H.B. 33

1

EXPUNGEMENT PROCESS AMENDMENTS
2 2013 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Eric K. Hutchings
5 Senate Sponsor: Howard A. Stephenson
6
7 LONG TITLE
8 Committee Note:
9 The Judiciary Interim Committee recommended this bill.
10 General Description:
11 This bill provides a process by which drug-related offenses may be expunged.
12 Highlighted Provisions:
13 This bill:
14 . creates a process to expunge drug-related offenses by adding another felony and
15 misdemeanor offense to the list of those that can be expunged;
16 . requires the petitioner to be free of illegal substance abuse and successfully
17 managing any substance addiction;
18 . clarifies the difference between a pardon and expungement; and
19 . makes technical corrections.
20 Money Appropriated in this Bill:
21 None
22 Other Special Clauses:
23 None
24 Utah Code Sections Affected:
25 AMENDS:
26 77-27-1, as last amended by Laws of Utah 2010, Chapter 110
27 77-40-102, as last amended by Laws of Utah 2012, Chapter 136

28 77-40-103, as enacted by Laws of Utah 2010, Chapter 283
29 77-40-105, as last amended by Laws of Utah 2012, Chapters 136 and 145
30 77-40-106, as enacted by Laws of Utah 2010, Chapter 283
31 77-40-107, as enacted by Laws of Utah 2010, Chapter 283
32 77-40-108, as renumbered and amended by Laws of Utah 2010, Chapter 283
33 77-40-109, as renumbered and amended by Laws of Utah 2010, Chapter 283
34 77-40-110, as enacted by Laws of Utah 2010, Chapter 283
35 ENACTS:
36 77-27-5.1, Utah Code Annotated 1953
37
38 Be it enacted by the Legislature of the state of Utah:
39 Section 1. Section 77-27-1 is amended to read:
40 77-27-1. Definitions.
41 As used in this chapter:
42 (1) "Appearance" means any opportunity to address the board, a board member, a
43 panel, or hearing officer, including an interview.
44 (2) "Board" means the Board of Pardons and Parole.
45 (3) "Commission" means the Commission on Criminal and Juvenile Justice.
46 (4) "Commutation" is the change from a greater to a lesser punishment after
47 conviction.
48 (5) "Department" means the Department of Corrections.
49 (6) "Expiration" occurs when the maximum sentence has run.
50 (7) "Family" means persons related to the victim as a spouse, child, sibling, parent, or
51 grandparent, or the victim's legal guardian.
52 (8) "Hearing" means an appearance before the board, a panel, a board member or
53 hearing examiner, at which an offender or inmate is afforded an opportunity to be present and
54 address the board, and encompasses the term "full hearing."
55 (9) "Location," in reference to a hearing, means the physical location at which the
56 board, a panel, a board member, or a hearing examiner is conducting the hearing, regardless of
57 the location of any person participating by electronic means.
58 (10) "Open session" means any hearing before the board, a panel, a board member, or a

59 hearing examiner which is open to the public, regardless of the location of any person
60 participating by electronic means.
61 (11) "Panel" means members of the board assigned by the chairperson to a particular
62 case.
63 (12) "Pardon" is an act of grace [by an appropriate authority exempting a person from]
64 that forgives a criminal conviction and restores the rights and privileges forfeited by or because
65 of the criminal conviction. A pardon releases an offender from the entire punishment
66 prescribed for a criminal offense and from disabilities that are a consequence of the criminal
67 conviction. A pardon reinstates any civil rights lost as a consequence of conviction or
68 punishment for a [crime] criminal offense.
69 (13) "Parole" is a release from imprisonment on prescribed conditions which, if
70 satisfactorily performed by the parolee, enables the parolee to obtain a termination of his
71 sentence.
72 (14) "Probation" is an act of grace by the court suspending the imposition or execution
73 of a convicted offender's sentence upon prescribed conditions.
74 (15) "Reprieve or respite" is the temporary suspension of the execution of the sentence.
75 (16) "Termination" is the act of [an appropriate authority] discharging from parole or
76 concluding the sentence of imprisonment prior to the expiration of the sentence.
77 (17) "Victim" means:
78 (a) a person against whom the defendant committed a felony or class A misdemeanor
79 offense, and regarding which offense a hearing is held under this chapter; or
80 (b) the victim's family, if the victim is deceased as a result of the offense for which a
81 hearing is held under this chapter.
82 Section 2. Section 77-27-5.1 is enacted to read:
83 77-27-5.1. Board authority to order expungement.
84 (1) Upon granting a pardon for one or more convictions, the board shall issue an
85 expungement order, directing any criminal justice agency to remove the recipient's identifying
86 information relating to the expunged convictions from its records.
87 (2) An expungement order, issued by the board, has the same legal effect and authority
88 as an order of expungement issued by a court, pursuant to Title 77, Chapter 40, Utah
89 Expungement Act.

