7 LONG TITLE
8 Committee Note:
9 The Law Enforcement and Criminal Justice Interim Committee recommended this bill.
10 General Description:
11 This bill modifies provisions of the Sex and Kidnap Offender Registry.
12 Highlighted Provisions:
13 This bill:
14 ▸ adds the class A misdemeanor offenses of enticing a minor and voyeurism to the
15 provisions allowing an offender to apply for removal from the registry five years
16 after the offender completes the sentence and meets specified requirements; and
17 ▸ provides that if an offender's petition to reduce the offender's time on the registry is
18 denied, the offender may not petition again for three years.
19 Money Appropriated in this Bill:
21 Other Special Clauses:
23 Utah Code Sections Affected:
25 77-40-105, as last amended by Laws of Utah 2014, Chapter 199
26 77-41-102, as last amended by Laws of Utah 2015, Chapter 210
27 77-41-105, as last amended by Laws of Utah 2015, Chapter 210
28 77-41-112, as last amended by Laws of Utah 2013, Chapter 122
30 Be it enacted by the Legislature of the state of Utah:
31 Section 1. Section 77-40-105 is amended to read:
32 77-40-105. Eligibility for expungement of conviction -- Requirements.
33 (1) A person convicted of an offense may apply to the bureau for a certificate of
34 eligibility to expunge the record of conviction as provided in this section.
35 (2) A petitioner is not eligible to receive a certificate of eligibility from the bureau if:
36 (a) the conviction for which expungement is sought is:
37 (i) a capital felony;
38 (ii) a first degree felony;
39 (iii) a violent felony as defined in Subsection 76-3-203.5(1)(c)(i);
40 (iv) felony automobile homicide;
41 (v) a felony violation of Subsection 41-6a-501(2); or
42 (vi) a registerable sex offense as defined in Subsection 77-41-102[
43 (b) a criminal proceeding is pending against the petitioner; or
44 (c) the petitioner intentionally or knowingly provides false or misleading information
45 on the application for a certificate of eligibility.
46 (3) A petitioner seeking to obtain expungement for a record of conviction is not
47 eligible to receive a certificate of eligibility from the bureau until all of the following have
49 (a) all fines and interest ordered by the court have been paid in full;
50 (b) all restitution ordered by the court pursuant to Section 77-38a-302, or by the Board
51 of Pardons and Parole pursuant to Section 77-27-6, has been paid in full; and
52 (c) the following time periods have elapsed from the date the petitioner was convicted
53 or released from incarceration, parole, or probation, whichever occurred last, for each
54 conviction the petitioner seeks to expunge:
55 (i) 10 years in the case of a misdemeanor conviction of Subsection 41-6a-501(2) or a
56 felony conviction of Subsection 58-37-8(2)(g);
57 (ii) seven years in the case of a felony;
58 (iii) five years in the case of any class A misdemeanor or a felony drug possession
60 (iv) four years in the case of a class B misdemeanor; or
61 (v) three years in the case of any other misdemeanor or infraction.
62 (4) The bureau may not issue a certificate of eligibility if, at the time the petitioner
63 seeks a certificate of eligibility, the bureau determines that the petitioner's criminal history,
64 including previously expunged convictions, contains any of the following:
65 (a) two or more felony convictions other than for drug possession offenses, each of
66 which is contained in a separate criminal episode;
67 (b) any combination of three or more convictions other than for drug possession
68 offenses that include two class A misdemeanor convictions, each of which is contained in a
69 separate criminal episode;
70 (c) any combination of four or more convictions other than for drug possession
71 offenses that include three class B misdemeanor convictions, each of which is contained in a
72 separate criminal episode; or
73 (d) five or more convictions other than for drug possession offenses of any degree
74 whether misdemeanor or felony, excluding infractions and any traffic offenses, each of which
75 is contained in a separate criminal episode.
76 (5) The bureau may not issue a certificate of eligibility if, at the time the petitioner
77 seeks a certificate of eligibility, the bureau determines that the petitioner's criminal history,
78 including previously expunged convictions, contains any of the following:
79 (a) three or more felony convictions for drug possession offenses, each of which is
80 contained in a separate criminal episode; or
81 (b) any combination of five or more convictions for drug possession offenses, each of
82 which is contained in a separate criminal episode.
