1     
OFFENDER REGISTRY AMENDMENTS

2     
2016 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Jack R. Draxler

5     
Senate Sponsor: Lyle W. Hillyard

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions of the Sex and Kidnap Offender Registry.
10     Highlighted Provisions:
11          This bill:
12          ▸     adds the class A misdemeanor offenses of enticing a minor and voyeurism to the
13     provisions allowing an offender to apply for removal from the registry five years
14     after the offender completes the sentence and meets specified requirements; and
15          ▸     provides that if an offender's petition to reduce the offender's time on the registry is
16     denied, the offender may not petition again for three years.
17     Money Appropriated in this Bill:
18          None
19     Other Special Clauses:
20          None
21     Utah Code Sections Affected:
22     AMENDS:
23          77-40-105, as last amended by Laws of Utah 2014, Chapter 199
24          77-41-105, as last amended by Laws of Utah 2015, Chapter 210
25          77-41-112, as last amended by Laws of Utah 2013, Chapter 122
26     

27     Be it enacted by the Legislature of the state of Utah:
28          Section 1. Section 77-40-105 is amended to read:
29          77-40-105. Eligibility for expungement of conviction -- Requirements.
30          (1) A person convicted of an offense may apply to the bureau for a certificate of
31     eligibility to expunge the record of conviction as provided in this section.
32          (2) A petitioner is not eligible to receive a certificate of eligibility from the bureau if:
33          (a) the conviction for which expungement is sought is:
34          (i) a capital felony;
35          (ii) a first degree felony;
36          (iii) a violent felony as defined in Subsection 76-3-203.5(1)(c)(i);
37          (iv) felony automobile homicide;
38          (v) a felony violation of Subsection 41-6a-501(2); or
39          (vi) a registerable sex offense as defined in Subsection 77-41-102[(16)](17);
40          (b) a criminal proceeding is pending against the petitioner; or
41          (c) the petitioner intentionally or knowingly provides false or misleading information
42     on the application for a certificate of eligibility.
43          (3) A petitioner seeking to obtain expungement for a record of conviction is not
44     eligible to receive a certificate of eligibility from the bureau until all of the following have
45     occurred:
46          (a) all fines and interest ordered by the court have been paid in full;
47          (b) all restitution ordered by the court pursuant to Section 77-38a-302, or by the Board
48     of Pardons and Parole pursuant to Section 77-27-6, has been paid in full; and
49          (c) the following time periods have elapsed from the date the petitioner was convicted
50     or released from incarceration, parole, or probation, whichever occurred last, for each
51     conviction the petitioner seeks to expunge:
52          (i) 10 years in the case of a misdemeanor conviction of Subsection 41-6a-501(2) or a
53     felony conviction of Subsection 58-37-8(2)(g);
54          (ii) seven years in the case of a felony;
55          (iii) five years in the case of any class A misdemeanor or a felony drug possession
56     offense;
57          (iv) four years in the case of a class B misdemeanor; or
58          (v) three years in the case of any other misdemeanor or infraction.
59          (4) The bureau may not issue a certificate of eligibility if, at the time the petitioner
60     seeks a certificate of eligibility, the bureau determines that the petitioner's criminal history,
61     including previously expunged convictions, contains any of the following:
62          (a) two or more felony convictions other than for drug possession offenses, each of
63     which is contained in a separate criminal episode;
64          (b) any combination of three or more convictions other than for drug possession
65     offenses that include two class A misdemeanor convictions, each of which is contained in a
66     separate criminal episode;
67          (c) any combination of four or more convictions other than for drug possession
68     offenses that include three class B misdemeanor convictions, each of which is contained in a
69     separate criminal episode; or
70          (d) five or more convictions other than for drug possession offenses of any degree
71     whether misdemeanor or felony, excluding infractions and any traffic offenses, each of which
72     is contained in a separate criminal episode.
73          (5) The bureau may not issue a certificate of eligibility if, at the time the petitioner
74     seeks a certificate of eligibility, the bureau determines that the petitioner's criminal history,
75     including previously expunged convictions, contains any of the following:
76          (a) three or more felony convictions for drug possession offenses, each of which is
77     contained in a separate criminal episode; or
78          (b) any combination of five or more convictions for drug possession offenses, each of
79     which is contained in a separate criminal episode.
