated your damages before making deductions from our security deposit. Before we surrendered the premises, we provided you with a replacement freezer in good working order, with similar capacity to the one that was stolen. During the last two days of our tenancy, you entered the property and told me in person that you wanted that new freezer removed from the premises. Not wanting you to charge us for handling abandoned property, we complied with your request to remove the replacement freezer from the premises.

Because it was your own request that the replacement freezer, provided at no cost to you, be removed from the premises, you are now estopped from charging our deposit for another freezer. By ordering us to remove the replacement freezer, you created the extra expense of securing yet another freezer, violating your legal duty to mitigate damages. Because you failed to mitigate damages by accepting the working freezer that we provided, you are not entitled to deduct any amount from our deposit for replacing it again later.

By law, I may not file an action to recover the wrongfully withheld security deposit until after September 1st.

70-25-204(2) An action may not be maintained by a tenant for any amount wrongfully withheld or deducted prior to: ...
(b) the expiration of a 30-day period after the termination of a tenancy;

However, if you return the wrongfully withheld amount of $149.00 prior to September 9th, I will not file my planned lawsuit against you. Otherwise, if I have not received our $149.00 by September 9th, then I will file an action against you in Missoula County on Monday, September 11th to recover that amount, plus attorney fees and court costs as permitted by MCA 70-24-442.

In the case that I must file suit, I will add another count to the complaint that will entitle us to additional damages in the amount of up to 3 times the monthly rental amount. This last count will allege your inclusion of provisions in our rental agreement which are prohibited by law.

The prohibited items that you included in our rental agreement dated July 29, 2005 were paragraph 11, which states:

"I will not remove any furniture, fixtures or personal property until all rent and charges are fully paid and grant the owner a lien on the same."

The other provision that you require your tenants to agree to, despite being legally prohibited, is paragraph 2, which is explicitly contrary to Montana law on the subject of security deposits, breach, and mitigation of damages:

"I agree to place a security deposit of $1,000.00, to be forfeited as liquidated damages in the event of any default or breach of any part of this agreement."

The above provisions are patently illegal and unenforceable. Landlords are not entitled to file liens against tenants' personal property as a function of tenancy, and the law of security deposits in Montana forbids landlords from keeping arbitrary amounts of a security deposit.

70-24-202. Prohibited provisions in rental agreements. A rental agreement may not provide that a party:
      (1) agrees to waive or forego rights or remedies under this chapter;

Since you are also an attorney, it should be clear to you that both of those illegal lease lease provisions require tenants to forego rights guaranteed to them under the Montana Residential Landlord Tenant Act. For this, Montana law also provides tenants a statutory remedy, even without a showing of actual damage arising from those illegal provisions:

70-24-403. Prohibited provision in rental agreement -- unenforceability -- damages. (1) A provision prohibited by 70-24-202 included in a rental agreement is unenforceable.
      (2) If a party purposefully uses a rental agreement containing provisions known by him to be prohibited, the other party may recover, in addition to his actual damages, an amount up to 3 months' periodic rent.

So, in the case that I must file a suit to recover our actual damages of $149, I will also claim the above statutory damages totaling $2,850 ($950/month rent * 3 months), plus recoverable court costs and attorneys fees as permitted by statute.

It would be to your advantage, however, to resolve this prior to September 11th, by remitting the wrongfully withheld $149.00.

Sincerely,

Close 2nd letter

[Tenant]

(I should also metion that between these two letters, I laid a small trap for the landlord should she have made any deductions for cleaning. Montana law states that before any cleaning charges can be deducted from a deposit, the landlord must give the tenant 24 hours to perform that cleaning himself, in order to avoid charges. I knew that she had already promised the house to another tenant on the same day my friend's lease was to expire, and that even if she knew about that statute, she would not have wanted to go through the inconvenience of following it. If she didn't follow it, then any charges for cleaning would have been easy to recover in court, plus additional damages for intentionaly disobeying the law. In any case, this landlord never made a deduction for cleaning charges.)

The day before my deadline given in the second letter, my friend received this from the landlord, along with a check for $149.00.

I am in receipt of your letter dated August 23, 2006 stating that the freezer was taken from a locked garage, yet you stated to me last fall that the garage door was not locked and that you did not report the freezer theft to the police. Therefore, the freezer theft was due to your failure to lock the garage, and amounts to damage. The refrigerator you offered to leave behind did not include a freezer with similar capacity to the lost freezer. A judge with common sense would agree that you are responsible for the replacement freezer cost. Be that as it may, it is not worth my time to further address this matter, and am enclosing a check for $149.00, the cost of the freezer which was withheld from the deposit.

It's clear from her letter that the landlord still thinks she's right about the freezer, but probably sees that she is wrong about everything else and therefore won't take her chances in court.

Granted, my friend should not have told the landlord that he left the garage wide open, and I wish my friends would consult me by cellphone before making damaging public statements. However, even allowing that he might have left the door open, we would need to debate whether that consituted any comparative negligence in a quiet Missoula neighborhood, and even if it did, my friend's omission was not the proximate cause of the freezer being stolen. The superceding and intervening cause of it's loss was solely the intentional act of an uninvited trespasser. Such a criminal act would break any chain of causation caused by acts or omissions of my client, and render my client not legally responsible for the loss.

An uninvited trespasser could have just as easily set the whole garage on fire, and by the same reasoning, the landlord would not be able to charge the smoking pile of debris against my friend's deposit.

Though there's a small chance she's right about the freezer (very small, don't bet on it), she's almost certainly wrong on the other items mentioned in my second letter which could cause her losses upwards of $3,000.00. That's why it's good to have many arguments, as long as each is strong.

Since this landlord also happened to be a (non-practicing) lawyer, she could recognize her risk, and also her disadvantage in being held to a higher standard regarding knowledge of landlord-tenant law.

If your landlord is just some old codger who doesn't consult lawyers and goes on just as he did in feudal times before tenant protection laws existed, then you might really have to sue him. And you should. It will help improve the quality of landlords and their business practices in your area.

Actually, I am sad that Landlord did not take us on. I was looking forward to splitting the take with my friend, 90% for me and 10% for him.