90 (3) The board shall provide clear written directions to the recipient along with a list of
91 agencies known to be affected by the expungement order.
92 Section 3. Section 77-40-102 is amended to read:
93 77-40-102. Definitions.
94 As used in this chapter:
95 (1) "Administrative finding" means a decision upon a question of fact reached by an
96 administrative agency following an administrative hearing or other procedure satisfying the
97 requirements of due process.
98 (2) "Agency" means a state, county, or local government entity that generates or
99 maintains records relating to an investigation, arrest, detention, or conviction for an offense for
100 which expungement may be ordered.
101 (3) "Bureau" means the Bureau of Criminal Identification of the Department of Public
102 Safety established in Section 53-10-201 .
103 (4) "Certificate of eligibility" means a document issued by the bureau stating that the
104 criminal record which is the subject of a petition for expungement is eligible for expungement.
105 (5) "Conviction" means judgment by a criminal court on a verdict or finding of guilty
106 after trial, a plea of guilty, or a plea of nolo contendere.
107 (6) "Department" means the Department of Public Safety established in Section
108 53-1-103 .
109 (7) "Drug possession offense" means an offense under:
110 (a) Subsection 58-37-8 (2), except any offense under Subsection 58-37-8 (2)(b)(i)
111 possession of 100 pounds or more of marijuana, any offense enhanced under Subsection
112 58-37-8 (2)(e) for violation in a correctional facility or Subsection 58-37-8 (2)(g), driving with a
113 controlled substance illegally in the person's body and negligently causing serious bodily injury
114 or death of another;
115 (b) Subsection 58-37a-5 (1), use or possession of drug paraphernalia;
116 (c) Section 58-37b-6 , possession or use of an imitation controlled substance; or
117 (d) any local ordinance which is substantially similar to any of the offenses described
118 in this Subsection (7).
119 [(7)] (8) "Expunge" means to seal or otherwise restrict access to the petitioner's record
120 of arrest, investigation, detention, or conviction held by an agency.

