Utah Expungement Law

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§ 77-18-9. Definitions

As used in this chapter:
(1) "Administrative finding" means a decision upon a question of fact reached by an administrative agency following an administrative hearing or other procedure satisfying the requirements of due process.

(2) "Certificate of eligibility" means a document issued by the division stating that the criminal record which is the subject of a petition for expungement is eligible for expungement.

(3) "Conviction" means judgment by a criminal court on a verdict or finding of guilty after trial, a plea of guilty, or a plea of nolo contendere.

(4) "Division" means the Criminal Investigations and Technical Services Division of the Department of Public Safety established in Section 53-10- 103.

(5) "Expungement" means the sealing or destruction of a criminal record, including records of the investigation, arrest, detention, or conviction of the petitioner.

(6) "Jurisdiction" means an area of authority.

(7) "Petitioner" means a person seeking expungement under this chapter.

(8) Second degree forcible felony includes:
(a) aggravated assault, if the person intentionally causes serious bodily injury;
(b) aggravated assault by a prisoner;
(c) aggravated assault on school premises;
(d) intentional child abuse;
(e) criminally negligent automobile homicide;
(f) reckless child abuse homicide;
(g) mayhem;
(h) manslaughter;
(i) kidnaping;
(j) forcible sexual abuse;
(k) robbery;
(l) felony fleeing causing death or serious bodily injury; or
(m) delivery of an explosive to a common carrier.

§ 77-18-10. Petition--Expungement of records of arrest, investigation, and detention--Eligibility conditions--No filing fee

(1) A person who has been arrested with or without a warrant may petition the court in which the proceeding occurred or, if there were no court proceedings, any court in the jurisdiction where the arrest occurred, for an order expunging any and all records of arrest, investigation, and detention which may have been made in the case, subject to the following conditions:
(a) at least 30 days have passed since the arrest for which expungement is sought;
(b) there have been no intervening arrests; and
(c) one of the following occurred:
(i) the person was released without the filing of formal charges;
(ii) proceedings against the person were dismissed;
(iii) the person was discharged without a conviction and no charges were refiled within 30 days;
(iv) the person was acquitted at trial; or
(v) the record of any proceedings against the person has been sealed.

(2)(a) A person seeking expungement under Subsection (1) may petition the court for expungement before the expiration of the 30 days required by Subsection (1)(a) if he believes extraordinary circumstances exist and the court orders the division to proceed with the eligibility process.
(b) A court may, with the receipt of a certificate of eligibility, order expungement if the court finds that the petitioner is eligible for relief under this subsection and in the interest of justice the order should be issued prior to the expiration of the 30-day period required by Subsection (1)(a).

(3) As provided in Subsection 78-7-35(1)(i), there is no fee for a petition filed under Subsection (2).

(4) The petitioner shall file a certificate of eligibility issued by the division to be reviewed by the prosecuting attorney and the court prior to issuing an order granting the expungement.

(5) If the court finds that the petitioner is eligible for relief under this section, it shall issue an order granting the expungement.

(6) No filing fees or other administrative charges shall be assessed against a successful petitioner under this section.

(7) A person who has received expungement of an arrest under this section may respond to any inquiry as though the arrest did not occur, unless otherwise provided by law.

§ 77-18-11. Petition--Expungement of conviction--Certificate of eligibility--Fee--Notice--Written evaluation--Objections--Hearing

(1) A person convicted of a crime may petition the convicting court for an expungement of the record of conviction.

(2)(a) The court shall require receipt of a certificate of eligibility issued by the division under HYPERLINK

Section 77-18-12.

(b) The fee for each certificate of eligibility is $25. This fee remains in effect until changed by the division through the process under Section 63- 38-3.2.

(c) Funds generated under Subsection (2)(b) shall be deposited in the General Fund as a dedicated credit by the department to cover the costs incurred in providing the information.

(3) The petition and certificate of eligibility shall be filed with the court and served upon the prosecuting attorney and the Department of Corrections.

