This document includes House Committee Amendments incorporated into the bill on Wed, Feb 1, 2017 at 11:13 AM by ryoung.
This document includes House Floor Amendments incorporated into the bill on Wed, Mar 8, 2017 at 12:11 PM by jeyring.
Representative Eric K. Hutchings proposes the following substitute bill:


1     
EXPUNGEMENT AMENDMENTS

2     
2017 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Daniel W. Thatcher

5     
House Sponsor: Eric K. Hutchings

6     

7     LONG TITLE
8     General Description:
9          This bill makes changes to provisions regarding expungements and pardons.
10     Highlighted Provisions:
11          This bill:
12          ▸     adds definitions;
13          ▸     prevents the dissemination of information regarding pardons and expungements by
14     certain persons;
15          ▸     specifies that infractions, traffic offenses, and certain minor offenses will not count
16     towards expungement eligibility;
17          ▸     allows for an increase in the number of convictions counted to be eligible for
18     expungement; and
19          ▸     allows the court during sentencing in a criminal prosecution to take into account if
20     the level of the offense has been reduced since the defendant's conviction.
21     Money Appropriated in this Bill:
22          None
23     Other Special Clauses:
24          None
25     Utah Code Sections Affected:
26     AMENDS:
27          76-3-402, as last amended by Laws of Utah 2012, Chapter 145
28          77-27-5.1, as last amended by Laws of Utah 2014, Chapter 199
29          77-40-102, as last amended by Laws of Utah 2014, Chapter 199
30          77-40-105, as last amended by Laws of Utah 2016, Chapter 185
31          77-40-106, as last amended by Laws of Utah 2013, Chapter 41
32          77-40-107, as last amended by Laws of Utah 2014, Chapter 263
33          77-40-108, as last amended by Laws of Utah 2013, Chapters 20 and 41
34          77-40-109, as last amended by Laws of Utah 2016, Chapter 144
35          77-40-112, as renumbered and amended by Laws of Utah 2010, Chapter 283
36     

37     Be it enacted by the Legislature of the state of Utah:
38          Section 1. Section 76-3-402 is amended to read:
39          76-3-402. Conviction of lower degree of offense -- Procedure and limitations.
40          (1) If at the time of sentencing the court, having regard to the nature and circumstances
41     of the offense of which the defendant was found guilty and to the history and character of the
42     defendant, and after having given any victims present at the sentencing and the prosecuting
43     attorney an opportunity to be heard, concludes it would be unduly harsh to record the
44     conviction as being for that degree of offense established by statute, the court may enter a
45     judgment of conviction for the next lower degree of offense and impose sentence accordingly.
46          (2) (a) If the court suspends the execution of the sentence and places the defendant on
47     probation, whether or not the defendant is committed to jail as a condition of probation, the
48     court may enter a judgment of conviction for the next lower degree of offense:
49          [(a)] (i) after the defendant has been successfully discharged from probation;
50          [(b)] (ii) upon motion and notice to the prosecuting attorney;
51          [(c)] (iii) after reasonable effort has been made by the prosecuting attorney to provide
52     notice to any victims;
53          [(d)] (iv) after a hearing if requested by either party [under] described in Subsection
54     (2)[(c)](a)(iii); and
55          [(e)] (v) if the court finds entering a judgment of conviction for the next lower degree
56     of offense is in the interest of justice.
57          (b) In making the finding in Subsection (2)(a)(v), the court shall consider as a factor in
58     favor of granting the reduction that, subsequent to the defendant's conviction, the level of the
59     offense has been reduced by law.
60          (3) (a) An offense may be reduced only one degree under this section, whether the
61     reduction is entered under Subsection (1) or (2), unless the prosecutor specifically agrees in
62     writing or on the court record that the offense may be reduced two degrees.
63          (b) In no case may an offense be reduced under this section by more than two degrees.
64          (4) This section does not preclude any person from obtaining or being granted an
65     expungement of his record as provided by law.
66          (5) The court may not enter judgment for a conviction for a lower degree of offense if:
67          (a) the reduction is specifically precluded by law; or
68          (b) if any unpaid balance remains on court ordered restitution for the offense for which
69     the reduction is sought.
70          (6) When the court enters judgment for a lower degree of offense under this section,
71     the actual title of the offense for which the reduction is made may not be altered.
