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S.B. 65 Enrolled

    

EXPUNGEMENT OF CRIMINAL RECORD AMENDMENTS

    
1998 GENERAL SESSION

    
STATE OF UTAH

    
Sponsor: Pete Suazo

    AN ACT RELATING TO THE CODE OF CRIMINAL PROCEDURES; DEFINING SECOND
    DEGREE FORCIBLE FELONY FOR EXPUNGEMENT PURPOSES; AMENDING THE
    EXPUNGEMENT PROCESS WITH RESPECT TO CERTIFICATES OF ELIGIBILITY,
    MISDEMEANORS, AND SEXUAL OFFENSES; AND MAKING TECHNICAL CHANGES.
    This act affects sections of Utah Code Annotated 1953 as follows:
    AMENDS:
         77-18-9, as enacted by Chapter 143, Laws of Utah 1994
         77-18-10, as last amended by Chapter 35, Laws of Utah 1996
         77-18-11, as last amended by Chapter 35, Laws of Utah 1996
         77-18-12, as last amended by Chapter 35, Laws of Utah 1996
    Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 77-18-9 is amended to read:
         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 Law Enforcement and Technical Services Division of the
    Department of Public Safety.
        (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.
        Section 2. Section 77-18-10 is amended to read:
         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;

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        (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 [under Section
    77-18-13].
        (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 21-1-5(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.
        Section 3. Section 77-18-11 is amended to read:
         77-18-11. Petition -- Expungement of conviction -- Certificate of eligibility -- 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) The court shall require receipt of a certificate of eligibility issued by the division under

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    Section 77-18-12.
        (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[, except that a written evaluation shall be required for
    any conviction of a sexual offense under Title 76, Chapter 5, Part 4, Sexual Offenses, and Title 76,
    Chapter 5a, Sexual Exploitation of Children, or of any sexual act against a minor].
        (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.

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        (9) The prosecuting attorney may respond to the court with a recommendation or objection
    within 30 days.
        [(9)] (10) If an objection is not received under Subsection (7), the expungement may be
    granted without a hearing.
        [(10)] (11) A court may not expunge a conviction of a:
        (a) capital felony;
        (b) first degree felony;
        (c) second degree forcible felony; or
        (d) any sexual act against a minor.
        Section 4. Section 77-18-12 is amended to read:
         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 a capital felony, first degree felony,
    second degree forcible felony, [or] a conviction involving a sexual act against a minor, any
    registerable sex offense as defined in Section 77-27-21.5(1)(e), or an attempt, solicitation, or
    conspiracy to commit any offense listed in that subsection;
        (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

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    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 person 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; or
        (g) a proceeding involving a crime is pending or being instituted in any jurisdiction against
    the petitioner.
        (2) A conviction [shall] may not be included for purposes of Subsection (1)(e), and [no] a
    conviction [shall] 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) six years in the case of an alcohol-related traffic offense under Title 41;
        (c) five years in the case of a class A misdemeanor; [or]
        (d) three years in the case of any other misdemeanor or infraction under Title 76; 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)[(b), (c),] (d)[,] or (f) may receive a certificate of eligibility for [an] one additional
    expungement if at least [20] 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.

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