121 [(8)] (9) "Jurisdiction" means a state, district, province, political subdivision, territory,
122 or possession of the United States or any foreign country.
123 [(9)] (10) "Petitioner" means a person seeking expungement under this chapter.
124 [(10)] (11) "Traffic offense" means all offenses in the following parts and all local
125 ordinances that are substantially similar to the offenses:
126 (a) Title 41, Chapter 6a, Part 3, Traffic-control Devices;
127 (b) Title 41, Chapter 6a, Part 6, Speed Restrictions;
128 (c) Title 41, Chapter 6a, Part 7, Driving on Right Side of Highway and Passing;
129 (d) Title 41, Chapter 6a, Part 8, Turning and Signaling for Turns;
130 (e) Title 41, Chapter 6a, Part 9, Right-of-Way;
131 (f) Title 41, Chapter 6a, Part 10, Pedestrians' Rights and Duties;
132 (g) Title 41, Chapter 6a, Part 11, Bicycles, Regulation of Operation;
133 (h) Title 41, Chapter 6a, Part 12, Railroad Trains, Railroad Grade Crossings, and
134 Safety Zones;
135 (i) Title 41, Chapter 6a, Part 13, School Buses and School Bus Parking Zones;
136 (j) Title 41, Chapter 6a, Part 14, Stopping, Standing, and Parking;
137 (k) Title 41, Chapter 6a, Part 15, Special Vehicles;
138 (l) Title 41, Chapter 6a, Part 16, Vehicle Equipment;
139 (m) Title 41, Chapter 6a, Part 17, Miscellaneous Rules; and
140 (n) Title 41, Chapter 6a, Part 18, Motor Vehicle Safety Belt Usage Act.
141 Section 4. Section 77-40-103 is amended to read:
142 77-40-103. Expungement procedure overview.
143 The process for the expungement of records under this chapter regarding the arrest,
144 investigation, detention, and conviction of a petitioner [in this state] is as follows:
145 (1) The petitioner shall apply to the bureau for a certificate of eligibility for
146 expungement and pay the application fee established by the department.
147 (2) Once the eligibility process is complete, the bureau shall notify the petitioner.
148 (3) If the petitioner is qualified to receive a certificate of eligibility for expungement,
149 the petitioner shall pay the issuance fee established by the department.
150 (4) The petitioner shall file the certificate of eligibility with a petition for expungement
151 in the court in which the proceedings occurred. If there were no court proceedings, or the court

152 no longer exists, the petition may be filed in the district court where the arrest occurred.
153 (5) The petitioner shall deliver a copy of the petition and certificate to the prosecutorial
154 office that handled the court proceedings. If there were no court proceedings, the copy of the
155 petition and certificate shall be delivered to the county attorney's office in the jurisdiction
156 where the arrest occurred.
157 (6) If an objection to the petition is filed by the prosecutor or victim, a hearing shall be
158 set by the court and the prosecutor and victim notified of the date.
159 (7) If the court requests a response from Adult Probation and Parole and a response is
160 received, the petitioner may file a written reply to the response within 15 days of receipt of the
161 response.
162 (8) An expungement may be granted without a hearing if no objection is received.
163 (9) Upon receipt of an order of expungement, the petitioner shall deliver copies to all
164 government agencies in possession of records relating to the expunged matter.
165 Section 5. Section 77-40-105 is amended to read:
166 77-40-105. Eligibility for expungement of conviction -- Requirements.
167 (1) A person convicted of an offense may apply to the bureau for a certificate of
168 eligibility to expunge the record of conviction as provided in this section.
169 (2) A petitioner is not eligible to receive a certificate of eligibility from the bureau if:
170 (a) the conviction for which expungement is sought is:
171 (i) a capital felony;
172 (ii) a first degree felony;
173 (iii) a violent felony as defined in Subsection 76-3-203.5 (1)(c)(i);
174 (iv) automobile homicide;
175 (v) a felony violation of Subsection 41-6a-501 (2); or
176 (vi) a registerable sex offense as defined in Subsection 77-41-102 (16);
177 (b) a criminal proceeding is pending against the petitioner; or
178 (c) the petitioner intentionally or knowingly provides false or misleading information
179 on the application for a certificate of eligibility.
180 (3) A petitioner seeking to obtain expungement for a record of conviction is not
181 eligible to receive a certificate of eligibility from the bureau until all of the following have
182 occurred:

183 (a) all fines and interest ordered by the court have been paid in full;
184 (b) all restitution ordered by the court pursuant to Section 77-38a-302 , or by the Board
185 of Pardons and Parole pursuant to Section 77-27-6 , has been paid in full; and
186 (c) the following time periods have elapsed from the date the petitioner was convicted
187 or released from incarceration, parole, or probation, whichever occurred last, for each
188 conviction the petitioner seeks to expunge:
189 (i) 10 years in the case of a misdemeanor conviction of Subsection 41-6a-501 (2) or a
190 felony conviction of Subsection 58-37-8 (2)(g);
191 (ii) seven years in the case of a felony;
192 (iii) five years in the case of [a] any class A misdemeanor or a felony drug possession
193 offense;
194 (iv) four years in the case of a class B misdemeanor; or
195 (v) three years in the case of any other misdemeanor or infraction.
196 (4) The bureau may not issue a certificate of eligibility if, at the time the petitioner
197 seeks a certificate of eligibility, the bureau determines that the petitioner's criminal history,
198 including previously expunged convictions, contains any of the following:
199 (a) two or more felony convictions other than for drug possession offenses, each of
200 which is contained in a separate criminal episode;
201 (b) any combination of three or more convictions other than for drug possession
202 offenses that include two class A misdemeanor convictions, each of which is contained in a
203 separate criminal episode;
204 (c) any combination of four or more convictions other than for drug possession
205 offenses that include three class B misdemeanor convictions, each of which is contained in a
206 separate criminal episode; or
207 (d) five or more convictions other than for drug possession offenses of any degree
208 whether misdemeanor or felony, excluding infractions and any traffic offenses, each of which
209 is contained in a separate criminal episode.
210 (5) The bureau may not issue a certificate of eligibility if, at the time the petitioner
211 seeks a certificate of eligibility, the bureau determines that the petitioner's criminal history,
212 including previously expunged convictions, contains any of the following:
213 (a) three or more felony convictions for drug possession offenses, each of which is

214 contained in a separate criminal episode; or
215 (b) any combination of five or more convictions for drug possession offenses, each of
216 which is contained in a separate criminal episode.
217 (6) If the petitioner's criminal history contains convictions for both a drug possession
218 offense and a non drug possession offense arising from the same criminal episode, that criminal
219 episode shall be counted as provided in Subsection (4) if any non drug possession offense in
220 that episode:
221 (a) is a felony or class A misdemeanor; or
222 (b) has the same or a longer waiting period under Subsection (3) than any drug
223 possession offense in that episode.
224 [(5)] (7) If, prior to May 14, 2013, the petitioner has received a pardon from the Utah
225 Board of Pardons and Parole, the petitioner is entitled to a certificate of eligibility for all
226 pardoned crimes.
227 Section 6. Section 77-40-106 is amended to read:
228 77-40-106. Application for certificate of eligibility -- Fees.
229 (1) (a) A petitioner seeking to obtain an expungement for a criminal record [shall] may
230 apply for a certificate of eligibility from the bureau.
231 (b) A petitioner who intentionally or knowingly provides any false or misleading
232 information to the bureau when applying for a certificate of eligibility is guilty of a class B
233 misdemeanor and subject to prosecution under Section 76-8-504.6 .
234 (c) Regardless of whether the petitioner is prosecuted, the bureau may deny a
235 certificate of eligibility to anyone providing false information on an application.
236 (2) (a) The bureau shall perform a check of records of governmental agencies,
237 including national criminal data bases, to determine whether a petitioner is eligible to receive a
238 certificate of eligibility under this chapter.
239 (b) For purposes of determining eligibility under this chapter, the bureau may review
240 records of arrest, investigation, detention and conviction that have been previously expunged,
241 regardless of the jurisdiction in which the expungement occurred.
242 (c) If the petitioner meets all of the criteria under Section 77-40-104 or 77-40-105 , the
243 bureau shall issue a certificate of eligibility to the petitioner which shall be valid for a period of
244 90 days from the date the certificate is issued.