72          (7) (a) A person may not obtain a reduction under this section of a conviction that
73     requires the person to register as a sex offender until the registration requirements under Title
74     77, Chapter 41, Sex and Kidnap Offender Registry, have expired.
75          (b) A person required to register as a sex offender for the person's lifetime under
76     Subsection 77-41-105(3)(c) may not be granted a reduction of the conviction for the offense or
77     offenses that require the person to register as a sex offender.
78          (8) As used in this section, "next lower degree of offense" includes an offense
79     regarding which:
80          (a) a statutory enhancement is charged in the information or indictment that would
81     increase either the maximum or the minimum sentence; and
82          (b) the court removes the statutory enhancement pursuant to this section.
83          Section 2. Section 77-27-5.1 is amended to read:
84          77-27-5.1. Board authority to order expungement.
85          (1) Upon granting a pardon, the board shall issue an expungement order, directing any
86     criminal justice agency to remove the recipient's identifying information relating to the
87     expunged convictions from its records.
88          (a) When a pardon has been granted, Ĥ→ [employees of the Bureau of Criminal
89     Identification or] ←Ĥ employees of the Board of Pardons and Parole may not divulge any
89a     identifying
90     information regarding the pardoned person to any person or agency, except for the pardoned
91     person.
92          (b) The Bureau of Criminal Identification may not count pardoned convictions against
93     any future expungement eligibility.
94          (2) An expungement order, issued by the board, has at least the same legal effect and
95     authority as an order of expungement issued by a court, pursuant to Title 77, Chapter 40, Utah
96     Expungement Act.
97          (3) The board shall provide clear written directions to the recipient along with a list of
98     agencies known to be affected by the expungement order.
99          Section 3. Section 77-40-102 is amended to read:
100          77-40-102. Definitions.
101          As used in this chapter:
102          (1) "Administrative finding" means a decision upon a question of fact reached by an
103     administrative agency following an administrative hearing or other procedure satisfying the
104     requirements of due process.
105          (2) "Agency" means a state, county, or local government entity that generates or
106     maintains records relating to an investigation, arrest, detention, or conviction for an offense for
107     which expungement may be ordered.
108          (3) "Bureau" means the Bureau of Criminal Identification of the Department of Public
109     Safety established in Section 53-10-201.
110          (4) "Certificate of eligibility" means a document issued by the bureau stating that the
111     criminal record and all records of arrest, investigation, and detention associated with a case that
112     is the subject of a petition for expungement is eligible for expungement.
113          (5) "Conviction" means judgment by a criminal court on a verdict or finding of guilty
114     after trial, a plea of guilty, or a plea of nolo contendere.
115          (6) "Department" means the Department of Public Safety established in Section
116     53-1-103.
117          (7) "Drug possession offense" means an offense under:
118          (a) Subsection 58-37-8(2), except any offense under Subsection 58-37-8(2)(b)(i),
119     possession of 100 pounds or more of marijuana, any offense enhanced under Subsection
120     58-37-8(2)(e), violation in a correctional facility or Subsection 58-37-8(2)(g), driving with a
121     controlled substance illegally in the person's body and negligently causing serious bodily injury
122     or death of another;
123          (b) Subsection 58-37a-5(1), use or possession of drug paraphernalia;
124          (c) Section 58-37b-6, possession or use of an imitation controlled substance; or
125          (d) any local ordinance which is substantially similar to any of the offenses described
126     in this Subsection (7).
127          (8) "Expunge" means to seal or otherwise restrict access to the petitioner's record held
128     by an agency when the record includes a criminal investigation, detention, arrest, or conviction.
129          (9) "Jurisdiction" means a state, district, province, political subdivision, territory, or
130     possession of the United States or any foreign country.
131          (10) "Minor regulatory offense" means any class B or C misdemeanor offense, as well
132     as any local ordinance, except:
133          (a) any drug possession offense;
134          (b) Title 41, Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving;
135          (c) Sections 73-18-13 through 73-18-13.6;
136          (d) those defined in Title 76, Utah Criminal Code; or
137          (e) any local ordinance that is substantially similar to those offenses listed in
138     Subsections (10)(a) through (d).
139          [(10)] (11) "Petitioner" means a person seeking expungement under this chapter.
