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7 LONG TITLE
8 General Description:
9 This bill amends provisions of the Utah Expungement Act regarding domestic violence
10 offenses.
11 Highlighted Provisions:
12 This bill:
13 ▸ defines terms;
14 ▸ limits an individual's eligibility for expungement of a domestic violence offense;
15 ▸ amends eligibility for removing the link between personal identifying information
16 and court case dismissed;
17 ▸ amends eligibility for expungement of conviction for a domestic violence offense;
18 and
19 ▸ makes technical and conforming changes.
20 Money Appropriated in this Bill:
21 None
22 Other Special Clauses:
23 None
24 Utah Code Sections Affected:
25 AMENDS:
26 77-40-102, as last amended by Laws of Utah 2017, Chapter 356
27 77-40-104, as last amended by Laws of Utah 2018, Chapter 266
28 77-40-104.1, as enacted by Laws of Utah 2018, Chapter 278
29 77-40-105, as last amended by Laws of Utah 2018, Chapter 266
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31 Be it enacted by the Legislature of the state of Utah:
32 Section 1. Section 77-40-102 is amended to read:
33 77-40-102. Definitions.
34 As used in this chapter:
35 (1) "Administrative finding" means a decision upon a question of fact reached by an
36 administrative agency following an administrative hearing or other procedure satisfying the
37 requirements of due process.
38 (2) "Agency" means a state, county, or local government entity that generates or
39 maintains records relating to an investigation, arrest, detention, or conviction for an offense for
40 which expungement may be ordered.
41 (3) "Bureau" means the Bureau of Criminal Identification of the Department of Public
42 Safety established in Section 53-10-201.
43 (4) "Certificate of eligibility" means a document issued by the bureau stating that the
44 criminal record and all records of arrest, investigation, and detention associated with a case that
45 is the subject of a petition for expungement is eligible for expungement.
46 (5) "Conviction" means judgment by a criminal court on a verdict or finding of guilty
47 after trial, a plea of guilty, or a plea of nolo contendere.
48 (6) "Department" means the Department of Public Safety established in Section
49 53-1-103.
50 (7) "Domestic violence offense" means the same as that term is defined in Section
51 77-36-1.
52 [
53 (a) Subsection 58-37-8(2), except any offense under Subsection 58-37-8(2)(b)(i),
54 possession of 100 pounds or more of marijuana, any offense enhanced under Subsection
55 58-37-8(2)(e), violation in a correctional facility or Subsection 58-37-8(2)(g), driving with a
56 controlled substance illegally in the person's body and negligently causing serious bodily injury
57 or death of another;
58 (b) Subsection 58-37a-5(1), use or possession of drug paraphernalia;
59 (c) Section 58-37b-6, possession or use of an imitation controlled substance; or
60 (d) any local ordinance which is substantially similar to any of the offenses described
61 in this Subsection [
62 [
63 held by an agency when the record includes a criminal investigation, detention, arrest, or
64 conviction.
65 [
66 or possession of the United States or any foreign country.
67 [
68 as well as any local ordinance, except:
69 (a) any drug possession offense;
70 (b) Title 41, Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving;
71 (c) Sections 73-18-13 through 73-18-13.6;
72 (d) those defined in Title 76, Utah Criminal Code; or
73 (e) any local ordinance that is substantially similar to those offenses listed in
74 Subsections [
75 [
76 [
77 (i) all infractions, class B misdemeanors, and class C misdemeanors in Title 41,
78 Chapter 6a, Traffic Code;
79 (ii) Title 53, Chapter 3, Part 2, Driver Licensing Act;
80 (iii) Title 73, Chapter 18, State Boating Act; and
81 (iv) all local ordinances that are substantially similar to those offenses.
82 (b) "Traffic offense" does not mean:
83 (i) Title 41, Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving;
84 (ii) Sections 73-18-13 through 73-18-13.6; or
85 (iii) any local ordinance that is substantially similar to the offenses listed in
86 Subsections [
87 Section 2. Section 77-40-104 is amended to read:
88 77-40-104. Eligibility for expungement of records of arrest, investigation, and
89 detention -- Requirements.
90 (1) [
91 formally charged with an offense may apply to the bureau for a certificate of eligibility to
92 expunge the records of arrest, investigation, and detention that may have been made in the case,
93 subject to the following conditions:
94 (a) at least 30 days have passed since the day of the arrest for which a certificate of
95 eligibility is sought;
96 (b) there are no criminal proceedings pending against the petitioner; and
97 (c) one of the following occurs:
98 (i) charges are screened by the investigating law enforcement agency and the
99 prosecutor makes a final determination that no charges will be filed in the case;
100 (ii) the entire case is dismissed with prejudice;
101 (iii) the entire case is dismissed without prejudice or without condition and:
102 (A) the prosecutor consents in writing to the issuance of a certificate of eligibility; or
103 (B) at least 180 days have passed since the day on which the case is dismissed;
104 (iv) the [
105 case; or
106 (v) the statute of limitations expires on all of the charges contained in the case.
107 (2) Notwithstanding Subsection (1)(a), the bureau shall issue a certificate of eligibility
108 on an expedited basis to a petitioner seeking expungement under Subsection (1)(c)(iv).
109 (3) (a) An individual formally charged with a domestic violence offense that is
110 dismissed with prejudice as a result of a successfully completed plea in abeyance agreement
111 under Title 77, Chapter 2a, Pleas in Abeyance, may not apply to the bureau as described in
112 Subsection (1) before five years after the day on which the individual entered the plea in
113 abeyance agreement.
