What is a set-aside in South Dakota, and does it clear my record?

A set-aside (SDCL § 23A-27-17) is a court order acknowledging that you have completed your sentence and demonstrated rehabilitation. It does not erase your conviction — the record remains visible on background checks with a notation that it was set aside. However, a set-aside restores certain civil rights and can signal to employers that you have moved forward. It is worth pursuing even though the record remains visible.

Can I get my record expunged in South Dakota?

Expungement in South Dakota is very limited. It is generally only available for arrest records where charges were never filed, were dismissed, or resulted in acquittal. Convictions — even set-aside convictions — cannot be expunged from the record. The set-aside process is the closest option for people with convictions.

Can a South Dakota employer refuse to hire me because of an old conviction?

Yes. South Dakota has no state law preventing employers from considering old convictions, and there is no requirement to evaluate whether the conviction is relevant to the job. Federal EEOC guidance recommends considering the nature of the offense, time elapsed, and job relevance, but this is not mandated by South Dakota law.

Does a set-aside restore my gun rights in South Dakota?

A set-aside may restore state-level firearm rights for certain offenses, but federal firearms prohibitions under 18 U.S.C. § 922(g) may still apply to felony convictions. Whether a South Dakota set-aside qualifies as a restoration of rights under federal law is a complex legal question — consult an attorney before purchasing or possessing firearms after a felony conviction.

Will a dismissed charge show up on a South Dakota background check?

A dismissed charge may appear on a background check unless you have petitioned for expungement of the arrest record under SDCL § 23A-3-27. Once expunged, the arrest record should not appear on standard background checks.

Does South Dakota have any automatic record clearing?

No. South Dakota does not have a Clean Slate law or any automatic record-clearing mechanism. The set-aside process requires filing a petition with the court. There is no automatic sealing or expungement of conviction records.

South Dakota Background Check Laws

No state lookback limitLast updated: 2026-04-01

South Dakota has no state lookback limit — convictions appear on background checks indefinitely. There is no ban-the-box law and no Clean Slate law. South Dakota allows set-aside of convictions (SDCL § 23A-27-17), but set-aside records remain visible on background checks.

Overview

South Dakota does not impose a state-level time limit on how far back employers can look at criminal convictions. Under the federal Fair Credit Reporting Act (FCRA), convictions can be reported indefinitely, and South Dakota has no stricter state law. A conviction from decades ago can still appear on a standard employment background check. South Dakota does not have a ban-the-box law for either public or private employers. Employers can ask about criminal history at any point in the hiring process. South Dakota does not have a Clean Slate law. However, the state does offer a set-aside process under SDCL § 23A-27-17, which allows eligible individuals to petition the court to set aside their conviction after completing their sentence. A set-aside does not erase the record — the conviction remains visible on background checks — but it restores certain civil rights and can demonstrate rehabilitation to potential employers. Expungement is very limited and generally only available for arrests that did not result in conviction.

How Far Back Does a Background Check Go in South Dakota?

Record Type	Rule in South Dakota
Felony Convictions	Reported indefinitely. No state time limit on felony conviction reporting.
Misdemeanor Convictions	Reported indefinitely. No state time limit on misdemeanor conviction reporting.
All Convictions	No state limit. Convictions can be reported indefinitely under FCRA defaults. South Dakota has no statute restricting how far back consumer reporting agencies can report criminal convictions.
Arrests (No Conviction)	Under the FCRA, arrests that did not lead to conviction can be reported for up to 7 years. South Dakota does not impose a stricter limit.
Pending Cases	Pending charges can be reported and considered by employers. South Dakota does not restrict reporting of pending criminal cases.

Ban the Box / Fair Chance

No statewide law

South Dakota does not have a ban-the-box law at the state level for either public or private employers. Employers can ask about criminal history on job applications and at any stage of the hiring process. No South Dakota cities have enacted local ban-the-box ordinances as of 2026.

Clean Slate / Auto-Sealing

No Clean Slate law

South Dakota does not have a Clean Slate law. The state offers a set-aside process (SDCL § 23A-27-17) that allows individuals who have completed their sentence to petition the court to set aside their conviction. A set-aside restores certain civil rights (such as the right to possess firearms for some offenses), but the conviction remains on the individual's record and is still visible on background checks. Expungement is only available for arrests that did not result in conviction.