245 (d) If, after reasonable research, a disposition for an arrest on the criminal history file is
246 unobtainable, the bureau may issue a special certificate giving determination of eligibility to
247 the court.
248 (3) (a) The bureau shall charge application and issuance fees for a certificate of
249 eligibility or special certificate in accordance with the process in Section 63J-1-504 .
250 (b) The application fee shall be paid at the time the petitioner submits an application
251 for a certificate of eligibility to the bureau.
252 (c) If the bureau determines that the issuance of a certificate of eligibility or special
253 certificate is appropriate, the petitioner will be charged an additional fee for the issuance of a
254 certificate of eligibility or special certificate unless Subsection (3)(d) applies.
255 (d) An issuance fee may not be assessed against a petitioner who qualifies for a
256 certificate of eligibility under Section 77-40-104 unless the charges were dismissed pursuant to
257 a plea in abeyance agreement under Title 77, Chapter 2a, Pleas in Abeyance, or a diversion
258 agreement under Title 77, Chapter 2, Prosecution, Screening, and Diversion.
259 (e) Funds generated under this Subsection (3) shall be deposited in the General Fund as
260 a dedicated credit by the department to cover the costs incurred in determining eligibility.
261 (4) The bureau shall provide clear written directions to the petitioner along with a list
262 of agencies known to be affected by an order of expungement.
263 Section 7. Section 77-40-107 is amended to read:
264 77-40-107. Petition for expungement -- Prosecutorial responsibility -- Hearing --
265 Standard of proof -- Exception.
266 (1) The petitioner shall file a petition for expungement and the certificate of eligibility
267 in the court specified in Section 77-40-103 and deliver a copy of the petition and certificate to
268 the prosecuting agency.
269 (2) (a) Upon receipt of a petition for expungement of a conviction, the prosecuting
270 attorney shall provide notice of the expungement request by first-class mail to the victim at the
271 most recent address of record on file.
272 (b) The notice shall include a copy of the petition, certificate of eligibility, statutes and
273 rules applicable to the petition, state that the victim has a right to object to the expungement,
274 and provide instructions for registering an objection with the court.
275 (3) The prosecuting attorney and the victim, if applicable, may respond to the petition

276 by filing a recommendation or objection with the court within 30 days after receipt of the
277 petition.
278 (4) (a) The court may request a written response to the petition from the Division of
279 Adult Probation and Parole within the Department of Corrections.
280 (b) If requested, the response prepared by Adult Probation and Parole shall include:
281 (i) the reasons probation was terminated; and
282 (ii) certification that the petitioner has completed all requirements of sentencing and
283 probation or parole.
284 (c) A copy of the response shall be provided to the petitioner and the prosecuting
285 attorney.
286 (5) The petitioner may respond in writing to any objections filed by the prosecutor or
287 the victim and the response prepared by Adult Probation and Parole within 15 days after
288 receipt.
289 (6) (a) If the court receives an objection concerning the petition from any party, the
290 court shall set a date for a hearing and notify the petitioner, the prosecuting attorney, and the
291 victim of the date set for the hearing.
292 (b) The petitioner, the prosecuting attorney, the victim, and any other person who has
293 relevant information about the petitioner may testify at the hearing.
294 (c) The court shall review the petition, the certificate of eligibility, and any written
295 responses submitted regarding the petition.
296 (7) If no objection is received within 60 days from the date the petition for
297 expungement was filed with the court, the expungement may be granted without a hearing.
298 (8) The court shall issue an order of expungement if it finds by clear and convincing
299 evidence that:
300 (a) the petition and certificate of eligibility are sufficient;
301 (b) the statutory requirements have been met; [and]
302 (c) if the petitioner seeks expungement of drug possession offenses allowed under
303 Subsection 77-40-105 (5), the petitioner is not illegally using controlled substances and is
304 successfully managing any substance addiction; and
305 [(c)] (d) it is not contrary to the interests of the public to grant the expungement.
306 (9) A court may not expunge a conviction of an offense for which a certificate of

