Utah Expungement Act - 2017 SB12 Amendments
A criminal record can hold you back in your career, make it more
difficult to rent an apartment or get a mortgage loan, restrict your
rights to possess or use a firearm, and much more. In 2017, the Utah
State Legislature passed SB12, which included certain amendments to the
Utah Expungement Act that expanded the
eligibility
rules for
expungement, opening the door for more individuals to have
their prior
criminal records cleared. (SB12 also made minor changes to the
402 reduction process under Utah Code 76-3-402.)
This page contains some of the 2017 amendments to the Utah Expungement
Act, with brief explanations (
in
italics) of some of the most important changes. For help
in clearing your record, whether through an expungement,
402
reduction,
or pardon,
contact us
today to see how we can help you.
77-40-102.
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) "Agency" means a state, county, or
local government entity that generates or maintains records relating to
an investigation, arrest, detention, or conviction for an offense for
which expungement may be ordered.
(3) "Bureau" means the Bureau of Criminal
Identification of the Department of Public Safety established in
Section 53-10-201.
(4) "Certificate of eligibility" means a
document issued by the bureau stating that the criminal record and all
records of arrest, investigation, and detention associated with a case
that is the subject of a petition for expungement is eligible for
expungement.
(5) "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.
(6) "Department" means the Department of
Public Safety established in Section 53-1-103.
(7) "Drug possession offense" means an
offense under:
(a) Subsection 58-37-8(2), except any
offense under Subsection 58-37-8(2)(b)(i), possession of 100 pounds or
more of marijuana, any offense enhanced under Subsection 58-37-8(2)(e),
violation in a correctional facility or Subsection 58-37-8(2)(g),
driving with a controlled substance illegally in the person's body and
negligently causing serious bodily injury or death of another;
(b) Subsection 58-37a-5(1), use or
possession of drug paraphernalia;
(c) Section 58-37b-6, possession or use
of an imitation controlled substance; or
(d) any local ordinance which is
substantially similar to any of the offenses described in this
Subsection (7).
(8) "Expunge" means to seal or otherwise
restrict access to the petitioner's record held by an agency when the
record includes a criminal investigation, detention, arrest, or
conviction.
(9) "Jurisdiction" means a state,
district, province, political subdivision, territory, or possession of
the United States or any foreign country.
The new subsection 10
adds a definition of "minor regulatory offense" to the Expungement Act.
Prior to the 2017 amendments, a person could be excluded from
expungement eligibility based on minor offenses which may have never
even required a court date and for offenses which were established by
regulatory agencies rather than by the legislature itself. The 2017
amendments provides that these "minor regulatory offenses" are no
longer considered in determining expungement eligibility.
(10) "Minor regulatory offense" means any class B or C misdemeanor
offense, as well as any local ordinance, except:
(a) any drug possession offense;
(b) Title 41, Chapter 6a, Part 5, Driving Under the Influence and
Reckless Driving;
(c) Sections 73-18-13 through 73-18-13.6;
(d) those defined in Title 76, Utah Criminal Code; or
(e) any local ordinance that is substantially similar to those offenses
listed in Subsections (10)(a) through (d).
(11) "Petitioner" means a person seeking expungement under this chapter.
The revised subsection
12 expands the definition of "traffic offense" substantially. Prior to
the 2017 amendments, there were a number of common traffic violations
that were still considered misdemeanor offenses and could disqualify a
person from expungement eligibility. Under the 2015 Justice
Reinvestment Initiative (JRI), Utah's Traffic Code was amended to
reduce many of these traffic violations to the infraction level. New
convictions for these charges would no longer be considered in
determining expungement eligibility. But for individuals with prior
traffic convictions, the 2015 JRI did nothing to change the level of
those convictions. As misdemeanor offenses, traffic offenses such as
driving on expired registration, driving without a license in
possession, and driving without proof of insurance still counted
against expungement eligibility. Under the 2017 amendments to
the Expungement Act, convictions for these minor traffic offenses were
no longer considered in determining expungement eligibility.
(12) (a) "Traffic offense"
means:
(i) all infractions, class B misdemeanors, and class C misdemeanors in
Title 41, Chapter 6a, Traffic Code;
(ii) Title 53, Chapter 3, Part 2, Driver Licensing Act;
(iii) Title 73, Chapter 18, State Boating Act; and
(iv) all local ordinances that are substantially similar to those
offenses.
b) "Traffic offense" does not mean:
(i) Title 41, Chapter 6a, Part 5, Driving Under the Influence and
Reckless Driving;
(ii) Sections 73-18-13 through 73-18-13.6; or
(iii) any local ordinance that is substantially similar to the offenses
listed in
Subsections (12)(b)(i) and (ii).