140          [(11)] (12) (a) "Traffic offense" means:
141          (i) all [offenses in the following parts] infractions, class B misdemeanors, and class C
142     misdemeanors in Title 41, Chapter 6a, Traffic Code;
143          (ii) Title 53, Chapter 3, Part 2, Driver Licensing Act;
144          (iii) Title 73, Chapter 18, State Boating Act; and
145          (iv) all local ordinances that are substantially similar to [the] those offenses[:].
146          [(a) Title 41, Chapter 6a, Part 3, Traffic-Control Devices;]
147          [(b) Title 41, Chapter 6a, Part 6, Speed Restrictions;]
148          [(c) Title 41, Chapter 6a, Part 7, Driving on Right Side of Highway and Passing;]
149          [(d) Title 41, Chapter 6a, Part 8, Turning and Signaling for Turns;]
150          [(e) Title 41, Chapter 6a, Part 9, Right-of-Way;]
151          [(f) Title 41, Chapter 6a, Part 10, Pedestrians' Rights and Duties;]
152          [(g) Title 41, Chapter 6a, Part 11, Bicycles, Regulation of Operation;]
153          [(h) Title 41, Chapter 6a, Part 12, Railroad Trains, Railroad Grade Crossings, and
154     Safety Zones;]
155          [(i) Title 41, Chapter 6a, Part 13, School Buses and School Bus Parking Zones;]
156          [(j) Title 41, Chapter 6a, Part 14, Stopping, Standing, and Parking;]
157          [(k) Title 41, Chapter 6a, Part 15, Special Vehicles;]
158          [(l) Title 41, Chapter 6a, Part 16, Vehicle Equipment;]
159          [(m) Title 41, Chapter 6a, Part 17, Miscellaneous Rules; and]
160          [(n) Title 41, Chapter 6a, Part 18, Motor Vehicle Safety Belt Usage Act.]
161          (b) "Traffic offense" does not mean:
162          (i) Title 41, Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving;
163          (ii) Sections 73-18-13 through 73-18-13.6; or
164          (iii) any local ordinance that is substantially similar to the offenses listed in
165     Subsections (12)(b)(i) and (ii).
166          Section 4. Section 77-40-105 is amended to read:
167          77-40-105. Eligibility for expungement of conviction -- Requirements.
168          (1) A person convicted of an offense may apply to the bureau for a certificate of
169     eligibility to expunge the record of conviction as provided in this section.
170          (2) A petitioner is not eligible to receive a certificate of eligibility from the bureau if:
171          (a) the conviction for which expungement is sought is:
172          (i) a capital felony;
173          (ii) a first degree felony;
174          (iii) a violent felony as defined in Subsection 76-3-203.5(1)(c)(i);
175          (iv) felony automobile homicide;
176          (v) a felony violation of Subsection 41-6a-501(2); or
177          (vi) a registerable sex offense as defined in Subsection 77-41-102(17);
178          (b) a criminal proceeding is pending against the petitioner; or
179          (c) the petitioner intentionally or knowingly provides false or misleading information
180     on the application for a certificate of eligibility.
181          (3) A petitioner seeking to obtain expungement for a record of conviction is not
182     eligible to receive a certificate of eligibility from the bureau until all of the following have
183     occurred:
184          (a) all fines and interest ordered by the court have been paid in full;
185          (b) all restitution ordered by the court pursuant to Section 77-38a-302, or by the Board
186     of Pardons and Parole pursuant to Section 77-27-6, has been paid in full; and
187          (c) the following time periods have elapsed from the date the petitioner was convicted
188     or released from incarceration, parole, or probation, whichever occurred last, for each
189     conviction the petitioner seeks to expunge:
190          (i) 10 years in the case of a misdemeanor conviction of Subsection 41-6a-501(2) or a
191     felony conviction of Subsection 58-37-8(2)(g);
192          (ii) seven years in the case of a felony;
193          (iii) five years in the case of any class A misdemeanor or a felony drug possession
194     offense;
195          (iv) four years in the case of a class B misdemeanor; or
196          (v) three years in the case of any other misdemeanor or infraction.
197          (4) The bureau may not count infractions, traffic offenses, or minor regulatory offenses
198     when determining expungement eligibility.