83 (6) If the petitioner's criminal history contains convictions for both a drug possession
84 offense and a non drug possession offense arising from the same criminal episode, that criminal
85 episode shall be counted as provided in Subsection (4) if any non drug possession offense in
86 that episode:
87 (a) is a felony or class A misdemeanor; or
88 (b) has the same or a longer waiting period under Subsection (3) than any drug
89 possession offense in that episode.
90 (7) If, prior to May 14, 2013, the petitioner has received a pardon from the Utah Board
91 of Pardons and Parole, the petitioner is entitled to an expungement order for all pardoned
92 crimes pursuant to Section 77-27-5.1.
93 Section 2. Section 77-41-102 is amended to read:
94 77-41-102. Definitions.
95 As used in this chapter:
96 (1) "Bureau" means the bureau of Criminal Identification of the Department of Public
97 Safety established in section 53-10-201.
98 (2) "Business day" means a day on which state offices are open for regular business.
99 (3) "Certificate of eligibility" means a document issued by the Bureau of Criminal
100 Identification showing that the offender has met the requirements of Section 77-41-112.
101 (4) "Department" means the Department of Corrections.
102 (5) "Division" means the Division of Juvenile Justice Services.
103 (6) "Employed" or "carries on a vocation" includes employment that is full time or part
104 time, whether financially compensated, volunteered, or for the purpose of government or
105 educational benefit.
106 (7) "Indian Country" means:
107 (a) all land within the limits of any Indian reservation under the jurisdiction of the
108 United States government, regardless of the issuance of any patent, and includes rights-of-way
109 running through the reservation;
110 (b) all dependent Indian communities within the borders of the United States whether
111 within the original or subsequently acquired territory, and whether or not within the limits of a
112 state; and
113 (c) all Indian allotments, including the Indian allotments to which the Indian titles have
114 not been extinguished, including rights-of-way running through the allotments.
115 (8) "Jurisdiction" means any state, Indian Country, United States Territory, or any
116 property under the jurisdiction of the United States military, Canada, the United Kingdom,
117 Australia, or New Zealand.
118 (9) "Kidnap offender" means any person other than a natural parent of the victim who:
119 (a) has been convicted in this state of a violation of:
120 (i) Subsection 76-5-301(1)(c) or (d), kidnapping;
121 (ii) Section 76-5-301.1, child kidnapping;
122 (iii) Section 76-5-302, aggravated kidnapping;
123 (iv) Section 76-5-310, aggravated human trafficking, on or after May 10, 2011; or
124 (v) attempting, soliciting, or conspiring to commit any felony offense listed in
125 Subsections (9)(a)(i) through (iv);
126 (b) has been convicted of any crime, or an attempt, solicitation, or conspiracy to
127 commit a crime in another jurisdiction, including any state, federal, or military court that is
128 substantially equivalent to the offenses listed in Subsection (9)(a) and who is:
129 (i) a Utah resident; or
130 (ii) not a Utah resident, but who, in any 12 month period, is in this state for a total of
131 10 or more days, regardless of whether or not the offender intends to permanently reside in this
133 (c) (i) is required to register as a kidnap offender in any other jurisdiction of original
134 conviction, who is required to register as a kidnap offender by any state, federal, or military
135 court, or who would be required to register as a kidnap offender if residing in the jurisdiction of
136 the conviction regardless of the date of the conviction or any previous registration
137 requirements; and
138 (ii) in any 12 month period, is in this state for a total of 10 or more days, regardless of
139 whether or not the offender intends to permanently reside in this state;
140 (d) is a nonresident regularly employed or working in this state, or who is a student in
141 this state, and was convicted of one or more offenses listed in Subsection (9), or any
142 substantially equivalent offense in another jurisdiction, or as a result of the conviction, is
143 required to register in the person's state of residence;
144 (e) is found not guilty by reason of insanity in this state or in any other jurisdiction of
145 one or more offenses listed in Subsection (9); or
146 (f) is adjudicated delinquent based on one or more offenses listed in Subsection (9)(a)
147 and who has been committed to the division for secure confinement for that offense and
148 remains in the division's custody 30 days prior to the person's 21st birthday.