80          (6) If the petitioner's criminal history contains convictions for both a drug possession
81     offense and a non drug possession offense arising from the same criminal episode, that criminal
82     episode shall be counted as provided in Subsection (4) if any non drug possession offense in
83     that episode:
84          (a) is a felony or class A misdemeanor; or
85          (b) has the same or a longer waiting period under Subsection (3) than any drug
86     possession offense in that episode.
87          (7) If, prior to May 14, 2013, the petitioner has received a pardon from the Utah Board
88     of Pardons and Parole, the petitioner is entitled to an expungement order for all pardoned
89     crimes pursuant to Section 77-27-5.1.
90          Section 2. Section 77-41-105 is amended to read:
91          77-41-105. Registration of offenders -- Offender responsibilities.
92          (1) An offender convicted by any other jurisdiction is required to register under
93     Subsection (3) and Subsection 77-41-102(9) or (17). The offender shall register with the
94     department within 10 days of entering the state, regardless of the offender's length of stay.
95          (2) (a) An offender required to register under Subsection 77-41-102(9) or (17) who is
96     under supervision by the department shall register in person with Division of Adult Probation
97     and Parole.
98          (b) An offender required to register under Subsection 77-41-102(9) or (17) who is no
99     longer under supervision by the department shall register in person with the police department
100     or sheriff's office that has jurisdiction over the area where the offender resides.
101          (3) (a) Except as provided in Subsections (3)(b), (c), and (4), and Section 77-41-106,
102     an offender shall, for the duration of the sentence and for 10 years after termination of sentence
103     or custody of the division, register every year during the month of the offender's date of birth,
104     during the month that is the sixth month after the offender's birth month, and also within three
105     business days of every change of the offender's primary residence, any secondary residences,
106     place of employment, vehicle information, or educational information required to be submitted
107     under Subsection (8).
108          (b) Except as provided in Subsections (4) and (5), and Section 77-41-106, an offender
109     who is convicted in another jurisdiction of an offense listed in Subsection 77-41-102(9)(a) or
110     (17)(a), a substantially similar offense, or any other offense that requires registration in the
111     jurisdiction of conviction, shall:
112          (i) register for the time period, and in the frequency, required by the jurisdiction where
113     the offender was convicted if that jurisdiction's registration period or registration frequency
114     requirement for the offense that the offender was convicted of is greater than the 10 years from
115     completion of the sentence registration period that is required under Subsection (3)(a), or is
116     more frequent than every six months; or
117          (ii) register in accordance with the requirements of Subsection (3)(a), if the
118     jurisdiction's registration period or frequency requirement for the offense that the offender was
119     convicted of is less than the registration period required under Subsection (3)(a), or is less
120     frequent than every six months.
121          (c) (i) An offender convicted as an adult of any of the offenses listed in Section
122     77-41-106 shall, for the offender's lifetime, register every year during the month of the
123     offender's birth, during the month that is the sixth month after the offender's birth month, and
124     also within three business days of every change of the offender's primary residence, any
125     secondary residences, place of employment, vehicle information, or educational information
126     required to be submitted under Subsection (8).
127          (ii) This registration requirement is not subject to exemptions and may not be
128     terminated or altered during the offender's lifetime, unless a petition is granted under Section
129     77-41-112.
130          (d) For the purpose of establishing venue for a violation of this Subsection (3), the
131     violation is considered to be committed:
132          (i) at the most recent registered primary residence of the offender or at the location of
133     the offender, if the actual location of the offender at the time of the violation is not known; or
134          (ii) at the location of the offender at the time the offender is apprehended.
135          (4) Notwithstanding Subsection (3) and Section 77-41-106, an offender who is
136     confined in a secure facility or in a state mental hospital is not required to register during the
137     period of confinement.
138          (5) In the case of an offender adjudicated in another jurisdiction as a juvenile and
139     required to register under this chapter, the offender shall register in the time period and in the
140     frequency consistent with the requirements of this Subsection (5). However, if the jurisdiction
141     of the offender's adjudication does not publish the offender's information on a public website,
142     the department shall maintain, but not publish the offender's information on the Sex Offender
143     and Kidnap Offender Registration website.
144          (6) An offender who is required to register under Subsection (3) shall surrender the
145     offender's license, certificate, or identification card as required under Subsection 53-3-216(3)
146     or 53-3-807(4) and may apply for a license certificate or identification card as provided under
147     Section 53-3-205 or 53-3-804.
148          (7) A sex offender who violates Section 77-27-21.8 regarding being in the presence of
149     a child while required to register under this chapter shall register for an additional five years
150     subsequent to the registration period otherwise required under this chapter.
