Senator Daniel W. Thatcher proposes the following substitute bill:


1     
EXPUNGEMENT ACT AMENDMENTS

2     
2019 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Eric K. Hutchings

5     
Senate Sponsor: Daniel W. Thatcher

6     

7     LONG TITLE
8     General Description:
9          This bill modifies the Utah Expungement Act.
10     Highlighted Provisions:
11          This bill:
12          ▸     allows for automatic expungement or deletion of charges for which an individual is
13     acquitted, charges that are dismissed with prejudice, and certain convictions;
14          ▸     creates processes for automatic expungement and deletion, which includes:
15               •     defining terms;
16               •     requiring identification of cases that may be eligible for automatic expungement
17     or deletion;
18               •     requiring a prosecuting agency to be notified before the record of a case is
19     automatically expunged;
20               •     providing for the Department of Public Safety to make rules to implement
21     procedures for processing an automatic expungement; and
22               •     providing for the Judicial Council to make rules to implement procedures to
23     processing an automatic expungement or deletion;
24          ▸     modifies the circumstances under which the state may petition a court to open an
25     expunged record; and
26          ▸     makes technical changes.
27     Money Appropriated in this Bill:
28          None
29     Other Special Clauses:
30          This bill provides a special effective date.
31     Utah Code Sections Affected:
32     AMENDS:
33          77-40-102, as last amended by Laws of Utah 2017, Chapter 356
34          77-40-103, as last amended by Laws of Utah 2014, Chapter 263
35          77-40-104, as last amended by Laws of Utah 2018, Chapter 266
36          77-40-104.1, as enacted by Laws of Utah 2018, Chapter 278
37          77-40-105, as last amended by Laws of Utah 2018, Chapter 266
38          77-40-107, as last amended by Laws of Utah 2018, Chapter 266
39          77-40-108, as last amended by Laws of Utah 2017, Chapter 356
40          77-40-108.5, as enacted by Laws of Utah 2017, Chapter 447
41          77-40-109, as last amended by Laws of Utah 2017, Chapter 356
42          77-40-110, as last amended by Laws of Utah 2013, Chapter 41
43          77-40-111, as enacted by Laws of Utah 2010, Chapter 283
44     ENACTS:
45          77-40-114, Utah Code Annotated 1953
46          77-40-115, Utah Code Annotated 1953
47          77-40-116, Utah Code Annotated 1953
48     

49     Be it enacted by the Legislature of the state of Utah:
50          Section 1. Section 77-40-102 is amended to read:
51          77-40-102. Definitions.
52          As used in this chapter:
53          (1) "Administrative finding" means a decision upon a question of fact reached by an
54     administrative agency following an administrative hearing or other procedure satisfying the
55     requirements of due process.
56          (2) "Agency" means a state, county, or local government entity that generates or
57     maintains records relating to an investigation, arrest, detention, or conviction for an offense for
58     which expungement may be ordered.
59          (3) "Bureau" means the Bureau of Criminal Identification of the Department of Public
60     Safety established in Section 53-10-201.
61          (4) "Certificate of eligibility" means a document issued by the bureau stating that the
62     criminal record and all records of arrest, investigation, and detention associated with a case that
63     is the subject of a petition for expungement is eligible for expungement.
64          (5) (a) "Clean slate eligible case" means a case:
65          (i) where, except as provided in Subsection (5)(c), each conviction within the case is:
66          (A) a misdemeanor conviction for possession of a controlled substance in violation of
67     Subsection 58-37-8(2)(a)(i);
68          (B) a class B or class C misdemeanor conviction; or
69          (C) an infraction conviction;
70          (ii) that involves an individual:
71          (A) whose total number of convictions in Utah state courts, not including infractions,
72     traffic offenses, or minor regulatory offenses, does not exceed the limits described in
73     Subsections 77-40-105(5) and (6) without taking into consideration the exception in Subsection
74     77-40-105(8); and
75          (B) against whom no criminal proceedings are pending in the state; and
76          (iii) for which the following time periods have elapsed from the day on which the case
77     is adjudicated:
78          (A) at least five years for a class C misdemeanor or an infraction;
79          (B) at least six years for a class B misdemeanor; and
80          (C) at least seven years for a class A conviction for possession of a controlled
81     substance in violation of Subsection 58-37-8(2)(a)(i).
82          (b) "Clean slate eligible case" includes a case that is dismissed as a result of a
83     successful completion of a plea in abeyance agreement governed by Subsection 77-2a-3(2)(b)
84     if:
85          (i) except as provided in Subsection (5)(c), each charge within the case is:
86          (A) a misdemeanor for possession of a controlled substance in violation of Subsection
87     58-37-8(2)(a)(i);
88          (B) a class B or class C misdemeanor; or
89          (C) an infraction;
90          (ii) the individual involved meets the requirements of Subsection (5)(a)(ii); and
91          (iii) the time periods described in Subsections (5)(a)(iii)(A) through (C) have elapsed
92     from the day on which the case is dismissed.