149 (10) "Natural parent" means a minor's biological or adoptive parent, and includes the
150 minor's noncustodial parent.
151 (11) "Offender" means a kidnap offender as defined in Subsection (9) or a sex offender
152 as defined in Subsection (17).
153 (12) "Online identifier" or "Internet identifier":
154 (a) means any electronic mail, chat, instant messenger, social networking, or similar
155 name used for Internet communication; and
156 (b) does not include date of birth, Social Security number, PIN number, or Internet
158 (13) "Primary residence" means the location where the offender regularly resides, even
159 if the offender intends to move to another location or return to another location at any future
161 (14) "Register" means to comply with the requirements of this chapter and
162 administrative rules of the department made under this chapter.
163 (15) "Registration website" means the Sex and Kidnap Offender Notification and
164 Registration website described in Section 77-41-110 and the information on the website.
165 (16) "Secondary residence" means any real property that the offender owns or has a
166 financial interest in, or any location where, in any 12 month period, the offender stays
167 overnight a total of 10 or more nights when not staying at the offender's primary residence.
168 (17) "Sex offender" means any person:
169 (a) convicted in this state of:
170 (i) a felony or class A misdemeanor violation of Section 76-4-401, enticing a minor;
171 (ii) Section 76-5b-202, sexual exploitation of a vulnerable adult, on or after May 10,
173 (iii) a felony violation of Section 76-5-401, unlawful sexual activity with a minor;
174 (iv) Section 76-5-401.1, sexual abuse of a minor;
175 (v) Section 76-5-401.2, unlawful sexual conduct with a 16 or 17 year old;
176 (vi) Section 76-5-402, rape;
177 (vii) Section 76-5-402.1, rape of a child;
178 (viii) Section 76-5-402.2, object rape;
179 (ix) Section 76-5-402.3, object rape of a child;
180 (x) a felony violation of Section 76-5-403, forcible sodomy;
181 (xi) Section 76-5-403.1, sodomy on a child;
182 (xii) Section 76-5-404, forcible sexual abuse;
183 (xiii) Section 76-5-404.1, sexual abuse of a child or aggravated sexual abuse of a child;
184 (xiv) Section 76-5-405, aggravated sexual assault;
185 (xv) Section 76-5-412, custodial sexual relations, when the person in custody is
186 younger than 18 years of age, if the offense is committed on or after May 10, 2011;
187 (xvi) Section 76-5b-201, sexual exploitation of a minor;
188 (xvii) Section 76-7-102, incest;
189 (xviii) Section 76-9-702, lewdness, if the person has been convicted of the offense four
190 or more times;
191 (xix) Section 76-9-702.1, sexual battery, if the person has been convicted of the
192 offense four or more times;
193 (xx) any combination of convictions of Section 76-9-702, lewdness, and of Section
194 76-9-702.1, sexual battery, that total four or more convictions;
195 (xxi) Section 76-9-702.5, lewdness involving a child;
196 (xxii) a felony or class A misdemeanor violation of Section 76-9-702.7, voyeurism;
197 (xxiii) Section 76-10-1306, aggravated exploitation of prostitution; or
198 (xxiv) attempting, soliciting, or conspiring to commit any felony offense listed in
199 Subsection (17)(a);
200 (b) who has been convicted of any crime, or an attempt, solicitation, or conspiracy to
201 commit a crime in another jurisdiction, including any state, federal, or military court that is
202 substantially equivalent to the offenses listed in Subsection (17)(a) and who is:
203 (i) a Utah resident; or
204 (ii) not a Utah resident, but who, in any 12 month period, is in this state for a total of
205 10 or more days, regardless of whether the offender intends to permanently reside in this state;
206 (c) (i) who is required to register as a sex offender in any other jurisdiction of original
207 conviction, who is required to register as a sex offender by any state, federal, or military court,
208 or who would be required to register as a sex offender if residing in the jurisdiction of the
209 original conviction regardless of the date of the conviction or any previous registration
210 requirements; and
211 (ii) who, in any 12 month period, is in the state for a total of 10 or more days,
212 regardless of whether or not the offender intends to permanently reside in this state;
213 (d) who is a nonresident regularly employed or working in this state or who is a student
214 in this state and was convicted of one or more offenses listed in Subsection (17)(a), or any
215 substantially equivalent offense in any jurisdiction, or as a result of the conviction, is required
216 to register in the person's jurisdiction of residence;
217 (e) who is found not guilty by reason of insanity in this state, or in any other
218 jurisdiction of one or more offenses listed in Subsection (17)(a); or
219 (f) who is adjudicated delinquent based on one or more offenses listed in Subsection
220 (17)(a) and who has been committed to the division for secure confinement for that offense and
221 remains in the division's custody 30 days prior to the person's 21st birthday.