(4) A victim shall receive notice of a petition for expungement if, prior to the entry of an expungement order, the victim or, in the case of a minor or a person who is incapacitated or deceased, the victim's next of kin or authorized representative, submits a written and signed request for notice to the office of the Department of Corrections in the judicial district in which the crime occurred or judgment was entered.

(5) The Department of Corrections shall serve notice of the expungement request by first-class mail to the victim at the most recent address of record on file with the department. The notice shall include a copy of the petition, certificate of eligibility, and statutes and rules applicable to the petition.

(6) The court in its discretion may request a written evaluation by Adult Parole and Probation of the Department of Corrections.
(a) The evaluation shall include a recommendation concerning the petition for expungement.
(b) If expungement is recommended, the evaluation shall include certification that the petitioner has completed all requirements of sentencing and probation or parole and state any rationale that would support or refute consideration for expungement.
(c) The conclusions and recommendations contained in the evaluation shall be provided to the petitioner and the prosecuting attorney.

(7) If the prosecuting attorney or a victim submits a written objection to the court concerning the petition within 30 days after service of the notice, or if the petitioner objects to the conclusions and recommendations in the evaluation within 15 days after receipt of the conclusions and recommendations, the court shall set a date for a hearing and notify the prosecuting attorney for the jurisdiction, the petitioner, and the victim of the date set for the hearing.

(8) Any person who has relevant information about the petitioner may testify at the hearing.

(9) The prosecuting attorney may respond to the court with a recommendation or objection within 30 days.

(10) If an objection is not received under Subsection (7), the expungement may be granted without a hearing.

(11) A court may not expunge a conviction of:
(a) a capital felony;
(b) a first degree felony;
(c) a second degree forcible felony;
(d) any sexual act against a minor; or
(e) an offense for which a certificate of eligibility may not be issued under HYPERLINK "http://web2.westlaw.com/find/default.wl?rp=%2ffind%2fdefault.wl&vc=0&DB=1000511&DocName=UTSTS77%2D18%2D12&FindType=L&AP=&fn=_top&rs=WLW7.06&mt=Westlaw&vr=2.0&sv=Split" "_top" Section 77-18-12.

HYPERLINK "http://web2.westlaw.com/find/default.wl?rp=%2ffind%2fdefault.wl&vc=0&DB=UT%2DST%2DANN&DocName=LK%28UTSTS77%2D18%2D12%29&FindType=l&AP=&fn=_top&rs=WLW7.06&mt=Westlaw&vr=2.0&sv=Split" "_top" 77-18-12. Grounds for denial of certificate of eligibility--Effect of prior convictions

(1) The division shall issue a certificate of eligibility to a petitioner seeking to obtain expungement for a criminal record unless prior to issuing a certificate of eligibility the division finds, through records of a governmental agency, including national criminal data bases that:
(a) the conviction for which expungement is sought is:
(i) a capital felony;
(ii) a first degree felony;
(iii) a second degree forcible felony;
(iv) automobile homicide;
(v) a felony violation of Section 41-6a-502;
(vi) a conviction involving a sexual act against a minor;
(vii) any registerable sex offense as defined in Subsection 77-27-21.5(1)(f); or
(viii) an attempt, solicitation, or conspiracy to commit any offense listed in Subsection 77-27-21.5(1)(f);
(b) the petitioner's record includes two or more convictions for any type of offense which would be classified as a felony under Utah law, not arising out of a single criminal episode, regardless of the jurisdiction in which the convictions occurred;
(c) the petitioner has previously obtained expungement in any jurisdiction of a crime which would be classified as a felony in Utah;
(d) the petitioner has previously obtained expungement in any jurisdiction of two or more convictions which would be classified as misdemeanors in Utah unless the convictions would be classified as class B or class C misdemeanors in Utah and 15 years have passed since these misdemeanor convictions;
(e) the petitioner was convicted in any jurisdiction, subsequent to the conviction for which expungement is sought and within the time periods as provided in Subsection (2), of a crime which would be classified in Utah as a felony, misdemeanor, or infraction;
(f) the petitioner has a combination of three or more convictions not arising out of a single criminal episode including any conviction for an offense which would be classified under Utah law as a class B or class A misdemeanor or as a felony, including any misdemeanor and felony convictions previously expunged, regardless of the jurisdiction in which the conviction or expungement occurred;
(g) a proceeding involving a crime is pending or being instituted in any jurisdiction against the petitioner; or
(h) the petitioner has not paid the full amount of court ordered restitution pursuant to Section 77-38a-302, or by the Board of Pardons pursuant to Section 77-27-6 on the conviction for which the person is seeking an expungement.

