What expungement Statute in Utah Has Been Changed?
Full Question:
Answer:
I think you are referring to 77-18-12 (2)(f). Please see the relevant statutes below.
The following are the Utah expungement statutes:
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 78A-2-301(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) A person convicted of a crime may petition the convicting court
for an expungement of the record of conviction as provided in this section.
(b) If a person has received a pardon from the Utah Board of Pardons and
Parole, the person is entitled to an expungement of all pardoned crimes,
subject to the exceptions under Subsection 77-18-12(1)(a).
(2)(a) The court shall require receipt of a certificate of eligibility
issued by the division under 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 63J-1-303.
(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 Section 77-18-12.
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)(n); or
(viii) an attempt, solicitation, or conspiracy to commit any offense
listed in Subsection 77-27-21.5(1)(n);
(b) the petitioner's record includes two or more convictions for any type
of offense that would be a felony under Utah law and that do not arise out
of a single criminal episode, regardless of the jurisdiction in which the
convictions occurred, unless the petitioner has received a pardon from the
Board of Pardons and Parole for either or both of the convictions;
(c) the petitioner has previously obtained expungement in any
jurisdiction of a crime which would be a felony under Utah law;
(d) the petitioner has previously obtained expungement in any
jurisdiction of two or more convictions which would be misdemeanors under
Utah law unless the convictions would be class B or class C misdemeanors
under Utah law 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
provided in Subsection (2), of a crime that would be a felony, misdemeanor,
or infraction under Utah law;
(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 a class B or class A misdemeanor or a felony under
Utah law, and including any misdemeanor and felony convictions previously
expunged, regardless of the jurisdiction in which the conviction or
expungement occurred, unless the petitioner has received a pardon from the
Board of Pardons and Parole for one or more of the convictions;
(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 and
Parole 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;
(e) six years in the case of multiple class C misdemeanors;
(f) 12 years in the case of multiple class B misdemeanors; or
(g) 15 years in the case of multiple class A 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:
(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 63G-2-305 and are accessible only as provided under Title 63G,
Chapter 2, Part 2, Access to Records.