93          (c) "Clean slate eligible case" does not include a case:
94          (i) where the individual is found not guilty by reason of insanity;
95          (ii) where the case establishes a criminal judgment accounts receivable, as defined in
96     Section 77-32a-101, that:
97          (A) has been entered as a civil judgment and transferred to the Office of State Debt
98     Collection; or
99          (B) has not been satisfied according to court records;
100          (iii) that resulted in one or more pleas held in abeyance or convictions for the following
101     offenses:
102          (A) any of the offenses listed in Subsection 77-40-105(2)(a);
103          (B) an offense against the person in violation of Title 76, Chapter 5, Offenses Against
104     the Person;
105          (C) a weapons offense in violation of Title 76, Chapter 10, Part 5, Weapons;
106          (D) sexual battery in violation of Section 76-9-702.1;
107          (E) an act of lewdness in violation of Section 76-9-702 or 76-9-702.5;
108          (F) an offense in violation of Title 41, Chapter 6a, Part 5, Driving Under the Influence
109     and Reckless Driving;
110          (G) damage to or interruption of a communication device in violation of Section
111     76-6-108;
112          (H) a domestic violence offense as defined in Section 77-36-1; or
113          (I) any other offense classified in the Utah Code as a felony or a class A misdemeanor
114     other than a class A misdemeanor conviction for possession of a controlled substance in
115     violation of Subsection 58-37-8(2)(a)(i).
116          [(5)] (6) "Conviction" means judgment by a criminal court on a verdict or finding of
117     guilty after trial, a plea of guilty, or a plea of nolo contendere.
118          [(6)] (7) "Department" means the Department of Public Safety established in Section
119     53-1-103.
120          [(7)] (8) "Drug possession offense" means an offense under:
121          (a) Subsection 58-37-8(2), except any offense under Subsection 58-37-8(2)(b)(i),
122     possession of 100 pounds or more of marijuana, any offense enhanced under Subsection
123     58-37-8(2)(e), violation in a correctional facility or Subsection 58-37-8(2)(g), driving with a
124     controlled substance illegally in the person's body and negligently causing serious bodily injury
125     or death of another;
126          (b) Subsection 58-37a-5(1), use or possession of drug paraphernalia;
127          (c) Section 58-37b-6, possession or use of an imitation controlled substance; or
128          (d) any local ordinance which is substantially similar to any of the offenses described
129     in this Subsection [(7)] (8).
130          [(8)] (9) "Expunge" means to seal or otherwise restrict access to the [petitioner's]
131     individual's record held by an agency when the record includes a criminal investigation,
132     detention, arrest, or conviction.
133          [(9)] (10) "Jurisdiction" means a state, district, province, political subdivision, territory,
134     or possession of the United States or any foreign country.
135          [(10)] (11) "Minor regulatory offense" means any class B or C misdemeanor offense,
136     [as well as] and any local ordinance, except:
137          (a) any drug possession offense;
138          (b) Title 41, Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving;
139          (c) Sections 73-18-13 through 73-18-13.6;
140          (d) those offenses defined in Title 76, Utah Criminal Code; or
141          (e) any local ordinance that is substantially similar to those offenses listed in
142     Subsections [(10)] (11)(a) through (d).
143          [(11)] (12) "Petitioner" means [a person seeking] an individual applying for
144     expungement under this chapter.
145          [(12)] (13) (a) "Traffic offense" means:
146          (i) all infractions, class B misdemeanors, and class C misdemeanors in Title 41,
147     Chapter 6a, Traffic Code;
148          (ii) Title 53, Chapter 3, Part 2, Driver Licensing Act;
149          (iii) Title 73, Chapter 18, State Boating Act; and
150          (iv) all local ordinances that are substantially similar to those offenses.
151          (b) "Traffic offense" does not mean:
152          (i) Title 41, Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving;
153          (ii) Sections 73-18-13 through 73-18-13.6; or
154          (iii) any local ordinance that is substantially similar to the offenses listed in
155     Subsections [(12)] (13)(b)(i) and (ii).
156          Section 2. Section 77-40-103 is amended to read:
157          77-40-103. Petition for expungement procedure overview.
158          The process for a petition for the expungement of records under this chapter regarding
159     the arrest, investigation, detention, and conviction of a petitioner is as follows:
160          (1) The petitioner shall apply to the bureau for a certificate of eligibility for
161     expungement and pay the application fee established by the department.