307 eligibility may not be or should not have been issued under Section 77-40-104 or 77-40-105 .
308 Section 8. Section 77-40-108 is amended to read:
309 77-40-108. Distribution of order -- Redaction -- Receipt of order --
310 Administrative proceedings -- Bureau requirements.
311 (1) [The petitioner] A person who receives an order of expungement under this chapter
312 or Section 77-27-5.1 shall be responsible for delivering a copy of the order of expungement to
313 all affected criminal justice agencies and officials including the court, arresting agency,
314 booking agency, prosecuting agency, Department of Corrections, and the bureau.
315 (2) Unless otherwise provided by law or ordered by a court of competent jurisdiction to
316 respond differently, a person who has received an expungement of an arrest or conviction
317 under this chapter or Section 77-27-5.1 , may respond to any inquiry as though the arrest or
318 conviction did not occur.
319 (3) The bureau shall forward a copy of the expungement order to the Federal Bureau of
320 Investigation.
321 (4) An agency receiving an expungement order shall expunge the petitioner's
322 identifying information contained in records in its possession relating to the incident for which
323 expungement is ordered.
324 (5) Unless ordered by a court to do so, a government agency or official may not divulge
325 identifying information regarding the petitioner contained in a record of arrest, investigation,
326 detention, or conviction after receiving an expungement order.
327 (6) (a) An order of expungement may not restrict an agency's use or dissemination of
328 records in its ordinary course of business until the agency has received a copy of the order.
329 (b) Any action taken by an agency after issuance of the order but prior to the agency's
330 receipt of a copy of the order may not be invalidated by the order.
331 (7) An order of expungement may not:
332 (a) terminate or invalidate any pending administrative proceedings or actions of which
333 the petitioner had notice according to the records of the administrative body prior to issuance of
334 the expungement order;
335 (b) affect the enforcement of any order or findings issued by an administrative body
336 pursuant to its lawful authority prior to issuance of the expungement order; or
337 (c) remove any evidence relating to the petitioner including records of arrest, which the

338 administrative body has used or may use in these proceedings.
339 [(8) The bureau shall provide clear written directions to the petitioner along with a list
340 of agencies known to be affected by the order of expungement.]
341 Section 9. Section 77-40-109 is amended to read:
342 77-40-109. Retention and release of expunged records -- Agencies.
343 (1) The bureau shall keep, index, and maintain all expunged records of arrests and
344 convictions.
345 (2) Employees of the bureau may not divulge any information contained in its index to
346 any person or agency without a court order unless specifically authorized by statute. The
347 following organizations may receive information contained in expunged records upon specific
348 request:
349 (a) the Board of Pardons and Parole;
350 (b) Peace Officer Standards and Training;
351 (c) federal authorities, unless prohibited by federal law;
352 (d) the Division of Occupational and Professional Licensing; and
353 (e) the State Office of Education.
354 (3) The bureau may also use the information in its index as provided in Section
355 53-5-704 .
356 (4) If, after obtaining an expungement, the petitioner is charged with a felony, the state
357 may petition the court to open the expunged records upon a showing of good cause.
358 (5) (a) For judicial sentencing, a court may order any records expunged under this
359 chapter or Section 77-27-5.1 to be opened and admitted into evidence.
360 (b) The records are confidential and are available for inspection only by the court,
361 parties, counsel for the parties, and any other person who is authorized by the court to inspect
362 them.
363 (c) At the end of the action or proceeding, the court shall order the records expunged
364 again.
365 (d) Any person authorized by this Subsection (5) to view expunged records may not
366 reveal or release any information obtained from the expunged records to anyone outside the
367 court.
368 (6) Records released under this chapter are classified as protected under Section

369 63G-2-305 and are accessible only as provided under Title 63G, Chapter 2, Part 2, Access to
370 Records.
371 Section 10. Section 77-40-110 is amended to read:
372 77-40-110. Use of expunged records -- Individuals -- Use in civil actions.
373 Records expunged under this chapter or Section [ 77-40-104 or 77-40-105 ] 77-27-5.1
374 may be released to or viewed by the following individuals:
375 (1) the petitioner;
376 (2) a law enforcement officer who was involved in the case, for use solely in the
377 officer's defense of a civil action arising out of the officer's involvement with the petitioner in
378 that particular case; and
379 (3) parties to a civil action arising out of the expunged incident, providing the
380 information is kept confidential and utilized only in the action.




Legislative Review Note
as of 11-14-12 12:25 PM

Office of Legislative Research and General Counsel

[Bill Documents]