This document includes Senate Committee Amendments incorporated into the bill on Mon, Mar 1, 2021 at 9:18 AM by lpoole.
Senator Todd D. Weiler proposes the following substitute bill:


1     
EXPUNGEMENT AMENDMENTS

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Todd D. Weiler

5     
House Sponsor: Craig Hall

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions related to expungement.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines and amends terms;
13          ▸     addresses the service of a petition for expungement and a certificate of eligibility
14     when the prosecuting agency is a city attorney's office;
15          ▸     amends the requirements for expunging records of an arrest, investigation, and
16     detention;
17          ▸     prohibits the Bureau of Criminal Identification from issuing a certificate of
18     eligibility for an arrest, investigation, and detention if the law enforcement agency
19     case number is associated with a law enforcement agency case number for an arrest,
20     investigation, and detention, or a conviction, that is not eligible for expungement;
21          ▸     allows an individual to move the court to delink the individual's personal identifying
22     information from a court case under Title 78B, Chapter 7, Protective Orders and
23     Stalking Injunctions, that has been denied;
24          ▸     amends the requirements for expunging records of a conviction;
25          ▸     prohibits the Bureau of Criminal Identification from issuing a certificate of
26     eligibility for a conviction if the law enforcement agency case number is associated with a law
27     enforcement agency case number for an arrest, investigation, and detention, or a conviction,
28     that is not eligible for expungement;
29          ▸     requires a copy of a petition to be served to the prosecutor in accordance with the
30     Utah Rules of Civil Procedure;
31          ▸     requires the prosecutor to make a reasonable effort to provide notice to a victim if a
32     prosecuting attorney receives a petition for expungement of a conviction or a charge
33     dismissed by a plea in abeyance;
34          ▸     requires the Bureau of Criminal Identification to notify an agency of an order of
35     expungement;
36          ▸     allows an agency to respond to a request about an arrest or conviction that is
37     expunged as if the arrest or conviction did not happen; and
38          ▸     makes technical and conforming changes.
39     Money Appropriated in this Bill:
40          None
41     Other Special Clauses:
42          None
43     Utah Code Sections Affected:
44     AMENDS:
45          77-40-102, as last amended by Laws of Utah 2020, Chapter 354
46          77-40-103, as last amended by Laws of Utah 2020, Chapters 12, 12, and 218
47          77-40-104, as last amended by Laws of Utah 2019, Chapter 448
48          77-40-104.1, as last amended by Laws of Utah 2019, Chapter 448
49          77-40-105, as last amended by Laws of Utah 2020, Chapters 177 and 218
50          77-40-107, as last amended by Laws of Utah 2020, Chapters 12, 12, and 54
51          77-40-108, as last amended by Laws of Utah 2019, Chapter 448
52     

