1     
JUVENILE EXPUNGEMENT AMENDMENTS

2     
2020 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Todd Weiler

5     
House Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill addresses expungement of a juvenile delinquency record.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     provides that a minor's juvenile delinquency court record may only be disclosed to a
14     law enforcement agency in the state;
15          ▸     creates a process by which a record for a juvenile arrest, investigation, detention, or
16     case dismissal may be expunged;
17          ▸     modifies the circumstances under which an adjudication in a juvenile case may be
18     expunged;
19          ▸     creates an automatic expungement process for certain juvenile records;
20          ▸     requires a state agency to submit an affidavit to the court indicating compliance
21     with a juvenile expungement order;
22          ▸     prohibits a court and a state agency from charging a fee for expunging a juvenile
23     court record;
24          ▸     requires the Administrative Office of the Courts to create forms and certain
25     processes for expungement of a juvenile record;
26          ▸     provides that the process for expungement of a juvenile court record applies
27     retroactively; and
28          ▸     makes technical changes.
29     Money Appropriated in this Bill:
30          None
31     Other Special Clauses:
32          None
33     Utah Code Sections Affected:
34     AMENDS:
35          77-38-14, as last amended by Laws of Utah 2010, Chapter 283
36          78A-6-116, as last amended by Laws of Utah 2010, Chapter 38
37     ENACTS:
38          78A-6-1501, Utah Code Annotated 1953
39          78A-6-1502, Utah Code Annotated 1953
40          78A-6-1503, Utah Code Annotated 1953
41          78A-6-1505, Utah Code Annotated 1953
42          78A-6-1506, Utah Code Annotated 1953
43          78A-6-1507, Utah Code Annotated 1953
44          78A-6-1508, Utah Code Annotated 1953
45          78A-6-1509, Utah Code Annotated 1953
46     RENUMBERS AND AMENDS:
47          78A-6-1504, (Renumbered from 78A-6-1105, as last amended by Laws of Utah 2015,
48     Chapter 389)
49     

50     Be it enacted by the Legislature of the state of Utah:
51          Section 1. Section 77-38-14 is amended to read:
52          77-38-14. Notice of expungement petition -- Victim's right to object.
53          (1) (a) The Department of Corrections or the Juvenile Probation Department shall
54     prepare a document explaining the right of a victim or a victim's representative to object to a
55     petition for expungement under Section 77-40-107 or [78A-6-1105] 78A-6-1504 and the
56     procedures for obtaining notice of [any such] the petition.
57          (b) The department or division shall [also] provide each trial court a copy of the
58     document [which] that has jurisdiction over delinquencies or criminal offenses subject to
59     expungement.
60          (2) The prosecuting attorney in any case leading to a conviction or an adjudication
61     subject to expungement shall provide a copy of the document to each person who would be
62     entitled to notice of a petition for expungement under Sections 77-40-107 and [78A-6-1105]
63     78A-6-1504.
64          Section 2. Section 78A-6-116 is amended to read:
65          78A-6-116. Minor's cases considered civil proceedings -- Adjudication of
66     jurisdiction by juvenile court not conviction of crime -- Exceptions -- Minor not to be
67     charged with crime -- Exception -- Traffic violation cases -- Abstracts to Department of
68     Public Safety.
69          (1) Except as provided in Sections 78A-6-701, 78A-6-702, and 78A-6-703,
70     proceedings in a minor's case shall be regarded as civil proceedings with the court exercising
71     equitable powers.
72          (2) An adjudication by a juvenile court that a minor is within its jurisdiction under
73     Section 78A-6-103 is not considered a conviction of a crime, except in cases involving traffic
74     violations. An adjudication may not operate to impose any civil disabilities upon the minor nor
75     to disqualify the minor for any civil service or military service or appointment.
76          (3) A minor may not be charged with a crime or convicted in any court except as
77     provided in Sections 78A-6-701, 78A-6-702, and 78A-6-703, and in cases involving traffic
78     violations. When a petition has been filed in the juvenile court, the minor may not later be
79     subjected to criminal prosecution based on the same facts except as provided in Section
80     78A-6-702 or 78A-6-703.