222 (18) "Traffic offense" does not include a violation of Title 41, Chapter 6a, Part 5,
223 Driving Under the Influence and Reckless Driving.
224 (19) "Vehicle" means any motor vehicle, aircraft, or watercraft subject to registration in
225 any jurisdiction.
226 Section 3. Section 77-41-105 is amended to read:
227 77-41-105. Registration of offenders -- Offender responsibilities.
228 (1) An offender convicted by any other jurisdiction is required to register under
229 Subsection (3) and Subsection 77-41-102(9) or (17). The offender shall register with the
230 department within 10 days of entering the state, regardless of the offender's length of stay.
231 (2) (a) An offender required to register under Subsection 77-41-102(9) or (17) who is
232 under supervision by the department shall register in person with Division of Adult Probation
233 and Parole.
234 (b) An offender required to register under Subsection 77-41-102(9) or (17) who is no
235 longer under supervision by the department shall register in person with the police department
236 or sheriff's office that has jurisdiction over the area where the offender resides.
237 (3) (a) Except as provided in Subsections (3)(b), (c), and (4), and Section 77-41-106,
238 an offender shall, for the duration of the sentence and for 10 years after termination of sentence
239 or custody of the division, register every year during the month of the offender's date of birth,
240 during the month that is the sixth month after the offender's birth month, and also within three
241 business days of every change of the offender's primary residence, any secondary residences,
242 place of employment, vehicle information, or educational information required to be submitted
243 under Subsection (8).
244 (b) Except as provided in Subsections (4) and (5), and Section 77-41-106, an offender
245 who is convicted in another jurisdiction of an offense listed in Subsection 77-41-102(9)(a) or
246 (17)(a), a substantially similar offense, or any other offense that requires registration in the
247 jurisdiction of conviction, shall:
248 (i) register for the time period, and in the frequency, required by the jurisdiction where
249 the offender was convicted if that jurisdiction's registration period or registration frequency
250 requirement for the offense that the offender was convicted of or the juvenile is adjudicated of
251 is greater than the 10 years from completion of the sentence registration period that is required
252 under Subsection (3)(a), or is more frequent than every six months; or
253 (ii) register in accordance with the requirements of Subsection (3)(a), if the
254 jurisdiction's registration period or frequency requirement for the offense that the offender was
255 convicted of is less than the registration period required under Subsection (3)(a), or is less
256 frequent than every six months.
257 (c) (i) An offender convicted as an adult of any of the offenses listed in Section
258 77-41-106 shall, for the offender's lifetime, register every year during the month of the
259 offender's birth, during the month that is the sixth month after the offender's birth month, and
260 also within three business days of every change of the offender's primary residence, any
261 secondary residences, place of employment, vehicle information, or educational information
262 required to be submitted under Subsection (8).
263 (ii) This registration requirement is not subject to exemptions and may not be
264 terminated or altered during the offender's lifetime, unless a petition is granted under Section
266 (d) For the purpose of establishing venue for a violation of this Subsection (3), the
267 violation is considered to be committed:
268 (i) at the most recent registered primary residence of the offender or at the location of
269 the offender, if the actual location of the offender at the time of the violation is not known; or
270 (ii) at the location of the offender at the time the offender is apprehended.