162          (2) Once the eligibility process is complete, the bureau shall notify the petitioner.
163          (3) If the petitioner is qualified to receive a certificate of eligibility for expungement,
164     the petitioner shall pay the issuance fee established by the department.
165          (4) (a) The petitioner shall file the certificate of eligibility with a petition for
166     expungement in the court in which the proceedings occurred.
167          (b) If there were no court proceedings, or the court no longer exists, the petitioner may
168     file the petition [may be filed] in the district court where the arrest occurred.
169          (c) If a [certificate is filed] petitioner files a certificate of eligibility electronically, the
170     petitioner or the petitioner's attorney shall keep the original certificate until the proceedings are
171     concluded. [If the original certificate is filed]
172          (d) If the petitioner files the original certificate of eligibility with the petition, the clerk
173     or the court shall scan [it] and return [it] the original certificate to the petitioner or the
174     petitioner's attorney, who shall keep [it] the original certificate until the proceedings are
175     concluded.
176          (5) (a) The petitioner shall deliver a copy of the petition and certificate of eligibility to
177     the prosecutorial office that handled the court proceedings.
178          (b) If there were no court proceedings, the petitioner shall deliver the copy of the
179     petition and certificate [shall be delivered] to the county attorney's office in the jurisdiction
180     where the arrest occurred.
181          [(6) If an objection to the petition is filed by the prosecutor or victim, a hearing shall be
182     set by the court and the prosecutor and victim notified of the date.]
183          (6) If the prosecutor or the victim files an objection to the petition, the court shall set a
184     hearing and notify the prosecutor and the victim of the date set for the hearing.
185          (7) If the court requests a response from Adult Probation and Parole and a response is
186     received, the petitioner may file a written reply to the response within 15 days of receipt of the
187     response.
188          (8) [An expungement may be granted] A court may grant an expungement without a
189     hearing if no objection is received.
190          (9) Upon receipt of an order of expungement, the petitioner shall deliver copies to all
191     government agencies in possession of records relating to the expunged matter.
192          Section 3. Section 77-40-104 is amended to read:
193          77-40-104. Requirements to apply for certificate of eligibility to expunge records
194     of arrest, investigation, and detention.
195          [(1) A person] An individual who is arrested or formally charged with an offense may
196     apply to the bureau for a certificate of eligibility to expunge the records of arrest, investigation,
197     and detention that may have been made in the case, subject to the following conditions:
198          [(a)] (1) at least 30 days have passed since the day of the arrest for which a certificate
199     of eligibility is sought;
200          [(b)] (2) there are no criminal proceedings pending against the [petitioner] individual;
201     and
202          [(c)] (3) one of the following occurs:
203          [(i)] (a) charges are screened by the investigating law enforcement agency and the
204     prosecutor makes a final determination that no charges will be filed in the case;
205          [(ii)] (b) the entire case is dismissed with prejudice;
206          [(iii)] (c) the entire case is dismissed without prejudice or without condition and:
207          [(A)] (i) the prosecutor consents in writing to the issuance of a certificate of eligibility;
208     or
209          [(B)] (ii) at least 180 days have passed since the day on which the case is dismissed;
210          [(iv) the person]
211          (d) the individual is acquitted at trial on all of the charges contained in the case; or
212          [(v)] (e) the statute of limitations expires on all of the charges contained in the case.
213          [(2) Notwithstanding Subsection (1)(a), the bureau shall issue a certificate of eligibility
214     on an expedited basis to a petitioner seeking expungement under Subsection (1)(c)(iv).]
215          Section 4. Section 77-40-104.1 is amended to read:
216          77-40-104.1. Eligibility for removing the link between personal identifying
217     information and court case dismissed.
218          (1) As used in this section:
219          (a) "Domestic violence offense" means the same as that term is defined in Section
220     77-36-1.
221          (b) "Personal identifying information" means:
222          (i) a current name, former name, nickname, or alias; and
223          (ii) date of birth.
224          (2) [A person] An individual whose criminal case is dismissed may move the court for
225     an order to remove the link between the [person's] individual's personal identifying information
226     from the dismissed case in any publicly searchable database of the Utah state courts and the
227     court shall grant that relief if:
228          (a) 30 days have passed from the day on which the case is dismissed;
229          (b) no appeal is filed for the dismissed case within the 30-day period described in
230     Subsection (2)(a); and
231          (c) no charge in the case was a domestic violence offense.
232          (3) Removing the link to personal identifying information of a court record under
233     Subsection (2) does not affect a prosecuting, arresting, or other agency's records.
234          (4) A case history, unless expunged under this chapter, remains public and accessible
235     through a search by case number.