81          (4) An adjudication by a juvenile court that a minor is within its jurisdiction under
82     Section 78A-6-103 is considered a conviction for the purposes of determining the level of
83     offense for which a minor may be charged and enhancing the level of an offense in the juvenile
84     court. A prior adjudication may be used to enhance the level or degree of an offense
85     committed by an adult only as otherwise specifically provided.
86          (5) Abstracts of court records for all adjudications of traffic violations shall be
87     submitted to the Department of Public Safety as provided in Section 53-3-218.
88          (6) (a) Except as provided in Subsection (6)(b), a court or state agency with custody of
89     a minor's juvenile court record may not disclose or allow access to the juvenile court record.
90          (b) A record described in Subsection (6)(a) may be disclosed to or accessed by a law
91     enforcement agency in the state.
92          [(6)] (7) Information necessary to collect unpaid fines, fees, assessments, bail, or
93     restitution may be forwarded to employers, financial institutions, law enforcement, constables,
94     the Office of Recovery Services, or other agencies for purposes of enforcing the order as
95     provided in Section 78A-6-117.
96          Section 3. Section 78A-6-1501 is enacted to read:
97     
Part 15. Juvenile Delinquency Expungement Act

98          78A-6-1501. Title.
99          This part is known as the "Juvenile Delinquency Expungement Act."
100          Section 4. Section 78A-6-1502 is enacted to read:
101          78A-6-1502. Definitions.
102          (1) "Agency" means a state, county, or local government entity that generates or
103     maintains records relating to an investigation, arrest, detention, or adjudication for which
104     expungement may be ordered under this part.
105          (2) "Expunge" means to seal or otherwise restrict access to an individual's record held
106     by an agency when the record includes a juvenile delinquency investigation, detention, arrest,
107     or adjudication.
108          Section 5. Section 78A-6-1503 is enacted to read:
109          78A-6-1503. Requirements to apply to expunge records of arrest, investigation,
110     detention, and dismissal.
111          (1) (a) An individual who is arrested, investigated, or detained while the individual is
112     under 18 years old, or has a petition, based on allegations made against the individual when the
113     individual is under 18 years old, dismissed, may petition the court for an order to expunge the
114     individual's juvenile court record and any related records in the custody of an agency, if:
115          (i) the individual has reached 18 years old;
116          (ii) at least 30 days have passed since day of the arrest, investigation, or detention, or
117     the day on which the petition was dismissed;
118          (iii) there are no delinquency proceedings pending against the individual; and
119          (iv) for the case for which expungement of records is being sought, one of the
120     following occurs:
121          (A) charges are screened by the investigating law enforcement agency and the
122     prosecutor makes a final determination that no charges will be filed against the individual;
123          (B) the entire case is dismissed with prejudice;
124          (C) the entire case is dismissed without prejudice or condition and the prosecutor
125     consents in writing to expungement of the record or at least 180 days have passed since the day
126     on which the case is dismissed without prejudice or condition; or
127          (D) the statute of limitations expires on all charges contained in the case.
128          (b) The court may waive the 180-day requirement in Subsection (1)(a)(iv)(C), if the
129     court finds, and states on the record, the reason why the waiver is appropriate.
130          (2) The petitioner shall include in the petition:
131          (a) any agencies known or alleged to have any records related to the offense for which
132     expungement is being sought; and
133          (b) if known, any agency incident number.
134          (3) The petitioner shall send a copy of the petition to the county attorney or, if within a
135     prosecution district, the district attorney.
136          (4) Upon the filing of the petition, the court shall, if the petitioner meets the
137     requirements described in Subsection (1)(a), order the petitioner's records described in
138     Subsection (1)(a), that are under the control of the juvenile court or any other agency or
139     official, including relevant records contained in the Management Information System created in
140     Section 62A-4a-1003 and the Licensing Information System created in Section 62A-4a-1005,
141     be expunged without a hearing.
142          (5) (a) The petitioner is responsible for service of the expungement order issued under
143     Subsection (1)(a) to all affected agencies and officials.
144          (b) To avoid destruction or sealing of the records in whole or in part, the agency or
145     official receiving the expungement order shall only expunge all references to the individual's
146     name in the records pertaining to the individual's arrest, investigation, detention, or case
147     dismissal.