271 (4) Notwithstanding Subsection (3) and Section 77-41-106, an offender who is
272 confined in a secure facility or in a state mental hospital is not required to register during the
273 period of confinement.
274 (5) In the case of an offender adjudicated in another jurisdiction as a juvenile and
275 required to register under this chapter, the offender shall register in the time period and in the
276 frequency consistent with the requirements of this Subsection (5). However, if the jurisdiction
277 of the offender's adjudication does not publish the offender's information on a public website,
278 the department shall maintain, but not publish the offender's information on the Sex Offender
279 and Kidnap Offender Registration website.
280 (6) An offender who is required to register under Subsection (3) shall surrender the
281 offender's license, certificate, or identification card as required under Subsection 53-3-216(3)
282 or 53-3-807(4) and may apply for a license certificate or identification card as provided under
283 Section 53-3-205 or 53-3-804.
284 (7) A sex offender who violates Section 77-27-21.8 regarding being in the presence of
285 a child while required to register under this chapter shall register for an additional five years
286 subsequent to the registration period otherwise required under this chapter.
287 (8) An offender shall provide the department or the registering entity with the
288 following information:
289 (a) all names and aliases by which the offender is or has been known;
290 (b) the addresses of the offender's primary and secondary residences;
291 (c) a physical description, including the offender's date of birth, height, weight, eye and
292 hair color;
293 (d) the make, model, color, year, plate number, and vehicle identification number of
294 any vehicle or vehicles the offender owns or regularly drives;
295 (e) a current photograph of the offender;
296 (f) a set of fingerprints, if one has not already been provided;
297 (g) a DNA specimen, taken in accordance with Section 53-10-404, if one has not
298 already been provided;
299 (h) telephone numbers and any other designations used by the offender for routing or
300 self-identification in telephonic communications from fixed locations or cellular telephones;
301 (i) Internet identifiers and the addresses the offender uses for routing or
302 self-identification in Internet communications or postings;
303 (j) the name and Internet address of all websites on which the offender is registered
304 using an online identifier, including all online identifiers used to access those websites;
305 (k) a copy of the offender's passport, if a passport has been issued to the offender;
306 (l) if the offender is an alien, all documents establishing the offender's immigration
308 (m) all professional licenses that authorize the offender to engage in an occupation or
309 carry out a trade or business, including any identifiers, such as numbers;
310 (n) each educational institution in Utah at which the offender is employed, carries on a
311 vocation, or is a student, and any change of enrollment or employment status of the offender at
312 any educational institution;
313 (o) the name, the telephone number, and the address of any place where the offender is
314 employed or will be employed;
315 (p) the name, the telephone number, and the address of any place where the offender
316 works as a volunteer or will work as a volunteer; and
317 (q) the offender's social security number.
318 (9) Notwithstanding Section 42-1-1, an offender:
319 (a) may not change the offender's name:
320 (i) while under the jurisdiction of the department; and
321 (ii) until the registration requirements of this statute have expired; and
322 (b) may not change the offender's name at any time, if registration is for life under
323 Subsection 77-41-105(3)(c).
324 (10) Notwithstanding Subsections (8)(i) and (j) and 77-41-103(1)(c), an offender is not
325 required to provide the department with:
326 (a) the offender's online identifier and password used exclusively for the offender's
327 employment on equipment provided by an employer and used to access the employer's private
328 network; or
329 (b) online identifiers for the offender's financial accounts, including any bank,
330 retirement, or investment accounts.
331 Section 4. Section 77-41-112 is amended to read:
332 77-41-112. Removal from registry -- Requirements -- Procedure.
333 (1) An offender may petition the court where the offender was convicted of the offense
334 requiring registration for an order removing the offender from the Sex Offender and Kidnap
335 Offender Registry if:
336 (a) the offender was convicted of [
337 (b) at least five years have passed since the completion of the offender's sentence for
338 the offense;
339 (c) the offense is the only conviction for which the offender is required to register; and
340 (d) the offender has not been convicted, subsequently to the offense for which the
341 offender was placed on the registry, of a violation listed in:
342 (i) Subsection 77-41-102(9), which defines a kidnap offender; or
343 (ii) Subsection 77-41-102(17), which defines a sex offender.