236          Section 5. Section 77-40-105 is amended to read:
237          77-40-105. Requirements to apply for a certificate of eligibility to expunge
238     conviction.
239          (1) [A person] An individual convicted of an offense may apply to the bureau for a
240     certificate of eligibility to expunge the record of conviction as provided in this section.
241          (2) [A petitioner] An individual is not eligible to receive a certificate of eligibility from
242     the bureau if:
243          (a) the conviction for which expungement is sought is:
244          (i) a capital felony;
245          (ii) a first degree felony;
246          (iii) a violent felony as defined in Subsection 76-3-203.5(1)(c)(i);
247          (iv) felony automobile homicide;
248          (v) a felony violation of Subsection 41-6a-501(2);
249          (vi) a registerable sex offense as defined in Subsection 77-41-102(17); or
250          (vii) a registerable child abuse offense as defined in Subsection 77-43-102(2);
251          (b) a criminal proceeding is pending against the petitioner; or
252          (c) the petitioner intentionally or knowingly provides false or misleading information
253     on the application for a certificate of eligibility.
254          (3) A petitioner seeking to obtain expungement for a record of conviction is not
255     eligible to receive a certificate of eligibility from the bureau until all of the following have
256     occurred:
257          (a) the petitioner has paid in full all fines and interest ordered by the court related to the
258     conviction for which expungement is sought [have been paid in full];
259          (b) the petitioner has paid in full all restitution ordered by the court pursuant to Section
260     77-38a-302, or by the Board of Pardons and Parole pursuant to Section 77-27-6[, has been paid
261     in full]; and
262          (c) the following time periods have elapsed from the date the petitioner was convicted
263     or released from incarceration, parole, or probation, whichever occurred last, for each
264     conviction the petitioner seeks to expunge:
265          (i) 10 years in the case of a misdemeanor conviction of Subsection 41-6a-501(2) or a
266     felony conviction of Subsection 58-37-8(2)(g);
267          (ii) seven years in the case of a felony;
268          (iii) five years in the case of any class A misdemeanor or a felony drug possession
269     offense;
270          (iv) four years in the case of a class B misdemeanor; or
271          (v) three years in the case of any other misdemeanor or infraction.
272          (4) The bureau may not count pending or previous infractions, traffic offenses, or
273     minor regulatory offenses, or fines or fees arising from the infractions, traffic offenses, or
274     minor regulatory offenses, when determining expungement eligibility.
275          (5) The bureau may not issue a certificate of eligibility if, at the time the petitioner
276     seeks a certificate of eligibility, the bureau determines that the petitioner's criminal history,
277     including previously expunged convictions, contains any of the following, except as provided
278     in Subsection (8):
279          (a) two or more felony convictions other than for drug possession offenses, each of
280     which is contained in a separate criminal episode;
281          (b) any combination of three or more convictions other than for drug possession
282     offenses that include two class A misdemeanor convictions, each of which is contained in a
283     separate criminal episode;
284          (c) any combination of four or more convictions other than for drug possession
285     offenses that include three class B misdemeanor convictions, each of which is contained in a
286     separate criminal episode; or
287          (d) five or more convictions other than for drug possession offenses of any degree
288     whether misdemeanor or felony, each of which is contained in a separate criminal episode.
289          (6) The bureau may not issue a certificate of eligibility if, at the time the petitioner
290     seeks a certificate of eligibility, the bureau determines that the petitioner's criminal history,
291     including previously expunged convictions, contains any of the following:
292          (a) three or more felony convictions for drug possession offenses, each of which is
293     contained in a separate criminal episode; or
294          (b) any combination of five or more convictions for drug possession offenses, each of
295     which is contained in a separate criminal episode.
296          (7) If the petitioner's criminal history contains convictions for both a drug possession
297     offense and a non drug possession offense arising from the same criminal episode, that criminal
298     episode shall be counted as provided in Subsection (5) if any non drug possession offense in
299     that episode:
300          (a) is a felony or class A misdemeanor; or
301          (b) has the same or a longer waiting period under Subsection (3) than any drug
302     possession offense in that episode.
303          (8) If at least 10 years have elapsed from the date the petitioner was convicted or
304     released from incarceration, parole, or probation, whichever occurred last, for all convictions,
305     then each eligibility limit defined in Subsection (5) shall be increased by one.
306          (9) If, prior to May 14, 2013, the petitioner has received a pardon from the Utah Board
307     of Pardons and Parole, the petitioner is entitled to an expungement order for all pardoned
308     crimes pursuant to Section 77-27-5.1.
