Chief Sponsor: Brian M. Greene

Senate Sponsor: ____________


8     Committee Note:
9          The Judiciary Interim Committee recommended this bill.
10     General Description:
11          This bill makes specific changes regarding the expungement of information in state
12     agency files and creates a statement of legislative intent with regard to expungement.
13     Highlighted Provisions:
14          This bill:
15          ▸     creates a new definition of "expunge";
16          ▸     requires that an administrative agency remove information regarding expunged
17     convictions from public databases;
18          ▸     creates a statement of legislative intent for expungement; and
19          ▸     provides a stated purpose for expungement.
20     Money Appropriated in this Bill:
21          None
22     Other Special Clauses:
23          None
24     Utah Code Sections Affected:
25     AMENDS:
26          77-40-101, as enacted by Laws of Utah 2010, Chapter 283
27          77-40-102, as last amended by Laws of Utah 2014, Chapter 199

28          77-40-107, as last amended by Laws of Utah 2014, Chapter 263
29          77-40-108, as last amended by Laws of Utah 2013, Chapters 20 and 41

31     Be it enacted by the Legislature of the state of Utah:
32          Section 1. Section 77-40-101 is amended to read:
33          77-40-101. Title -- Purpose -- Legislative intent.
34          (1) This chapter is known as the "Utah Expungement Act."
35          (2) The Legislature recognizes that an individual who has committed a criminal act and
36     paid the individual's debt to society should, under certain circumstances, be able to move
37     forward and rebuild the individual's life without being hindered by the past.
38          (3) The Legislature, therefore, finds and declares the following:
39          (a) The inability to obtain an expungement can prevent certain individuals from
40     obtaining gainful employment, however, the need for employment should be balanced
41     appropriately against the desire for public safety.
42          (b) It is the intent of the Legislature that allowing for the expungement of certain
43     criminal offenses will provide an opportunity to:
44          (i) break the cycle of criminal recidivism;
45          (ii) increase public safety;
46          (iii) assist the growing population of offenders reentering the community to establish a
47     self-sustaining life through opportunities in employment; and
48          (iv) restore certain civil liberties to an offender to allow the offender to fully participate
49     in society.
50          (4) This chapter further requires that an agency remove or redact certain identifying
51     information from the agency's public records and maintain that information only for internal
52     record keeping purposes to preserve the integrity of the agency's files.
53          Section 2. Section 77-40-102 is amended to read:
54          77-40-102. Definitions.
55          As used in this chapter:
56          [(1) "Administrative finding" means a decision upon a question of fact reached by an
57     administrative agency following an administrative hearing or other procedure satisfying the
58     requirements of due process.]

59          (1) "Administrative record" means a record held by an agency, other than a criminal
60     record, that is related to the incident giving rise to an investigation, arrest, detention, or
61     conviction for which an expungement has been ordered.
62          (2) "Agency" means a state, county, or local government entity that generates or
63     maintains records relating to an investigation, arrest, detention, or conviction, or an
64     administrative action related to a criminal investigation or conviction, for an offense for which
65     expungement may be ordered.
66          (3) "Bureau" means the Bureau of Criminal Identification of the Department of Public
67     Safety established in Section 53-10-201.
68          (4) "Certificate of eligibility" means a document issued by the bureau stating that the
69     criminal record and all records of arrest, investigation, and detention associated with a case that
70     is the subject of a petition for expungement is eligible for expungement.
71          (5) "Conviction" means judgment by a criminal court on a verdict or finding of guilty
72     after trial, a plea of guilty, or a plea of nolo contendere.
73          (6) "Department" means the Department of Public Safety established in Section
74     53-1-103.
75          (7) "Drug possession offense" means an offense under:
76          (a) Subsection 58-37-8(2), except any offense under Subsection 58-37-8(2)(b)(i),
77     possession of 100 pounds or more of marijuana, any offense enhanced under Subsection
78     58-37-8(2)(e), violation in a correctional facility or Subsection 58-37-8(2)(g), driving with a
79     controlled substance illegally in the person's body and negligently causing serious bodily injury
80     or death of another;
81          (b) Subsection 58-37a-5(1), use or possession of drug paraphernalia;
82          (c) Section 58-37b-6, possession or use of an imitation controlled substance; or
83          (d) any local ordinance which is substantially similar to any of the offenses described
84     in this Subsection (7).
85          (8) "Expunge" means to [seal or otherwise restrict access to the] completely remove
86     from an agency's records the petitioner's criminal record [held by an agency] when the record
87     includes any reference to a criminal investigation, detention, arrest, or conviction.
88          (9) "Jurisdiction" means a state, district, province, political subdivision, territory, or
89     possession of the United States or any foreign country.