151          (8) An offender shall provide the department or the registering entity with the
152     following information:
153          (a) all names and aliases by which the offender is or has been known;
154          (b) the addresses of the offender's primary and secondary residences;
155          (c) a physical description, including the offender's date of birth, height, weight, eye and
156     hair color;
157          (d) the make, model, color, year, plate number, and vehicle identification number of
158     any vehicle or vehicles the offender owns or regularly drives;
159          (e) a current photograph of the offender;
160          (f) a set of fingerprints, if one has not already been provided;
161          (g) a DNA specimen, taken in accordance with Section 53-10-404, if one has not
162     already been provided;
163          (h) telephone numbers and any other designations used by the offender for routing or
164     self-identification in telephonic communications from fixed locations or cellular telephones;
165          (i) Internet identifiers and the addresses the offender uses for routing or
166     self-identification in Internet communications or postings;
167          (j) the name and Internet address of all websites on which the offender is registered
168     using an online identifier, including all online identifiers used to access those websites;
169          (k) a copy of the offender's passport, if a passport has been issued to the offender;
170          (l) if the offender is an alien, all documents establishing the offender's immigration
171     status;
172          (m) all professional licenses that authorize the offender to engage in an occupation or
173     carry out a trade or business, including any identifiers, such as numbers;
174          (n) each educational institution in Utah at which the offender is employed, carries on a
175     vocation, or is a student, and any change of enrollment or employment status of the offender at
176     any educational institution;
177          (o) the name, the telephone number, and the address of any place where the offender is
178     employed or will be employed;
179          (p) the name, the telephone number, and the address of any place where the offender
180     works as a volunteer or will work as a volunteer; and
181          (q) the offender's social security number.
182          (9) Notwithstanding Section 42-1-1, an offender:
183          (a) may not change the offender's name:
184          (i) while under the jurisdiction of the department; and
185          (ii) until the registration requirements of this statute have expired; and
186          (b) may not change the offender's name at any time, if registration is for life under
187     Subsection 77-41-105(3)(c).
188          (10) Notwithstanding Subsections (8)(i) and (j) and 77-41-103(1)(c), an offender is not
189     required to provide the department with:
190          (a) the offender's online identifier and password used exclusively for the offender's
191     employment on equipment provided by an employer and used to access the employer's private
192     network; or
193          (b) online identifiers for the offender's financial accounts, including any bank,
194     retirement, or investment accounts.
195          Section 3. Section 77-41-112 is amended to read:
196          77-41-112. Removal from registry -- Requirements -- Procedure.
197          (1) An offender may petition the court where the offender was convicted of the offense
198     requiring registration for an order removing the offender from the Sex Offender and Kidnap
199     Offender Registry if:
200          (a) the offender was convicted of [violating:] an offense under Subsection (2);
201          (b) at least five years have passed since the completion of the offender's sentence for
202     the offense;
203          (c) the offense is the only conviction for which the offender is required to register; and
204          (d) the offender has not been convicted, subsequently to the offense for which the
205     offender was placed on the registry, of a violation listed in:
206          (i) Subsection 77-41-102(9), which defines a kidnap offender; or
207          (ii) Subsection 77-41-102(17), which defines a sex offender.
208          (2) The offenses referred to in Subsection (1)(a) are:
209          (a) Section 76-4-401, Enticing a minor, if the offense is a class A misdemeanor;
210          [(i)] (b) Section 76-5-301, Kidnapping, and the conviction of violating Section
211     76-5-301 [is the only conviction for which the offender is required to register];
212          [(ii)] (c) Section 76-5-304, Unlawful detention, and the conviction of violating Section
213     76-5-304 is the only conviction for which the offender is required to register;
214          [(iii)] (d) Section 76-5-401, Unlawful sexual activity with a minor and, at the time of
215     the offense, was not more than 10 years older than the victim; [or]
216          [(iv)] (e) Section 76-5-401.2, Unlawful sexual conduct with a 16 or 17 year old, and at
217     the time of the offense, was not more than 15 years older than the victim; or
218          (f) Section 76-9-702.7, Voyeurism, if the offense is a class A misdemeanor.