309          Section 6. Section 77-40-107 is amended to read:
310          77-40-107. Petition for expungement -- Prosecutorial responsibility -- Hearing --
311     Standard of proof -- Exception.
312          (1) (a) The petitioner shall file a petition for expungement and the certificate of
313     eligibility in the court specified in Section 77-40-103 and deliver a copy of the petition and
314     certificate to the prosecuting agency.[ If the certificate is filed]
315          (b) If the petitioner files the certificate of eligibility electronically, the petitioner or the
316     petitioner's attorney shall keep the original certificate until the proceedings are concluded.[ If
317     the original certificate is filed]
318          (c) If the petitioner files the original certificate of eligibility with the petition, the clerk
319     of the court shall scan [it] and return [it] the original certificate to the petitioner or the
320     petitioner's attorney, who shall keep [it] the original certificate until the proceedings are
321     concluded.
322          (2) (a) Upon receipt of a petition for expungement of a conviction, the prosecuting
323     attorney shall provide notice of the expungement request by first-class mail to the victim at the
324     most recent address of record on file.
325          (b) The notice shall:
326          (i) include a copy of the petition, certificate of eligibility, statutes, and rules applicable
327     to the petition;
328          (ii) state that the victim has a right to object to the expungement; and
329          (iii) provide instructions for registering an objection with the court.
330          (3) The prosecuting attorney and the victim, if applicable, may respond to the petition
331     by filing a recommendation or objection with the court within 35 days after receipt of the
332     petition.
333          (4) (a) The court may request a written response to the petition from the Division of
334     Adult Probation and Parole within the Department of Corrections.
335          (b) If requested, the response prepared by the Division of Adult Probation and Parole
336     shall include:
337          (i) the reasons probation was terminated; and
338          (ii) certification that the petitioner has completed all requirements of sentencing and
339     probation or parole.
340          (c) The Division of Adult Probation and Parole shall provide a copy of the response to
341     the petitioner and the prosecuting attorney.
342          (5) The petitioner may respond in writing to any objections filed by the prosecutor or
343     the victim and the response prepared by the Division of Adult Probation and Parole within 14
344     days after receipt.
345          (6) (a) (i) If the court receives an objection concerning the petition from any party, the
346     court shall set a date for a hearing and notify the petitioner and the prosecuting attorney of the
347     date set for the hearing.
348          (ii) The prosecuting attorney shall notify the victim of the date set for the hearing.
349          (b) The petitioner, the prosecuting attorney, the victim, and any other [person]
350     individual who has relevant information about the petitioner may testify at the hearing.
351          (c) The court shall review the petition, the certificate of eligibility, and any written
352     responses submitted regarding the petition.
353          (7) If no objection is received within 60 days from the date the petition for
354     expungement is filed with the court, the expungement may be granted without a hearing.
355          (8) The court shall issue an order of expungement if the court finds by clear and
356     convincing evidence that:
357          (a) the petition and certificate of eligibility are sufficient;
358          (b) the statutory requirements have been met;
359          (c) if the petitioner seeks expungement after a case is dismissed without prejudice or
360     without condition, the prosecutor provided written consent and has not filed and does not
361     intend to refile related charges;
362          (d) if the petitioner seeks expungement of drug possession offenses allowed under
363     Subsection 77-40-105(6), the petitioner is not illegally using controlled substances and is
364     successfully managing any substance addiction; and
365          (e) it is not contrary to the interests of the public to grant the expungement.
366          (9) (a) If the court denies a petition described in Subsection (8)(c) because the
367     prosecutor intends to refile charges, the [person] individual seeking expungement may again
368     apply for a certificate of eligibility if charges are not refiled within 180 days of the day on
369     which the court denies the petition.
370          (b) A prosecutor who opposes an expungement of a case dismissed without prejudice
371     or without condition shall have a good faith basis for the intention to refile the case.
372          (c) A court shall consider the number of times that good faith basis of intention to
373     refile by the prosecutor is presented to the court in making the court's determination to grant
374     the petition for expungement described in Subsection (8)(c).
375          (10) A court may not expunge a conviction of an offense for which a certificate of
376     eligibility may not be or should not have been issued under Section 77-40-104 or 77-40-105.
377          Section 7. Section 77-40-108 is amended to read:
378          77-40-108. Distribution of order -- Redaction -- Receipt of order -- Bureau
379     requirements -- Administrative proceedings.
380          (1) (a) [ A person] (i) An individual who receives an order of expungement under [this
381     chapter] Section 77-40-107 or Section 77-27-5.1 shall be responsible for delivering a copy of
382     the order of expungement to all affected criminal justice agencies and officials including the
383     court, arresting agency, booking agency, prosecuting agency, Department of Corrections, and
384     the bureau.