148          Section 6. Section 78A-6-1504, which is renumbered from Section 78A-6-1105 is
149     renumbered and amended to read:
150          [78A-6-1105].      78A-6-1504. Requirements to apply to expunge an
151     adjudication.
152          (1) (a) [A person] An individual who has been adjudicated under this chapter may
153     petition the court for [the expungement of the person's] an order to expunge the individual's
154     juvenile court record and any related records in the custody of [a state] an agency, if:
155          (i) the [person] individual has reached 18 years [of age] old; and
156          (ii) one year has [elapsed from] passed since the date of termination of the continuing
157     jurisdiction of the juvenile court or, if the [person was] individual is committed to a secure
158     youth corrections facility, one year [from] since the date of the [person's] individual's
159     unconditional release from the custody of the Division of Juvenile Justice Services.
160          (b) The court may waive the requirements in Subsection (1)(a), if the court finds, and
161     states on the record, the reason why the waiver is appropriate.
162          (c) The petitioner shall include in the petition:
163          (i) any agencies known or alleged to have any [documents] records related to the
164     offense for which expungement is being sought[.]; and
165          [(d)] (ii) [The petitioner shall include with the petition] the original criminal history
166     report obtained from the Bureau of Criminal Identification in accordance with the provisions of
167     Section 53-10-108.
168          [(e)] (d) The petitioner shall send a copy of the petition to the county attorney or, if
169     within a prosecution district, the district attorney.
170          [(f)] (e) (i) Upon the filing of a petition, the court shall:
171          (A) set a date for a hearing;
172          (B) notify the county attorney or district attorney, and the agency with custody of the
173     records at least 30 days [prior to] before the day on which the hearing of the pendency of the
174     petition is set; and
175          (C) notify the county attorney or district attorney, and the agency with records the
176     petitioner is asking the court to expunge of the date of the hearing.
177          (ii) (A) The court shall provide a victim with the opportunity to request notice of a
178     petition for expungement. [A]
179          (B) Upon the victim's request under Subsection (1)(e)(ii)(A), the victim shall receive
180     notice of a petition for expungement at least 30 days [prior to] before the day on which the
181     hearing is set if, [prior to the entry of] before the day on which an expungement order is made,
182     the victim or, in the case of a child or [a person] an individual who is incapacitated or
183     deceased, the victim's next of kin or authorized representative, submits a written and signed
184     request for notice to the court in the judicial district in which the [crime] offense occurred or
185     judgment [was] is entered.
186          (C) The notice described in Subsection (1)(e)(ii)(B) shall include a copy of the petition
187     and statutes and rules applicable to the petition.
188          (2) (a) At the hearing, the county attorney or district attorney, a victim, and any other
189     [person] individual who may have relevant information about the petitioner may testify.
190          (b) In deciding whether to grant a petition for expungement, the court shall consider
191     whether the rehabilitation of the petitioner has been attained to the satisfaction of the court,
192     taking into consideration the petitioner's response to programs and treatment, the petitioner's
193     behavior subsequent to adjudication, and the nature and seriousness of the conduct.
194          (c) The court may [order sealed] expunge all petitioner's records under the control of
195     the juvenile court and any of petitioner's records under the control of any other agency or
196     official pertaining to the petitioner's adjudicated juvenile court cases, including relevant related
197     records contained in the Management Information System created [by] in Section 62A-4a-1003
198     and the Licensing Information System created [by] in Section 62A-4a-1005, if the court finds
199     that:
200          (i) the petitioner has not, [since the termination of the court's jurisdiction or the
201     petitioner's unconditional release from the Division of Juvenile Justice Services] in the five
202     years preceding the day on which the petition is filed, been convicted of a[:] violent felony, as
203     defined in Section 76-3-203.5;
204          [(A) felony; or]
205          [(B) misdemeanor involving moral turpitude;]
206          (ii) [no proceeding involving a felony or misdemeanor is pending or being instituted]
207     there are no delinquency proceedings pending against the petitioner; and
208          (iii) a judgment for restitution entered by the court on the conviction for which the
209     expungement is sought has been satisfied.
210          (3) (a) The petitioner [shall be] is responsible for service of the [order of] expungement
211     order to all affected [state, county, and local entities,] agencies[,] and officials.
