Chief Sponsor: Eric K. Hutchings

Senate Sponsor: ____________


8     General Description:
9          This bill makes specific changes regarding the expungement of information in state
10     agency files and creates a statement of legislative intent with regard to expungement.
11     Highlighted Provisions:
12          This bill:
13          ▸     creates a new definition of "expunge";
14          ▸     requires that an administrative agency remove information regarding expunged
15     convictions from public databases;
16          ▸     creates a statement of legislative intent for expungement; and
17          ▸     provides a stated purpose for expungement.
18     Money Appropriated in this Bill:
19          None
20     Other Special Clauses:
21          None
22     Utah Code Sections Affected:
23     AMENDS:
24          77-40-101, as enacted by Laws of Utah 2010, Chapter 283
25          77-40-102, as last amended by Laws of Utah 2014, Chapter 199
26          77-40-107, as last amended by Laws of Utah 2014, Chapter 263
27          77-40-108, as last amended by Laws of Utah 2013, Chapters 20 and 41


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

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

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

121     most recent address of record on file.
122          (b) The notice shall include a copy of the petition, certificate of eligibility, statutes and
123     rules applicable to the petition, state that the victim has a right to object to the expungement,
124     and provide instructions for registering an objection with the court.
125          (3) The prosecuting attorney [and], the victim, and any state agency that maintains an
126     administrative record relating to the incident for which expungement is sought, if applicable,
127     may respond to the petition by filing a recommendation or objection with the court within 30
128     days after receipt of the petition.
129          (4) (a) The court may request a written response to the petition from the Division of
130     Adult Probation and Parole within the Department of Corrections.
131          (b) If requested, the response prepared by Adult Probation and Parole shall include:
132          (i) the reasons probation was terminated; and
133          (ii) certification that the petitioner has completed all requirements of sentencing and
134     probation or parole.
135          (c) A copy of the response shall be provided to the petitioner and the prosecuting
136     attorney.
137          (5) The petitioner may respond in writing to any objections filed by the prosecutor or
138     the victim and the response prepared by Adult Probation and Parole within 15 days after
139     receipt.
140          (6) (a) If the court receives an objection concerning the petition from any party, the
141     court shall set a date for a hearing and notify the petitioner [and], the prosecuting attorney, and
142     any state agency that maintains an administrative record relating to the incident for which
143     expungement is sought of the date set for the hearing. The prosecuting attorney shall notify the
144     victim of the date set for the hearing.
145          (b) The petitioner, the prosecuting attorney, the victim, any state agency that maintains
146     an administrative record relating to the incident for which expungement is sought, and any
147     other person who has relevant information about the petitioner may testify at the hearing.
148          (c) The court shall review the petition, the certificate of eligibility, and any written
149     responses submitted regarding the petition.
150          (7) If no objection is received within 60 days from the date the petition for
151     expungement was filed with the court, the expungement may be granted without a hearing.

152          (8) The court shall issue an order of expungement if it finds by clear and convincing
153     evidence that:
154          (a) the petition and certificate of eligibility are sufficient;
155          (b) the statutory requirements have been met;
156          (c) if the petitioner seeks expungement of drug possession offenses allowed under
157     Subsection 77-40-105(5), the petitioner is not illegally using controlled substances and is
158     successfully managing any substance addiction; and
159          (d) it is not contrary to the interests of the public to grant the expungement.
160          (9) A court may not expunge a conviction of an offense for which a certificate of
161     eligibility may not be or should not have been issued under Section 77-40-104 or 77-40-105.
162          Section 4. Section 77-40-108 is amended to read:
163          77-40-108. Distribution of order -- Redaction -- Receipt of order --
164     Administrative proceedings -- Bureau requirements -- Agency action.
165          (1) (a) A person who receives an order of expungement under this chapter or Section
166     77-27-5.1 shall be responsible for delivering a copy of the order of expungement to all affected
167     criminal justice agencies and officials including the court, arresting agency, booking agency,
168     prosecuting agency, Department of Corrections, and the bureau.
169          (b) A person who receives an order of expungement under Section 77-27-5.1, shall pay
170     a processing fee to the bureau, established in accordance with the process in Section 63J-1-504,
171     before the bureau's record may be expunged.
172          (2) Unless otherwise provided by law or ordered by a court of competent jurisdiction to
173     respond differently, a person who has received an expungement of an arrest or conviction
174     under this chapter or Section 77-27-5.1, may respond to any inquiry as though the arrest or
175     conviction did not occur.
176          (3) The bureau shall forward a copy of the expungement order to the Federal Bureau of
177     Investigation.
178          (4) [An agency] Within 30 days of receiving an expungement order an agency shall
179     expunge all qualifying criminal records and seal the petitioner's [identifying information
180     contained in] administrative records in [its] the agency's possession or under the agency's
181     control relating to the incident or conviction for which expungement is ordered.
182          (a) If the investigation, arrest, detention, or conviction resulted from an agency's

183     investigation or referral to law enforcement, all administrative records that pertain to the act or
184     series of acts that were investigated by the agency and led to the referral shall be sealed.
185          (b) If the investigation, arrest, detention, or conviction was not based upon the agency's
186     investigation or referral and the agency suspends or revokes a petitioner's credential, all
187     administrative records of the action and resulting administrative action shall be sealed. The
188     public record may reflect that the credential is invalid.
189          (c) If the agency was not involved in the investigation, prosecution, or conviction, and
190     the petitioner maintained a credential for the duration of the process, all administrative records
191     shall be sealed.
192          (5) (a) Sealed administrative records maintained by an agency to preserve the integrity
193     of the agency's files may be referenced and considered if the petitioner seeks, at a subsequent
194     time, to reinstate a credential suspended or revoked by the agency in the same field as the
195     credential the petitioner held at the time of the investigation, arrest, detention, or conviction.
196          (b) The agency may retain the administrative record internally in the agency's files,
197     however the information may not be made available to the public.
198          (6) The agency shall insure that any information or record subject to the provisions of
199     this section is 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     that 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