385          (ii) The provisions of Subsection (1)(a)(i) do not apply to an individual who receives
386     an automatic expungement under Section 77-40-114.
387          (b) [A person] An individual who receives an order of expungement under Section
388     77-27-5.1, shall pay a processing fee to the bureau, established in accordance with the process
389     in Section 63J-1-504, before the bureau's record may be expunged.
390          (2) Unless otherwise provided by law or ordered by a court of competent jurisdiction to
391     respond differently, [a person] an individual who has received an expungement of an arrest or
392     conviction under this chapter or Section 77-27-5.1[,] may respond to any inquiry as though the
393     arrest or conviction did not occur.
394          (3) The bureau shall forward a copy of the expungement order to the Federal Bureau of
395     Investigation.
396          (4) An agency receiving an expungement order shall expunge the [petitioner's]
397     individual's identifying information contained in records in [its] the agency's possession
398     relating to the incident for which expungement is ordered.
399          (5) Unless ordered by a court to do so, or in accordance with Subsection 77-40-109(2),
400     a government agency or official may not divulge information or records [which] that have been
401     expunged [regarding the petitioner contained in a record of arrest, investigation, detention, or
402     conviction after receiving an expungement order].
403          (6) (a) An order of expungement may not restrict an agency's use or dissemination of
404     records in [its] the agency's ordinary course of business until the agency has received a copy of
405     the order.
406          (b) Any action taken by an agency after issuance of the order but prior to the agency's
407     receipt of a copy of the order may not be invalidated by the order.
408          (7) An order of expungement may not:
409          (a) terminate or invalidate any pending administrative proceedings or actions of which
410     the [petitioner] individual had notice according to the records of the administrative body prior
411     to issuance of the expungement order;
412          (b) affect the enforcement of any order or findings issued by an administrative body
413     pursuant to [its] the administrative body's lawful authority prior to issuance of the
414     expungement order;
415          (c) remove any evidence relating to the [petitioner] individual including records of
416     arrest, which the administrative body has used or may use in these proceedings; or
417          (d) prevent an agency from maintaining, sharing, or distributing any record required by
418     law.
419          Section 8. Section 77-40-108.5 is amended to read:
420          77-40-108.5. Distribution for order for vacatur.
421          (1) [A person] An individual who receives an order for vacatur under Subsection
422     78B-9-108(2) shall be responsible for delivering a copy of the order for vacatur to all affected
423     criminal justice agencies and officials including the court, arresting agency, booking agency,
424     prosecuting agency, Department of Corrections, and the bureau.
425          (2) [In order to] To complete delivery of the order for vacatur to the bureau, the
426     [petitioner] individual shall complete and attach to the order for vacatur an application for a
427     certificate of eligibility for expungement, including identifying information and fingerprints, as
428     provided in Subsection 77-40-103(1).
429          (3) The bureau shall treat the order for vacatur and attached certificate of eligibility for
430     expungement the same as a valid order for expungement under Section 77-40-108, except as
431     provided in this section.
432          (4) Unless otherwise provided by law or ordered by a court of competent jurisdiction to
433     respond differently, [a person] an individual who has received a vacatur of conviction under
434     Section 78B-9-108(2)[,] may respond to any inquiry as though the conviction did not occur.
435          (5) The bureau shall forward a copy of the order for vacatur to the Federal Bureau of
436     Investigation.
437          (6) An agency receiving an order for vacatur shall expunge the [petitioner's]
438     individual's identifying information contained in records in the agency's possession relating to
439     the incident for which vacatur is ordered.
440          (7) A government agency or official may not divulge information contained in a record
441     of arrest, investigation, detention, or conviction after receiving an order for vacatur to any
442     person or agency, except for:
443          (a) the [petitioner] individual for whom vacatur was ordered; or
444          (b) Peace Officer Standards and Training, pursuant to Section 53-6-203 and Subsection
445     77-40-109(2)(b)(ii).
446          (8) The bureau may not count vacated convictions against any future expungement
447     eligibility.
448          Section 9. Section 77-40-109 is amended to read:
449          77-40-109. Retention and release of expunged records -- Agencies.
450          (1) The bureau shall keep, index, and maintain all expunged records of arrests and
451     convictions.
452          (2) (a) Employees of the bureau may not divulge any information contained in [its] the
453     bureau's index to any person or agency without a court order unless specifically authorized by
454     statute.
455          (b) The following organizations may receive information contained in expunged
456     records upon specific request:
457          (i) the Board of Pardons and Parole;
458          (ii) Peace Officer Standards and Training;
459          (iii) federal authorities, only as required by federal law;
460          (iv) the Department of Commerce;
461          (v) the Department of Insurance;
462          (vi) the State Board of Education; and
463          (vii) the Commission on Criminal and Juvenile Justice, for purposes of investigating
464     applicants for judicial office.