114 (b) Subsection (3)(a) does not affect an individual's eligibility to remove the link
115 between personal identifying information and a dismissed court case under Section
116 77-40-104.1.
117 Section 3. Section 77-40-104.1 is amended to read:
118 77-40-104.1. Eligibility for removing the link between personal identifying
119 information and court case dismissed.
120 (1) As used in this section[
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124 (2) A person whose criminal case is dismissed may move the court for an order to
125 remove the link between the person's personal identifying information from the dismissed case
126 in any publicly searchable database of the Utah state courts and the court shall grant that relief
127 if:
128 (a) 30 days have passed from the day on which the case is dismissed; and
129 (b) no appeal is filed for the dismissed case within the 30-day period described in
130 Subsection (2)(a)[
131 [
132 (3) Removing the link to personal identifying information of a court record under
133 Subsection (2) does not affect a prosecuting, arresting, or other agency's records.
134 (4) A case history, unless expunged under this chapter, remains public and accessible
135 through a search by case number.
136 Section 4. Section 77-40-105 is amended to read:
137 77-40-105. Eligibility for expungement of conviction -- Requirements.
138 (1) A person convicted of an offense may apply to the bureau for a certificate of
139 eligibility to expunge the record of conviction as provided in this section.
140 (2) A petitioner is not eligible to receive a certificate of eligibility from the bureau if:
141 (a) the conviction for which expungement is sought is:
142 (i) a capital felony;
143 (ii) a first degree felony;
144 (iii) a violent felony as defined in Subsection 76-3-203.5(1)(c)(i);
145 (iv) felony automobile homicide;
146 (v) a felony violation of Subsection 41-6a-501(2);
147 (vi) a registerable sex offense as defined in Subsection 77-41-102(17); or
148 (vii) a registerable child abuse offense as defined in Subsection 77-43-102(2);
149 (b) a criminal proceeding is pending against the petitioner; or
150 (c) the petitioner intentionally or knowingly provides false or misleading information
151 on the application for a certificate of eligibility.
152 (3) A petitioner seeking to obtain expungement for a record of conviction is not
153 eligible to receive a certificate of eligibility from the bureau until all of the following have
154 occurred:
155 (a) all fines and interest ordered by the court related to the conviction for which
156 expungement is sought have been paid in full;
157 (b) all restitution ordered by the court pursuant to Section 77-38a-302, or by the Board
158 of Pardons and Parole pursuant to Section 77-27-6, has been paid in full; and
159 (c) the following time periods have elapsed from the date the petitioner was convicted
160 or released from incarceration, parole, or probation, whichever occurred last, for each
161 conviction the petitioner seeks to expunge:
162 (i) 10 years in the case of a misdemeanor conviction of Subsection 41-6a-501(2) or a
163 felony conviction of Subsection 58-37-8(2)(g);
164 (ii) seven years in the case of a felony;
165 (iii) five years in the case of any class A misdemeanor or a felony drug possession
166 offense;
167 (iv) four years in the case of a class B misdemeanor; or
168 (v) three years in the case of any other misdemeanor or infraction.
169 (4) The bureau may not count pending or previous infractions, traffic offenses, or
170 minor regulatory offenses, or fines or fees arising from the infractions, traffic offenses, or
171 minor regulatory offenses, when determining expungement eligibility.
172 (5) The bureau may not issue a certificate of eligibility if, at the time the petitioner
173 seeks a certificate of eligibility, the bureau determines that the petitioner's criminal history,
174 including previously expunged convictions, contains any of the following, except as provided
175 in Subsection (8):
176 (a) two or more felony convictions other than for drug possession offenses, each of
177 which is contained in a separate criminal episode;
178 (b) any combination of three or more convictions other than for drug possession
179 offenses that include two class A misdemeanor convictions, each of which is contained in a
180 separate criminal episode;
181 (c) any combination of four or more convictions other than for drug possession
182 offenses that include three class B misdemeanor convictions, each of which is contained in a
183 separate criminal episode; or
184 (d) five or more convictions other than for drug possession offenses of any degree
185 whether misdemeanor or felony, each of which is contained in a separate criminal episode.
186 (6) The bureau may not issue a certificate of eligibility if, at the time the petitioner
187 seeks a certificate of eligibility, the bureau determines that the petitioner's criminal history,
188 including previously expunged convictions, contains any of the following:
189 (a) three or more felony convictions for drug possession offenses, each of which is
190 contained in a separate criminal episode; or
191 (b) any combination of five or more convictions for drug possession offenses, each of
192 which is contained in a separate criminal episode.
193 (7) If the petitioner's criminal history contains convictions for both a drug possession
194 offense and a non drug possession offense arising from the same criminal episode, that criminal
195 episode shall be counted as provided in Subsection (5) if any non drug possession offense in
196 that episode:
197 (a) is a felony or class A misdemeanor; or
198 (b) has the same or a longer waiting period under Subsection (3) than any drug
199 possession offense in that episode.
200 (8) If at least 10 years have elapsed from the date the petitioner was convicted or
201 released from incarceration, parole, or probation, whichever occurred last, for all convictions,
202 then each eligibility limit defined in Subsection (5) shall be increased by one.
203 (9) If, prior to May 14, 2013, the petitioner has received a pardon from the Utah Board
204 of Pardons and Parole, the petitioner is entitled to an expungement order for all pardoned
205 crimes pursuant to Section 77-27-5.1.
206 (10) An individual convicted of a domestic violence offense may not apply to the
207 bureau as described in Subsection (1) before the day on which the charge no longer may be
208 used for enhancement purposes under Section 77-36-1.1.