199          [(4)] (5) The bureau may not issue a certificate of eligibility if, at the time the petitioner
200     seeks a certificate of eligibility, the bureau determines that the petitioner's criminal history,
201     including previously expunged convictions, contains any of the following, except as provided
202     in Subsection (8):
203          (a) two or more felony convictions other than for drug possession offenses, each of
204     which is contained in a separate criminal episode;
205          (b) any combination of three or more convictions other than for drug possession
206     offenses that include two class A misdemeanor convictions, each of which is contained in a
207     separate criminal episode;
208          (c) any combination of four or more convictions other than for drug possession
209     offenses that include three class B misdemeanor convictions, each of which is contained in a
210     separate criminal episode; or
211          (d) five or more convictions other than for drug possession offenses of any degree
212     whether misdemeanor or felony, [excluding infractions and any traffic offenses,] each of which
213     is contained in a separate criminal episode.
214          [(5)] (6) The bureau may not issue a certificate of eligibility if, at the time the petitioner
215     seeks a certificate of eligibility, the bureau determines that the petitioner's criminal history,
216     including previously expunged convictions, contains any of the following:
217          (a) three or more felony convictions for drug possession offenses, each of which is
218     contained in a separate criminal episode; or
219          (b) any combination of five or more convictions for drug possession offenses, each of
220     which is contained in a separate criminal episode.
221          [(6)] (7) If the petitioner's criminal history contains convictions for both a drug
222     possession offense and a non drug possession offense arising from the same criminal episode,
223     that criminal episode shall be counted as provided in Subsection [(4)] (5) if any non drug
224     possession offense in that episode:
225          (a) is a felony or class A misdemeanor; or
226          (b) has the same or a longer waiting period under Subsection (3) than any drug
227     possession offense in that episode.
228          (8) If at least 10 years have elapsed from the date the petitioner was convicted or
229     released from incarceration, parole, or probation, whichever occurred last, for all convictions,
230     then each eligibility limit defined in Subsection (5) shall be increased by one.
231          [(7)] (9) If, prior to May 14, 2013, the petitioner has received a pardon from the Utah
232     Board of Pardons and Parole, the petitioner is entitled to an expungement order for all
233     pardoned crimes pursuant to Section 77-27-5.1.
234          Section 5. Section 77-40-106 is amended to read:
235          77-40-106. Application for certificate of eligibility -- Fees.
236          (1) (a) A petitioner seeking to obtain an expungement for a criminal record shall apply
237     for a certificate of eligibility from the bureau.
238          (b) A petitioner who intentionally or knowingly provides any false or misleading
239     information to the bureau when applying for a certificate of eligibility is guilty of a class B
240     misdemeanor and subject to prosecution under Section 76-8-504.6.
241          (c) Regardless of whether the petitioner is prosecuted, the bureau may deny a
242     certificate of eligibility to anyone [providing] who knowingly provides false information on an
243     application.
244          (2) (a) The bureau shall perform a check of records of governmental agencies,
245     including national criminal data bases, to determine whether a petitioner is eligible to receive a
246     certificate of eligibility under this chapter.
247          (b) For purposes of determining eligibility under this chapter, the bureau may review
248     records of arrest, investigation, detention and conviction that have been previously expunged,
249     regardless of the jurisdiction in which the expungement occurred.
250          (c) If the petitioner meets all of the criteria under Section 77-40-104 or 77-40-105, the
251     bureau shall issue a certificate of eligibility to the petitioner which shall be valid for a period of
252     90 days from the date the certificate is issued.
253          (d) If, after reasonable research, a disposition for an arrest on the criminal history file is
254     unobtainable, the bureau may issue a special certificate giving determination of eligibility to
255     the court.
256          (3) (a) The bureau shall charge application and issuance fees for a certificate of
257     eligibility or special certificate in accordance with the process in Section 63J-1-504.
258          (b) The application fee shall be paid at the time the petitioner submits an application
259     for a certificate of eligibility to the bureau.
260          (c) If the bureau determines that the issuance of a certificate of eligibility or special
261     certificate is appropriate, the petitioner will be charged an additional fee for the issuance of a
262     certificate of eligibility or special certificate unless Subsection (3)(d) applies.