344 (2) The offenses referred to in Subsection (1)(a) are:
345 (a) Section 76-4-401, Enticing a minor, if the offense is a class A misdemeanor;
347 76-5-301 [
349 76-5-304 is the only conviction for which the offender is required to register;
351 the offense, was not more than 10 years older than the victim; [
353 the time of the offense, was not more than 15 years older than the victim; or
354 (f) Section 76-9-702.7, Voyeurism, if the offense is a class A misdemeanor.
356 (3) An offender who meets the requirements under Subsection (1) shall also complete
357 all of the following requirements:
359 the Board of Pardons and Parole relating to the conviction;
361 offenses, as evidenced by a certificate of eligibility issued by the bureau; and
362 (ii) as used in this section, "traffic offense" does not include a violation of Title 41,
363 Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving;
366 required in this chapter, as evidenced by a document obtained by the offender from the Utah
367 Department of Corrections, which confirms compliance; and
369 minor, the victim's parent, are notified and provided with an opportunity to respond in
370 accordance with Subsection [
372 Offender Registry shall apply for a certificate of eligibility from the bureau.
373 (ii) An offender who intentionally or knowingly provides any false or misleading
374 information to the bureau when applying for a certificate of eligibility is guilty of a class B
375 misdemeanor and subject to prosecution under Section 76-8-504.6.
376 (iii) Regardless of whether the offender is prosecuted, the bureau may deny a certificate
377 of eligibility to anyone providing false information on an application.
378 (b) (i) The bureau shall perform a check of records of governmental agencies,
379 including national criminal databases, to determine whether an offender is eligible to receive a
380 certificate of eligibility under this section.
381 (ii) If the offender meets all of the criteria under Subsections [
382 and (3), the bureau shall issue a certificate of eligibility to the offender, which shall be valid for
383 a period of 90 days from the date the certificate is issued.
385 eligibility in accordance with the process in Section 63J-1-504.
386 (ii) The application fee shall be paid at the time the offender submits an application for
387 a certificate of eligibility to the bureau.
388 (iii) If the bureau determines that the issuance of a certificate of eligibility is
389 appropriate, the offender will be charged an additional fee for the issuance of a certificate of
392 General Fund as a dedicated credit by the department to cover the costs incurred in determining
395 with the court, and deliver a copy of the petition to the office of the prosecutor.
396 (i) Upon receipt of a petition for removal from the Sex Offender and Kidnap Offender
397 Registry, the office of the prosecutor shall provide notice of the petition:
398 (A) by first-class mail to the victim at the most recent address of record on file or, if
399 the victim is still a minor, to the parent or guardian of the victim[
400 (B) to the Sex and Kidnap Offender Registry office in the Department of Corrections.
401 (ii) The notice shall include a copy of the petition, state that the victim has a right to
402 object to the removal of the offender from the registry, and provide instructions for registering
403 an objection with the court.
404 (b) The office of the prosecutor shall provide the following, if available, to the court
405 within 30 days after receiving the petition:
406 (i) presentencing report;
407 (ii) any evaluation done as part of sentencing; and
408 (iii) any other information the office of the prosecutor feels the court should consider.
409 (c) The victim, or the victim's parent or guardian if the victim is a minor, may respond
410 to the petition by filing a recommendation or objection with the court within 45 days after the
411 mailing of the petition to the victim.
413 (i) review the petition and all documents submitted with the petition; and
414 (ii) hold a hearing if requested by the prosecutor or the victim.
415 (b) The court shall consider whether the offender has paid all restitution ordered by the
416 court or the Board of Pardons.
417 (c) If the court determines that it is not contrary to the interests of the public to do so, it
418 may grant the petition and order removal of the offender from the registry.
419 (d) If the court grants the petition, it shall forward a copy of the order directing removal
420 of the offender from the registry to the department and the office of the prosecutor.
421 (e) If the court denies the petition, the offender may not submit another petition for
422 three years.
424 Offender Registry office in the Department of Corrections of the court's decision in the same
425 manner as notification was provided in Subsection [
Legislative Review Note
Office of Legislative Research and General Counsel