What Employers Can Do in South Dakota

When can employers ask about criminal history?: South Dakota employers — both public and private — can ask about criminal history at any point in the hiring process, including on the initial job application. There are no state restrictions on timing.
What can they consider?: South Dakota employers can consider any conviction regardless of age or relevance to the job. There is no state law requiring employers to evaluate the relationship between a conviction and the position. Federal EEOC guidance recommends individualized assessment, but it is not mandated by state law.
Individualized assessment required?: No state requirement for individualized assessment, though EEOC guidance recommends it.

Key Laws in South Dakota

SDCL § 23A-27-17 (Set-Aside of Conviction)
Allows individuals who have completed their sentence to petition the court to set aside their conviction. Restores certain civil rights but does not erase the conviction from the record. The set-aside notation appears alongside the original conviction on background checks.
SDCL § 23A-3-27 (Expungement of Arrest Records)
Provides for expungement of arrest records when charges were dismissed, not filed, or resulted in acquittal. Limited to non-conviction records.
Fair Credit Reporting Act (FCRA) — Federal(1970)
Federal law governing background check agencies. Allows reporting of convictions indefinitely but limits reporting of non-conviction arrests to 7 years. Requires applicant consent before running a background check.

Frequently Asked Questions — South Dakota

How far back does a background check go in South Dakota?: South Dakota has no state limit on how far back criminal convictions can be reported. Under the FCRA, convictions can appear indefinitely. Arrests that did not lead to conviction are limited to 7 years under federal law. A decades-old conviction will still appear on a South Dakota background check.
Does South Dakota have ban-the-box?: No. South Dakota does not have a ban-the-box law for either public or private employers. Employers can ask about criminal history on job applications and at any point during the hiring process.
What is a set-aside in South Dakota, and does it clear my record?: A set-aside (SDCL § 23A-27-17) is a court order acknowledging that you have completed your sentence and demonstrated rehabilitation. It does not erase your conviction — the record remains visible on background checks with a notation that it was set aside. However, a set-aside restores certain civil rights and can signal to employers that you have moved forward. It is worth pursuing even though the record remains visible.
Can I get my record expunged in South Dakota?: Expungement in South Dakota is very limited. It is generally only available for arrest records where charges were never filed, were dismissed, or resulted in acquittal. Convictions — even set-aside convictions — cannot be expunged from the record. The set-aside process is the closest option for people with convictions.
Can a South Dakota employer refuse to hire me because of an old conviction?: Yes. South Dakota has no state law preventing employers from considering old convictions, and there is no requirement to evaluate whether the conviction is relevant to the job. Federal EEOC guidance recommends considering the nature of the offense, time elapsed, and job relevance, but this is not mandated by South Dakota law.
Does a set-aside restore my gun rights in South Dakota?: A set-aside may restore state-level firearm rights for certain offenses, but federal firearms prohibitions under 18 U.S.C. § 922(g) may still apply to felony convictions. Whether a South Dakota set-aside qualifies as a restoration of rights under federal law is a complex legal question — consult an attorney before purchasing or possessing firearms after a felony conviction.
Will a dismissed charge show up on a South Dakota background check?: A dismissed charge may appear on a background check unless you have petitioned for expungement of the arrest record under SDCL § 23A-3-27. Once expunged, the arrest record should not appear on standard background checks.
Does South Dakota have any automatic record clearing?: No. South Dakota does not have a Clean Slate law or any automatic record-clearing mechanism. The set-aside process requires filing a petition with the court. There is no automatic sealing or expungement of conviction records.

South Dakota Resources

South Dakota Division of Criminal Investigation — Criminal Records
The state agency that maintains criminal history records. You can request your own criminal history record here.
South Dakota Unified Judicial System — Set-Aside Information
Information about the court process for setting aside convictions in South Dakota, including forms and procedures.
East River Legal Services
Provides free legal assistance to low-income South Dakotans in the eastern part of the state, including help with criminal record issues.
Dakota Plains Legal Services
Provides free legal assistance to low-income and Native American residents in central and western South Dakota.

Disclaimer: This is informational only, not legal advice. Background check laws change frequently. Consult a qualified attorney in South Dakota for advice about your specific situation. Information was last verified on 2026-04-01.

Sources

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