90          (10) "Petitioner" means a person seeking expungement under this chapter.
91          (11) "Seal" means to restrict public access to a petitioner's administrative record or the
92     relevant portion of the petitioner's administrative record held by an agency.
93          [(11)] (12) "Traffic offense" means all offenses in the following parts and all local
94     ordinances that are substantially similar to the offenses:
95          (a) Title 41, Chapter 6a, Part 3, Traffic-Control Devices;
96          (b) Title 41, Chapter 6a, Part 6, Speed Restrictions;
97          (c) Title 41, Chapter 6a, Part 7, Driving on Right Side of Highway and Passing;
98          (d) Title 41, Chapter 6a, Part 8, Turning and Signaling for Turns;
99          (e) Title 41, Chapter 6a, Part 9, Right-of-Way;
100          (f) Title 41, Chapter 6a, Part 10, Pedestrians' Rights and Duties;
101          (g) Title 41, Chapter 6a, Part 11, Bicycles and Other Vehicles, Regulation of
102     Operation;
103          (h) Title 41, Chapter 6a, Part 12, Railroad Trains, Railroad Grade Crossings, and
104     Safety Zones;
105          (i) Title 41, Chapter 6a, Part 13, School Buses and School Bus Parking Zones;
106          (j) Title 41, Chapter 6a, Part 14, Stopping, Standing, and Parking;
107          (k) Title 41, Chapter 6a, Part 15, Special Vehicles;
108          (l) Title 41, Chapter 6a, Part 16, Vehicle Equipment;
109          (m) Title 41, Chapter 6a, Part 17, Miscellaneous Rules; and
110          (n) Title 41, Chapter 6a, Part 18, Motor Vehicle Safety Belt Usage Act.
111          Section 3. Section 77-40-107 is amended to read:
112          77-40-107. Petition for expungement -- Prosecutorial responsibility -- Hearing --
113     Standard of proof -- Exception.
114          (1) The petitioner shall file a petition for expungement and the certificate of eligibility
115     in the court specified in Section 77-40-103 and deliver a copy of the petition and certificate to
116     the prosecuting agency and any agency, if applicable, that maintains an administrative record
117     relating to the incident for which expungement is sought. If the certificate is filed
118     electronically, the petitioner or the petitioner's attorney shall keep the original certificate until
119     the proceedings are concluded. If the original certificate is filed with the petition, the clerk of
120     the court shall scan it and return it to the petitioner or the petitioner's attorney, who shall keep it

121     until the proceedings are concluded.
122          (2) (a) Upon receipt of a petition for expungement of a conviction, the prosecuting
123     attorney shall provide notice of the expungement request by first-class mail to the victim at the
124     most recent address of record on file.
125          (b) The notice shall include a copy of the petition, certificate of eligibility, statutes and
126     rules applicable to the petition, state that the victim has a right to object to the expungement,
127     and provide instructions for registering an objection with the court.
128          (3) The prosecuting attorney [and], the victim, and any agency that maintains an
129     administrative record relating to the incident for which expungement is sought, if applicable,
130     may respond to the petition by filing a recommendation or objection with the court within 30
131     days after receipt of the petition.
132          (4) (a) The court may request a written response to the petition from the Division of
133     Adult Probation and Parole within the Department of Corrections.
134          (b) If requested, the response prepared by Adult Probation and Parole shall include:
135          (i) the reasons probation was terminated; and
136          (ii) certification that the petitioner has completed all requirements of sentencing and
137     probation or parole.
138          (c) A copy of the response shall be provided to the petitioner and the prosecuting
139     attorney.
140          (5) The petitioner may respond in writing to any objections filed by the prosecutor or
141     the victim and the response prepared by Adult Probation and Parole within 15 days after
142     receipt.
143          (6) (a) If the court receives an objection concerning the petition from any party, the
144     court shall set a date for a hearing and notify the petitioner [and], the prosecuting attorney, and
145     any agency that maintains an administrative record relating to the incident for which
146     expungement is sought of the date set for the hearing. The prosecuting attorney shall notify the
147     victim of the date set for the hearing.
148          (b) The petitioner, the prosecuting attorney, the victim, any agency that maintains an
149     administrative record relating to the incident for which expungement is sought, and any other
150     person who has relevant information about the petitioner may testify at the hearing.
151          (c) The court shall review the petition, the certificate of eligibility, and any written