(2) A conviction may not be included for purposes of Subsection (1)(e), and a conviction may not be considered for expungement until, after the petitioner's release from incarceration, parole, or probation, whichever occurs last and all fines ordered by the court have been satisfied, at least the following period of time has elapsed:
(a) seven years in the case of a felony;
(b) ten years in the case of:
(i) a misdemeanor conviction or the equivalent of a misdemeanor conviction as defined in Subsection 41-6a-501(2); or
(ii) a felony violation of Subsection 58-37-8(2)(g);
(c) five years in the case of a class A misdemeanor;
(d) three years in the case of any other misdemeanor or infraction under Title 76, Utah Criminal Code; or
(e) 15 years in the case of multiple class B or class C misdemeanors.

(3) A petitioner who would not be eligible to receive a certificate of eligibility under Subsection (1)(d) or (f) may receive a certificate of eligibility for one additional expungement if at least 15 years have elapsed since the last of any of the following:
(a) release from incarceration, parole, or probation relating to the most recent conviction; and
(b) any other conviction which would have prevented issuance of a certificate of eligibility under Subsection (1)(e).

(4) If, after reasonable research, a disposition for an arrest on the criminal history file is unobtainable, the division may issue a special certificate giving discretion of eligibility to the court.

§ 77-18-13. Hearing--Standard of proof--Exception

(1) The court shall review the petition, certificate of eligibility, and any written evaluation and receive any testimony or writing submitted by a victim or prosecuting attorney.

(2) The court shall issue a certificate to the petitioner, stating the court's finding that the petition and certificate of eligibility are sufficient and the statutory requirements for expungement have been satisfied unless there is clear and convincing evidence to persuade the court that it would be contrary to the interest of the public to grant a requested expungement.

(3) Except as otherwise provided by law, a person receiving expungement of a conviction under this section may respond to any inquiry as though the conviction did not occur.

§ 77-18-14. Order to expunge--Distribution of order--Redaction--Receipt of order--Administrative proceedings--Division requirements

(1) Except as otherwise provided in this chapter, upon approval of a petition for expungement, the court shall enter an order to expunge all records in the petitioner's case which are in the custody of that court or in the custody of any other court, agency, or official.

(2) The petitioner shall be responsible for service of the order of expungement to all affected state, county, and local entities, agencies, and officials including the court, arresting agency, booking agency, Department of Corrections, and the division.

(3) The division shall forward a copy of the expungement order to the Federal Bureau of Investigation.

(4) In order to avoid destruction or sealing of the records in whole or in part, any state, county, or local entity, agency, or official receiving an expungement order shall only expunge all references to the petitioner's name. The petitioner, based on good cause, may petition the court to expunge the records in whole or in part.

(5) No state, county, or local entity, agency, or official may, after receiving service of an expungement order, divulge information contained in the expunged portion of the record.

(6)(a) An order of expungement shall not restrict an agency's use or dissemination of records in its ordinary course of business until the agency has received service of a copy of the order.
(b) Any action taken by an agency after issuance of the order but prior to the agency's receipt of a copy of the order may not be invalidated by the order.

(7) An order of expungement may not:
(a) terminate or invalidate any pending administrative proceedings or actions of which the petitioner had notice according to the records of the administrative body prior to issuance of the expungement order;
(b) affect the enforcement of any order or findings issued by an administrative body pursuant to its lawful authority prior to issuance of the expungement order; or
(c) remove any evidence relating to the petitioner including records of arrest, which the administrative body has used or may use in these proceedings.