77-40-105.
Eligibility for expungement of conviction --
Requirements.
(1) A person convicted of an offense may
apply to the bureau for a certificate of eligibility to expunge the
record of conviction as provided in this section.
(2) A petitioner is not eligible to
receive a certificate of eligibility from the bureau if:
(a) the conviction for which expungement
is sought is:
(i) a capital felony;
(ii) a first degree felony;
(iii) a violent felony as defined in
Subsection 76-3-203.5(1)(c)(i);
(iv) felony automobile homicide;
(v) a felony violation of Subsection
41-6a-501(2); or
(vi) a registerable sex offense as
defined in Subsection 77-41-102(17);
(b) a criminal proceeding is pending
against the petitioner; or
(c) the petitioner intentionally or
knowingly provides false or misleading information on the application
for a certificate of eligibility.
(3) A petitioner seeking to obtain
expungement for a record of conviction is not eligible to receive a
certificate of eligibility from the bureau until all of the following
have occurred:
(a) all fines and interest ordered by the
court have been paid in full;
(b) all restitution ordered by the court
pursuant to Section 77-38a-302, or by the Board of Pardons and Parole
pursuant to Section 77-27-6, has been paid in full; and
(c) the following time periods have
elapsed from the date the petitioner was convicted or released from
incarceration, parole, or probation, whichever occurred last, for each
conviction the petitioner seeks to expunge:
(i) 10 years in the case of a misdemeanor
conviction of Subsection 41-6a-501(2) or a felony conviction of
Subsection 58-37-8(2)(g);
(ii) seven years in the case of a felony;
(iii) five years in the case of any class
A misdemeanor or a felony drug possession offense;
(iv) four years in the case of a class B
misdemeanor; or
(v) three years in the case of any other
misdemeanor or infraction.
The
amended language of subsection 4 eliminates a large number of
misdemeanor offenses that would have previously prevented many
otherwise well-qualified individuals from obtaining an expungement. By
eliminating these minor offenses from consideration, expungement
eligibility is significantly expanded.
(4) The bureau may not count infractions,
traffic offenses, or minor regulatory offenses when determining
expungement eligibility.
(5) The bureau may not issue a
certificate of eligibility if, at the time the petitioner seeks a
certificate of eligibility, the bureau determines that the petitioner's
criminal history, including previously expunged convictions, contains
any of the following, except as provided in Subsection (8):
(a) two or more felony convictions other
than for drug possession offenses, each of which is contained in a
separate criminal episode;
(b) any combination of three or more
convictions other than for drug possession offenses that include two
class A misdemeanor convictions, each of which is contained in a
separate criminal episode;
(c) any combination of four or more
convictions other than for drug possession offenses that include three
class B misdemeanor convictions, each of which is contained in a
separate criminal episode; or
(d) five or more convictions other than
for drug possession offenses of any degree whether misdemeanor or
felony, each of which is contained in a separate criminal episode.
(6) The bureau may not issue a
certificate of eligibility if, at the time the petitioner seeks a
certificate of eligibility, the bureau determines that the petitioner's
criminal history, including previously expunged convictions, contains
any of the following:
(a) three or more felony convictions for
drug possession offenses, each of which is contained in a separate
criminal episode; or
(b) any combination of five or more
convictions for drug possession offenses, each of which is contained in
a separate criminal episode.
(7) If the petitioner's criminal history
contains convictions for both a drug possession offense and a non drug
possession offense arising from the same criminal episode, that
criminal episode shall be counted as provided in Subsection (4) if any
non drug possession offense in that episode:
(a) is a felony or class A misdemeanor; or
(b) has the same or a longer waiting
period under Subsection (3) than any drug possession offense in that
episode.
The
new subsection 8 increases the number of convictions for which a person
may be eligible to have expunged, if at least 10 years have passed
since the end of incarceration, probation, or parole (whichever
occurred last).
(8) If at least 10 years have elapsed
from the date the petitioner was convicted or released from
incarceration, parole, or probation, whichever occurred last, for all
convictions, then each eligibility limit defined in Subsection (5)
shall be increased by one.
(9) If, prior to May 14, 2013, the
petitioner has received a pardon from the Utah Board of Pardons and
Parole, the petitioner is entitled to an expungement order for all
pardoned crimes pursuant to Section 77-27-5.1.
Finding an Expungement Attorney in Utah
We have helped clients through the expungement process, successfully
obtaining expungements in a wide range of cases. For help in clearing
your past criminal record,
contact
us today to see what we can do for you.