212          (b) To avoid destruction or sealing of the records in whole or in part, the agency or
213     [entity] official receiving the expungement order shall only expunge all references to the
214     petitioner's name in the records pertaining to the petitioner's adjudicated juvenile court cases.
215          [(4) Upon the entry of the order, the proceedings in the petitioner's case shall be
216     considered never to have occurred and the petitioner may properly reply accordingly upon any
217     inquiry in the matter. Inspection of the records may thereafter only be permitted by the court
218     upon petition by the person who is the subject of the records, and only to persons named in the
219     petition.]
220          [(5)] (4) The court may not expunge a juvenile court record if the record contains an
221     adjudication of:
222          (a) Section 76-5-202, aggravated murder; or
223          (b) Section 76-5-203, murder.
224          [(6) (a) A person whose juvenile court record consists solely of nonjudicial
225     adjustments as provided in Section 78A-6-602 may petition the court for expungement of the
226     person's record if the person:]
227          [(i) has reached 18 years of age; and]
228          [(ii) has completed the conditions of the nonjudicial adjustments.]
229          [(b) The court shall, without a hearing, order sealed all petitioner's records under the
230     control of the juvenile court and any of petitioner's records under the control of any other
231     agency or official pertaining to the petitioner's nonjudicial adjustments.]
232          Section 7. Section 78A-6-1505 is enacted to read:
233          78A-6-1505. Automatic expungement.
234          (1) (a) On or after May 1, 2021, the court shall issue, without a petition, an order to
235     expunge an individual's juvenile court record that consists solely of nonjudicial adjustments, as
236     provided in Section 78A-6-602, if:
237          (i) the individual has reached 18 years old; and
238          (ii) any judgement for restitution ordered by the court has been satisfied.
239          (b) Except as provided in Subsection (2), the court shall issue an expungement order
240     under Subsection (1)(a) within 30 days after the day on which the individual turns 18 years old.
241          (2) If an individual who is eligible for expungement under Subsection (1)(a) turns 18
242     years old before May 1, 2021, the court shall order the individual's record be expunged under
243     Subsection (1)(a) within one year after the day on which the court identifies the individual is
244     eligible for expungement under Subsection (1)(a) or before May 1, 2023, whichever is earlier.
245          (3) (a) The court is responsible for service of the expungement order to all affected
246     agencies and officials.
247          (b) To avoid destruction or sealing of the records in whole or in part, the agency or
248     official receiving the expungement order shall only expunge all references to the individual's
249     name in the records pertaining to the individual's nonjudicial adjustments.
250          Section 8. Section 78A-6-1506 is enacted to read:
251          78A-6-1506. Effect of an expunged record -- Agency duties.
252          (1) Upon receipt of an expungement order under this part, an agency shall expunge all
253     records described in the expungement order that are under the control of the agency.
254          (2) (a) Upon the entry of the expungement order the proceedings in the petitioner's case
255     are considered to have never occurred and the petitioner may properly reply accordingly upon
256     an inquiry in the matter.
257          (b) An expunged record may only be inspected upon a petition by the individual who is
258     the subject of the record and only to persons named in the petition.
259          (3) The court shall order an agency named in an expungement order under this part to
260     mail, within a time set by the court, an affidavit to the court verifying the agency has complied
261     with the expungement order.
262          Section 9. Section 78A-6-1507 is enacted to read:
263          78A-6-1507. Fees.
264          Neither the court nor an agency may charge a fee for:
265          (1) an automatic expungement under this part;
266          (2) issuance of an expungement order under this part; or
267          (3) expungement of a record under this part.
268          Section 10. Section 78A-6-1508 is enacted to read:
269          78A-6-1508. Forms -- Notice.
270          The Administrative Office of the Courts shall:
271          (1) implement procedures for processing an expungement under this part;
272          (2) create forms and determine information necessary to be provided to the courts for
273     an expungement under this part; and
274          (3) develop procedures for providing notice to an individual who qualifies for an
275     expungement under this part.
276          Section 11. Section 78A-6-1509 is enacted to read:
277          78A-6-1509. Retroactivity.
278          This part applies retroactively to all arrests, investigations, detentions, dismissals, and
279     adjudications regardless of the date on which the arrests, investigations, detentions, and
280     dismissals were made or adjudications were entered.