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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.

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Attorney Stephen Howard practices as part of the Canyons Law Group, LLC and Stephen W. Howard, PC.

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340 East 400 South, Suite 25, Salt Lake City, UT 84111
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