(8) The division shall provide the petitioner with a list of the agencies affected by this subsection with clear written directions regarding the requirements of this section.

§ 77-18-15. Retention of expunged records--Agencies

(1) The division shall keep, index, and maintain all expunged records of arrests and convictions.

(2) Employees of the division may not divulge any information contained in its index to any person or agency without a court order, except to the following:
(a) the Board of Pardons and Parole;
(b) the Peace Officer Standards and Training;
(c) federal authorities, unless prohibited by federal law;
(d) the Division of Occupational and Professional Licensing; and
(e) the State Office of Education.

(3) The division may also use the information in its index for the purpose of establishing good character for issuance of a concealed firearm permit as provided in Section 53-5-704.

(4) A person whose records are released under Subsection (2) shall be given a reasonable opportunity by the recipient agency to challenge and explain any information in the records and to challenge the relevancy of that information before a final determination is made by the agency.

(5) A court may permit inspection or release of an expunged record only upon petition by the person who is the subject of the record and only to the persons named in the petition.

(6)(a) For judicial sentencing, a court may order any records sealed under this section to be opened and admitted into evidence.
(b) The records are confidential and are available for inspection only by the court, parties, counsel for the parties, and any other person who is authorized by the court to inspect them.
(c) At the end of the action or proceeding, the court shall order the records sealed again.

(7) Records released under this section are classified as protected under Section 63-2-304 and are accessible only as provided under Title 63, Chapter 2, Part 2, Access to Records.

§ 77-18-16. Penalty

Any person who willfully violates any prohibition in this chapter is guilty of a class A misdemeanor.

§ 77-18-17. Retroactive application

The provisions of Sections 77-18-9 through 77-18-17 apply retroactively to all arrests and convictions regardless of the date on which the arrests were made or convictions were entered.

Utah Domestic Violence Definition

(2) "Domestic violence" means any criminal offense involving violence or physical harm or threat of violence or physical harm, or any attempt, conspiracy, or solicitation to commit a criminal offense involving violence or physical harm, when committed by one cohabitant against another. "Domestic violence" also means commission or attempt to commit, any of the following offenses by one cohabitant against another:
(a) aggravated assault, as described in Section 76-5-103;
(b) assault, as described in Section 76-5-102;
(c) criminal homicide, as described in Section 76-5-201;
(d) harassment, as described in Section 76-5-106;
(e) electronic communication harassment, as described in Section 76-9-201;
(f) kidnapping, child kidnapping, or aggravated kidnapping, as described in
sections 76-5-301, 76-5-301.1, and 76-5-302;
(g) mayhem, as described in Section 76-5-105;
(h) sexual offenses, as described in Title 76, Chapter 5, Part 4, Sexual
Offenses, and Title 76, Chapter 5a, Sexual Exploitation of Children;
(i) stalking, as described in Section 76-5-106.5;
(j) unlawful detention, as described in Section 76-5-304;
(k) violation of a protective order or ex parte protective order, as described in Section 76-5-108;
(l) any offense against property described in Title 76, Chapter 6, Part 1, Property Destruction, 2, Burglary and Criminal Trespass, or 3, Robbery;
(m) possession of a deadly weapon with intent to assault, as described in Section 76-10-507;
(n) discharge of a firearm from a vehicle, near a highway, or in the direction of any person, building, or vehicle, as described in Section 76-10-508;
(o) disorderly conduct, as defined in Section 76-9-102, if a conviction of disorderly conduct is the result of a plea agreement in which the defendant was originally charged with any of the domestic violence offenses otherwise
described in this Subsection (2). Conviction of disorderly conduct as a domestic violence offense, in the manner described in this Subsection
(2)(o), does not constitute a misdemeanor crime of domestic violence under 18 U.S.C. Section 921, and is exempt from the provisions of the federal Firearms Act, 18 U.S.C. Section 921 et seq.; or
(p) child abuse as described in Section 76-5-109.1.
(3) "Victim" means a cohabitant who has been subjected to domestic violence.