263          (d) An issuance fee may not be assessed against a petitioner who qualifies for a
264     certificate of eligibility under Section 77-40-104 unless the charges were dismissed pursuant to
265     a plea in abeyance agreement under Title 77, Chapter 2a, Pleas in Abeyance, or a diversion
266     agreement under Title 77, Chapter 2, Prosecution, Screening, and Diversion.
267          (e) Funds generated under this Subsection (3) shall be deposited in the General Fund as
268     a dedicated credit by the department to cover the costs incurred in determining eligibility.
269          (4) The bureau shall provide clear written directions to the petitioner along with a list
270     of agencies known to be affected by an order of expungement.
271          Section 6. Section 77-40-107 is amended to read:
272          77-40-107. Petition for expungement -- Prosecutorial responsibility -- Hearing --
273     Standard of proof -- Exception.
274          (1) The petitioner shall file a petition for expungement and the certificate of eligibility
275     in the court specified in Section 77-40-103 and deliver a copy of the petition and certificate to
276     the prosecuting agency. If the certificate is filed electronically, the petitioner or the petitioner's
277     attorney shall keep the original certificate until the proceedings are concluded. If the original
278     certificate is filed with the petition, the clerk of the court shall scan it and return it to the
279     petitioner or the petitioner's attorney, who shall keep it until the proceedings are concluded.
280          (2) (a) Upon receipt of a petition for expungement of a conviction, the prosecuting
281     attorney shall provide notice of the expungement request by first-class mail to the victim at the
282     most recent address of record on file.
283          (b) The notice shall include a copy of the petition, certificate of eligibility, statutes and
284     rules applicable to the petition, state that the victim has a right to object to the expungement,
285     and provide instructions for registering an objection with the court.
286          (3) The prosecuting attorney and the victim, if applicable, may respond to the petition
287     by filing a recommendation or objection with the court within [30] 35 days after receipt of the
288     petition.
289          (4) (a) The court may request a written response to the petition from the Division of
290     Adult Probation and Parole within the Department of Corrections.
291          (b) If requested, the response prepared by Adult Probation and Parole shall include:
292          (i) the reasons probation was terminated; and
293          (ii) certification that the petitioner has completed all requirements of sentencing and
294     probation or parole.
295          (c) A copy of the response shall be provided to the petitioner and the prosecuting
296     attorney.
297          (5) The petitioner may respond in writing to any objections filed by the prosecutor or
298     the victim and the response prepared by Adult Probation and Parole within [15] 14 days after
299     receipt.
300          (6) (a) If the court receives an objection concerning the petition from any party, the
301     court shall set a date for a hearing and notify the petitioner and the prosecuting attorney of the
302     date set for the hearing. The prosecuting attorney shall notify the victim of the date set for the
303     hearing.
304          (b) The petitioner, the prosecuting attorney, the victim, and any other person who has
305     relevant information about the petitioner may testify at the hearing.
306          (c) The court shall review the petition, the certificate of eligibility, and any written
307     responses submitted regarding the petition.
308          (7) If no objection is received within 60 days from the date the petition for
309     expungement was filed with the court, the expungement may be granted without a hearing.
310          (8) The court shall issue an order of expungement if it finds by clear and convincing
311     evidence that:
312          (a) the petition and certificate of eligibility are sufficient;
313          (b) the statutory requirements have been met;
314          (c) if the petitioner seeks expungement of drug possession offenses allowed under
315     Subsection 77-40-105[(5)](6), the petitioner is not illegally using controlled substances and is
316     successfully managing any substance addiction; and
317          (d) it is not contrary to the interests of the public to grant the expungement.
318          (9) A court may not expunge a conviction of an offense for which a certificate of
319     eligibility may not be or should not have been issued under Section 77-40-104 or 77-40-105.
320          Section 7. Section 77-40-108 is amended to read:
321          77-40-108. Distribution of order -- Redaction -- Receipt of order --
322     Administrative proceedings -- Bureau requirements.
323          (1) (a) A person who receives an order of expungement under this chapter or Section
324     77-27-5.1 shall be responsible for delivering a copy of the order of expungement to all affected
325     criminal justice agencies and officials including the court, arresting agency, booking agency,
326     prosecuting agency, Department of Corrections, and the bureau.
327          (b) A person who receives an order of expungement under Section 77-27-5.1, shall pay
328     a processing fee to the bureau, established in accordance with the process in Section 63J-1-504,
329     before the bureau's record may be expunged.