152     responses submitted regarding the petition.
153          (7) If no objection is received within 60 days from the date the petition for
154     expungement was filed with the court, the expungement may be granted without a hearing.
155          (8) The court shall issue an order of expungement if it finds by clear and convincing
156     evidence that:
157          (a) the petition and certificate of eligibility are sufficient;
158          (b) the statutory requirements have been met;
159          (c) if the petitioner seeks expungement of drug possession offenses allowed under
160     Subsection 77-40-105(5), the petitioner is not illegally using controlled substances and is
161     successfully managing any substance addiction; and
162          (d) it is not contrary to the interests of the public to grant the expungement.
163          (9) A court may not expunge a conviction of an offense for which a certificate of
164     eligibility may not be or should not have been issued under Section 77-40-104 or 77-40-105.
165          Section 4. Section 77-40-108 is amended to read:
166          77-40-108. Distribution of order -- Redaction -- Receipt of order --
167     Administrative proceedings -- Bureau requirements -- Agency action.
168          (1) (a) A person who receives an order of expungement under this chapter or Section
169     77-27-5.1 shall be responsible for delivering a copy of the order of expungement to all affected
170     [criminal justice] agencies and officials including the court, arresting agency, booking agency,
171     prosecuting agency, Department of Corrections, [and] the bureau, and any agency that
172     maintains an administrative record relating to the incident for which expungement is ordered.
173          (b) A person who receives an order of expungement under Section 77-27-5.1, shall pay
174     a processing fee to the bureau, established in accordance with the process in Section 63J-1-504,
175     before the bureau's record may be expunged.
176          (2) Unless otherwise provided by law or ordered by a court of competent jurisdiction to
177     respond differently, a person who has received an expungement of an arrest or conviction
178     under this chapter or Section 77-27-5.1, may respond to any inquiry as though the arrest or
179     conviction did not occur.
180          (3) The bureau shall forward a copy of the expungement order to the Federal Bureau of
181     Investigation.
182          (4) (a) [An agency] Within 30 days of receiving an expungement order an agency shall

183     expunge all qualifying criminal records and seal the petitioner's [identifying information
184     contained in] administrative records in its possession or under its control relating to the
185     incident or conviction for which expungement is ordered.
186          (b) The agency may retain the administrative record internally in its files, however, the
187     record may not be made available to the public.
188          (c) Neither the timing nor manner of the agency's acquisition or creation of a related
189     administrative record may affect the agency's duty to seal the records under this section.
190          (5) A record sealed under this chapter and retained by the agency under Subsection
191     (4)(b) may be:
192          (a) used by the agency in any manner consistent with the agency's procedures, if the
193     record is not made available to the public;
194          (b) shared by the agency with law enforcement or a court;
195          (c) shared by the agency with another agency, if the receiving agency agrees to not
196     make the record available to the public; and
197          (d) distributed by the agency as directed by court order.
198          (6) The agency shall insure that any record subject to the provisions of this section is
199     removed from any state-controlled database available to the public.
200          [(5)] (7) Unless ordered by a court to do so, or in accordance with Subsection
201     77-40-109(2), a government agency or official may not divulge information or records which
202     have been expunged or sealed regarding the petitioner contained in a record of arrest,
203     investigation, detention, or conviction after receiving an expungement order.
204          [(6)] (8) (a) An order of expungement may not restrict an agency's use or dissemination
205     of records in its ordinary course of business until the agency has received a copy of the order.
206          (b) Any action taken by an agency after issuance of the order but prior to the agency's
207     receipt of a copy of the order may not be invalidated by the order.
208          [(7)] (9) An order of expungement may not:
209          (a) terminate or invalidate any pending administrative proceedings or actions of which
210     the petitioner had notice according to the records of the administrative body prior to issuance of
211     the expungement order;
212          (b) affect the enforcement of any order or findings issued by an administrative body
213     pursuant to its lawful authority prior to issuance of the expungement order; or

214          (c) remove any evidence relating to the petitioner including records of arrest, which the
215     administrative body has used or may use in these proceedings.

Legislative Review Note
Office of Legislative Research and General Counsel