219          [(b) five years have passed since the completion of the offender's sentence;]
220          (3) An offender who meets the requirements under Subsection (1) shall also complete
221     all of the following requirements:
222          [(c)] (a) the offender has successfully completed all treatment ordered by the court or
223     the Board of Pardons and Parole relating to the conviction;
224          [(d)] (b) (i) the offender has not been convicted of any other crime, excluding traffic
225     offenses, as evidenced by a certificate of eligibility issued by the bureau; and
226          (ii) as used in this section, "traffic offense" does not include a violation of Title 41,
227     Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving;
228          [(e)] (c) the offender has paid all restitution ordered by the court;
229          [(f)] (d) the offender has complied with all the registration requirements at all times as
230     required in this chapter, as evidenced by a document obtained by the offender from the Utah
231     Department of Corrections, which confirms compliance; and
232          [(g)] (e) the office that prosecuted the offender, and the victim, or if the victim is still a
233     minor, the victim's parent, are notified and provided with an opportunity to respond in
234     accordance with Subsection [(3)] (6)(a).
235          [(2)] (4) (a) (i) An offender seeking removal from the Sex Offender or Kidnap
236     Offender Registry shall apply for a certificate of eligibility from the bureau.
237          (ii) An offender who intentionally or knowingly provides any false or misleading
238     information to the bureau when applying for a certificate of eligibility is guilty of a class B
239     misdemeanor and subject to prosecution under Section 76-8-504.6.
240          (iii) Regardless of whether the offender is prosecuted, the bureau may deny a certificate
241     of eligibility to anyone providing false information on an application.
242          (b) (i) The bureau shall perform a check of records of governmental agencies,
243     including national criminal databases, to determine whether an offender is eligible to receive a
244     certificate of eligibility under this section.
245          (ii) If the offender meets all of the criteria under Subsections [(1)(b) and (d)] (1), (2),
246     and (3), the bureau shall issue a certificate of eligibility to the offender, which shall be valid for
247     a period of 90 days from the date the certificate is issued.
248          [(c)] (5) (a) (i) The bureau shall charge application and issuance fees for a certificate of
249     eligibility in accordance with the process in Section 63J-1-504.
250          (ii) The application fee shall be paid at the time the offender submits an application for
251     a certificate of eligibility to the bureau.
252          (iii) If the bureau determines that the issuance of a certificate of eligibility is
253     appropriate, the offender will be charged an additional fee for the issuance of a certificate of
254     eligibility.
255          [(d)] (b) Funds generated under [this] Subsection [(2)] (5) shall be deposited in the
256     General Fund as a dedicated credit by the department to cover the costs incurred in determining
257     eligibility.
258          [(3)] (6) (a) The offender shall file the petition, original information, and court docket
259     with the court, and deliver a copy of the petition to the office of the prosecutor.
260          (i) Upon receipt of a petition for removal from the Sex Offender and Kidnap Offender
261     Registry, the office of the prosecutor shall provide notice of the petition:
262          (A) by first-class mail to the victim at the most recent address of record on file or, if
263     the victim is still a minor, to the parent or guardian of the victim[.]; and
264          (B) to the Sex and Kidnap Offender Registry office in the Department of Corrections.
265          (ii) The notice shall include a copy of the petition, state that the victim has a right to
266     object to the removal of the offender from the registry, and provide instructions for registering
267     an objection with the court.
268          (b) The office of the prosecutor shall provide the following, if available, to the court
269     within 30 days after receiving the petition:
270          (i) presentencing report;
271          (ii) any evaluation done as part of sentencing; and
272          (iii) any other information the office of the prosecutor feels the court should consider.
273          (c) The victim, or the victim's parent or guardian if the victim is a minor, may respond
274     to the petition by filing a recommendation or objection with the court within 45 days after the
275     mailing of the petition to the victim.
276          [(4)] (7) (a) The court shall:
277          (i) review the petition and all documents submitted with the petition; and
278          (ii) hold a hearing if requested by the prosecutor or the victim.
279          (b) The court shall consider whether the offender has paid all restitution ordered by the
280     court or the Board of Pardons.
281          (c) If the court determines that it is not contrary to the interests of the public to do so, it
282     may grant the petition and order removal of the offender from the registry.
283          (d) If the court grants the petition, it shall forward a copy of the order directing removal
284     of the offender from the registry to the department and the office of the prosecutor.
285          (e) If the court denies the petition, the offender may not submit another petition for
286     three years.
287          [(5)] (8) The office of the prosecutor shall notify the victim and the Sex and Kidnap
288     Offender Registry office in the Department of Corrections of the court's decision in the same
289     manner as notification was provided in Subsection [(3)] (6)(a).