465          (c) A person or agency authorized by this Subsection (2) to view expunged records
466     may not reveal or release any information obtained from the expunged records to anyone
467     outside the [court order or] specific request, except as directed by a court order, including
468     distribution on a public website.
469          (3) The bureau may also use the information in [its] the bureau's index as provided in
470     Section 53-5-704.
471          (4) If, after obtaining an expungement, [the petitioner] an individual is charged with a
472     felony or an offense eligible for enhancement based on a prior conviction, the state may
473     petition the court to open the expunged records upon a showing of good cause.
474          (5) (a) For judicial sentencing, a court may order any records expunged under this
475     chapter or Section 77-27-5.1 to be opened and admitted into evidence.
476          (b) The records are confidential and are available for inspection only by the court,
477     parties, counsel for the parties, and any other person who is authorized by the court to inspect
478     them.
479          (c) At the end of the action or proceeding, the court shall order the records expunged
480     again.
481          (d) Any person authorized by this Subsection (5) to view expunged records may not
482     reveal or release any information obtained from the expunged records to anyone outside the
483     court.
484          (6) Records released under this chapter are classified as protected under Section
485     63G-2-305 and are accessible only as provided under Title 63G, Chapter 2, Part 2, Access to
486     Records.
487          Section 10. Section 77-40-110 is amended to read:
488          77-40-110. Use of expunged records -- Individuals -- Use in civil actions.
489          Records expunged under this chapter or Section 77-27-5.1 may be released to or viewed
490     by the following individuals:
491          (1) the petitioner or an individual who receives an automatic expungement under
492     Section 77-40-114;
493          (2) a law enforcement officer who was involved in the case, for use solely in the
494     officer's defense of a civil action arising out of the officer's involvement with the petitioner in
495     that particular case; and
496          (3) parties to a civil action arising out of the expunged incident, providing the
497     information is kept confidential and utilized only in the action.
498          Section 11. Section 77-40-111 is amended to read:
499          77-40-111. Rulemaking.
500          [The] In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,
501     the department may make rules to:
502          (1) implement procedures for processing an automatic expungement;
503          [(1)] (2) implement procedures for applying for certificates of eligibility;
504          [(2)] (3) specify procedures for receiving a certificate of eligibility; and
505          [(3)] (4) create forms and determine information necessary to be provided to the
506     bureau.
507          Section 12. Section 77-40-114 is enacted to read:
508          77-40-114. Automatic expungement procedure.
509          (1) (a) Except as provided in Subsection (1)(b) and subject to Section 77-40-116, this
510     section governs the process for the automatic expungement of all records in:
511          (i) a case that resulted in an acquittal on all charges;
512          (ii) except as provided in Subsection (3)(d), a case that is dismissed with prejudice; or
513          (iii) a case that is a clean slate eligible case.
514          (b) This section does not govern automatic expungement of a traffic offense.
515          (2) (a) The process for automatic expungement of records for a case that resulted in an
516     acquittal is as described in Subsections (2)(b) through (c).
517          (b) If a court determines that the requirements for automatic expungement have been
518     met, a district court or justice court shall:
519          (i) issue, without a petition, an expungement order; and
520          (ii) based on information available, notify the bureau and the prosecuting agency
521     identified in the case of the order of expungement.
522          (c) The bureau, upon receiving notice from the court, shall notify the law enforcement
523     agencies identified in the case of the order of expungement.
524          (3) (a) The process for an automatic expungement of a case that is dismissed with
525     prejudice is as described in Subsections (3)(b) through (c).
526          (b) If a court determines that the requirements for automatic expungement have been
527     met, a district court or justice court shall:
528          (i) issue, without a petition, an expungement order; and
529          (ii) based on information available, notify the bureau and the prosecuting agency
530     identified in the case of the order of expungement.
531          (c) The bureau, upon receiving notice from the court, shall notify the law enforcement
532     agencies identified in the case of the order of expungement.
533          (d) For purposes of this Subsection (3), a case that is dismissed with prejudice does not
534     include a case that is dismissed with prejudice as a result of successful completion of a plea in
535     abeyance agreement governed by Subsection 77-2a-3(2)(b).
536          (4) (a) The process for the automatic expungement of a clean slate eligible case is as
537     described in Subsections (4)(b) through (f) and in accordance with any rules made by the
538     Judicial Council as described in Subsection (4)(g).
539          (b) A prosecuting agency shall receive notice on a monthly basis for any case
540     prosecuted by that agency that appears to be a clean slate eligible case.