330          (2) Unless otherwise provided by law or ordered by a court of competent jurisdiction to
331     respond differently, a person who has received an expungement of an arrest or conviction
332     under this chapter or Section 77-27-5.1, may respond to any inquiry as though the arrest or
333     conviction did not occur.
334          (3) The bureau shall forward a copy of the expungement order to the Federal Bureau of
335     Investigation.
336          (4) An agency receiving an expungement order shall expunge the petitioner's
337     identifying information contained in records in its possession relating to the incident for which
338     expungement is ordered.
339          (5) Unless ordered by a court to do so, or in accordance with Subsection 77-40-109(2),
340     a government agency or official may not divulge information or records which have been
341     expunged regarding the petitioner contained in a record of arrest, investigation, detention, or
342     conviction after receiving an expungement order.
343          (6) (a) An order of expungement may not restrict an agency's use or dissemination of
344     records in its ordinary course of business until the agency has received a copy of the order.
345          (b) Any action taken by an agency after issuance of the order but prior to the agency's
346     receipt of a copy of the order may not be invalidated by the order.
347          (7) An order of expungement may not:
348          (a) terminate or invalidate any pending administrative proceedings or actions of which
349     the petitioner had notice according to the records of the administrative body prior to issuance of
350     the expungement order;
351          (b) affect the enforcement of any order or findings issued by an administrative body
352     pursuant to its lawful authority prior to issuance of the expungement order; [or]
353          (c) remove any evidence relating to the petitioner including records of arrest, which the
354     administrative body has used or may use in these proceedings[.]; or
355          (d) prevent an agency from maintaining, sharing, or distributing any record required by
356     law.
357          Section 8. Section 77-40-109 is amended to read:
358          77-40-109. Retention and release of expunged records -- Agencies.
359          (1) The bureau shall keep, index, and maintain all expunged records of arrests and
360     convictions.
361          (2) (a) Employees of the bureau may not divulge any information contained in its index
362     to any person or agency without a court order unless specifically authorized by statute.
363          (b) The following organizations may receive information contained in expunged
364     records upon specific request:
365          (i) the Board of Pardons and Parole;
366          (ii) Peace Officer Standards and Training;
367          (iii) federal authorities, [unless prohibited] only as required by federal law;
368          (iv) the Department of Commerce;
369          (v) the Department of Insurance;
370          (vi) the State Board of Education; and
371          (vii) the Commission on Criminal and Juvenile Justice, for purposes of investigating
372     applicants for judicial office.
373          (c) A person or agency authorized by this Subsection (2) to view expunged records
374     may not reveal or release any information obtained from the expunged records to anyone
375     outside the court order or specific request, including distribution on a public website.
376          (3) The bureau may also use the information in its index as provided in Section
377     53-5-704.
378          (4) If, after obtaining an expungement, the petitioner is charged with a felony, the state
379     may petition the court to open the expunged records upon a showing of good cause.
380          (5) (a) For judicial sentencing, a court may order any records expunged under this
381     chapter Ĥ→ [[] or Section 77-27-5.1 []] ←Ĥ to be opened and admitted into evidence.
382          (b) The records are confidential and are available for inspection only by the court,
383     parties, counsel for the parties, and any other person who is authorized by the court to inspect
384     them.
385          (c) At the end of the action or proceeding, the court shall order the records expunged
386     again.
387          (d) Any person authorized by this Subsection (5) to view expunged records may not
388     reveal or release any information obtained from the expunged records to anyone outside the
389     court.
390          (6) Records released under this chapter are classified as protected under Section
391     63G-2-305 and are accessible only as provided under Title 63G, Chapter 2, Part 2, Access to
392     Records.
393          Section 9. Section 77-40-112 is amended to read:
394          77-40-112. Penalty.
395          [Any person who willfully violates any prohibition in this chapter] An employee or
396     agent of an agency that is prohibited from disseminating information from expunged or
397     pardoned records under Section Ĥ→ [77-40-5.1] 77-27-5.1 ←Ĥ or 77-40-109 who knowingly or
397a     intentionally
398     discloses identifying information from the expunged or pardoned record that has been pardoned
399     or expunged, unless allowed by law, is guilty of a class A misdemeanor [unless the prohibition
400     specifically indicates a different penalty].