541          (c) Within 35 days of the day on which the notice described in Subsection (4)(b) is
542     sent, the prosecuting agency shall provide written notice in accordance with any rules made by
543     the Judicial Council if the prosecuting agency objects to an automatic expungement for any of
544     the following reasons:
545          (i) after reviewing the agency record, the prosecuting agency believes that the case does
546     not meet the definition of a clean slate eligible case;
547          (ii) the individual has not paid court-ordered restitution to the victim; or
548          (iii) the prosecuting agency has a reasonable belief, grounded in supporting facts, that
549     an individual with a clean slate eligible case is continuing to engage in criminal activity within
550     or outside of the state.
551          (d) (i) If a prosecuting agency provides written notice of an objection for a reason
552     described in Subsection (4)(c) within 35 days of the day on which the notice described in
553     Subsection (4)(b) is sent, the court may not proceed with automatic expungement.
554          (ii) If 35 days pass from the day on which the notice described in Subsection (4)(b) is
555     sent without the prosecuting agency providing written notice of an objection for a reason
556     described in Subsection (4)(c), the court may proceed with automatic expungement.
557          (e) If a court determines that the requirements for automatic expungement have been
558     met, a district court or justice court shall:
559          (i) issue, without a petition, an expungement order; and
560          (ii) based on information available, notify the bureau and the prosecuting agency
561     identified in the case of the order of expungement.
562          (f) The bureau, upon receiving notice from the court, shall notify the law enforcement
563     agencies identified in the case of the order of expungement.
564          (g) The Judicial Council shall make rules to govern the process for automatic
565     expungement of records for a clean slate eligible case in accordance with this Subsection (4).
566          (5) Nothing in this section precludes an individual from filing a petition for
567     expungement of records that are eligible for automatic expungement under this section if an
568     automatic expungement has not occurred pursuant to this section.
569          (6) An automatic expungement performed under this section does not preclude a
570     person from requesting access to expunged records in accordance with Section 77-40-109 or
571     77-40-110.
572          Section 13. Section 77-40-115 is enacted to read:
573          77-40-115. Automatic deletion for traffic offense.
574          (1) Subject to Section 77-40-116, records for the following traffic offenses shall be
575     deleted without a court order or notice to the prosecuting agency:
576          (a) a traffic offense case that resulted in an acquittal on all charges;
577          (b) a traffic offense case that is dismissed with prejudice, other than a case that is
578     dismissed with prejudice as a result of successful completion of a plea in abeyance agreement
579     governed by Subsection 77-2a-3(2)(b); or
580          (c) a traffic offense case that is a clean slate eligible case, as that term is defined in
581     Section 77-40-102.
582          (2) The Judicial Council shall make rules to provide an ongoing process for identifying
583     and deleting records on all traffic offenses described in Subsection (1).
584          Section 14. Section 77-40-116 is enacted to read:
585          77-40-116. Time periods for expungement or deletion -- Identification and
586     processing of clean slate eligible cases.
587          (1) Reasonable efforts within available funding shall be made to expunge or delete a
588     case as quickly as is practicable with the goal of:
589          (a) for cases adjudicated on or after May 1, 2020:
590          (i) expunging a case that resulted in an acquittal on all charges, 60 days after the
591     acquittal;
592          (ii) expunging a case that resulted in a dismissal with prejudice, other than a case that
593     is dismissed with prejudice as a result of successful completion of a plea in abeyance
594     agreement governed by Subsection 77-2a-3(2)(b), 180 days after:
595          (A) for a case in which no appeal was filed, the day on which the entire case against the
596     individual is dismissed with prejudice; or
597          (B) for a case in which an appeal was filed, the day on which a court issues a final
598     unappealable order;
599          (iii) expunging a clean slate eligible case that is not a traffic offense within 30 days of
600     the court, in accordance with Section 77-4-114, determining that the requirements for
601     expungement have been satisfied; or
602          (iv) deleting a clean slate eligible case that is a traffic offense upon identification; and
603          (b) for cases adjudicated before May 1, 2020, expunging or deleting a case within one
604     year of the day on which the case is identified as eligible for automatic expungement or
605     deletion.
606          (2) (a) The Judicial Council shall make rules governing the identification and
607     processing of clean slate eligible cases in accordance with Sections 77-40-114 and 77-40-115.
608          (b) Reasonable efforts shall be made to identify and process all clean slate eligible
609     cases in accordance with Sections 77-40-114 and 77-40-115.
610          (c) An individual does not have a cause of action for damages as a result of the failure
611     to identify an individual's case as a clean slate eligible case or to automatically expunge or
612     delete the records of a clean slate eligible case.
613          Section 15. Effective date.
614          This bill takes effect on May 1, 2020.
615