53     Be it enacted by the Legislature of the state of Utah:
54          Section 1. Section 77-40-102 is amended to read:
55          77-40-102. Definitions.
56          As used in this chapter:
57          (1) "Administrative finding" means a decision upon a question of fact reached by an
58     administrative agency following an administrative hearing or other procedure satisfying the
59     requirements of due process.
60          (2) "Agency" means a state, county, or local government entity that generates or
61     maintains records relating to an investigation, arrest, detention, or conviction for an offense for
62     which expungement may be ordered.
63          (3) "Bureau" means the Bureau of Criminal Identification of the Department of Public
64     Safety established in Section 53-10-201.
65          (4) "Certificate of eligibility" means a document issued by the bureau stating that the
66     criminal record and all records of arrest, investigation, and detention associated with a case that
67     is the subject of a petition for expungement is eligible for expungement.
68          (5) (a) "Clean slate eligible case" means a case:
69          (i) where, except as provided in Subsection (5)(c), each conviction within the case is:
70          (A) a misdemeanor conviction for possession of a controlled substance in violation of
71     Subsection 58-37-8(2)(a)(i);
72          (B) a class B or class C misdemeanor conviction; or
73          (C) an infraction conviction;
74          (ii) that involves an individual:
75          (A) whose total number of convictions in Utah state courts, not including infractions,
76     traffic offenses, or minor regulatory offenses, does not exceed the limits described in
77     Subsections 77-40-105(5) and (6) without taking into consideration the exception in Subsection
78     77-40-105(8); and
79          (B) against whom no criminal proceedings are pending in the state; and
80          (iii) for which the following time periods have elapsed from the day on which the case
81     is adjudicated:
82          (A) at least five years for a class C misdemeanor or an infraction;
83          (B) at least six years for a class B misdemeanor; and
84          (C) at least seven years for a class A conviction for possession of a controlled
85     substance in violation of Subsection 58-37-8(2)(a)(i).
86          (b) "Clean slate eligible case" includes a case that is dismissed as a result of a
87     successful completion of a plea in abeyance agreement governed by Subsection 77-2a-3(2)(b)
88     if:
89          (i) except as provided in Subsection (5)(c), each charge within the case is:
90          (A) a misdemeanor for possession of a controlled substance in violation of Subsection
91     58-37-8(2)(a)(i);
92          (B) a class B or class C misdemeanor; or
93          (C) an infraction;
94          (ii) the individual involved meets the requirements of Subsection (5)(a)(ii); and
95          (iii) the time periods described in Subsections (5)(a)(iii)(A) through (C) have elapsed
96     from the day on which the case is dismissed.
97          (c) "Clean slate eligible case" does not include a case:
98          (i) where the individual is found not guilty by reason of insanity;
99          (ii) where the case establishes a criminal judgment accounts receivable, as defined in
100     Section 77-32a-101, that:
101          (A) has been entered as a civil judgment and transferred to the Office of State Debt
102     Collection; or
103          (B) has not been satisfied according to court records; or
104          (iii) that resulted in one or more pleas held in abeyance or convictions for the following
105     offenses:
106          (A) any of the offenses listed in Subsection 77-40-105(2)(a);
107          (B) an offense against the person in violation of Title 76, Chapter 5, Offenses Against
108     the Person;
109          (C) a weapons offense in violation of Title 76, Chapter 10, Part 5, Weapons;
110          (D) sexual battery in violation of Section 76-9-702.1;
111          (E) an act of lewdness in violation of Section 76-9-702 or 76-9-702.5;
112          (F) an offense in violation of Title 41, Chapter 6a, Part 5, Driving Under the Influence
113     and Reckless Driving;
114          (G) damage to or interruption of a communication device in violation of Section
115     76-6-108;
116          (H) a domestic violence offense as defined in Section 77-36-1; or
117          (I) any other offense classified in the Utah Code as a felony or a class A misdemeanor
118     other than a class A misdemeanor conviction for possession of a controlled substance in
119     violation of Subsection 58-37-8(2)(a)(i).
120          (6) "Conviction" means judgment by a criminal court on a verdict or finding of guilty
121     after trial, a plea of guilty, or a plea of nolo contendere.
122          (7) (a) "Criminal proceeding" means every stage of a criminal prosecution after an
123     arrest until the prosecution is dismissed or the sentence resulting from the prosecution is
124     terminated or expires.
125          (b) "Criminal proceeding" includes parole, incarceration, or supervised or unsupervised
126     probation.
127          (c) "Criminal proceeding" does not include a minor regulatory offense or a traffic
128     offense.
129          [(7)] (8) "Department" means the Department of Public Safety established in Section
130     53-1-103.
131          [(8)] (9) "Drug possession offense" means an offense under:
132          (a) Subsection 58-37-8(2), except any offense under Subsection 58-37-8(2)(b)(i),
133     possession of 100 pounds or more of marijuana, any offense enhanced under Subsection
134     58-37-8(2)(e), violation in a correctional facility or Subsection 58-37-8(2)(g), driving with a
135     controlled substance illegally in the person's body and negligently causing serious bodily injury
136     or death of another;
137          (b) Subsection 58-37a-5(1), use or possession of drug paraphernalia;
138          (c) Section 58-37b-6, possession or use of an imitation controlled substance; or
139          (d) any local ordinance which is substantially similar to any of the offenses described
140     in this Subsection [(8)] (9).
141          [(9)] (10) (a) "Expunge" means to seal or otherwise restrict access to the individual's
142     record held by an agency when the record includes a criminal investigation, detention, arrest, or
143     conviction.
144          (b) "Expunge" does not include access of a record by an agency, so long as the record
145     is not disclosed for any other purpose except as provided in Section 77-40-109.
146          [(10)] (11) "Jurisdiction" means a state, district, province, political subdivision,
147     territory, or possession of the United States or any foreign country.
148          [(11)] (12) "Minor regulatory offense" means any class B or C misdemeanor offense,
149     and any local ordinance, except:
150          (a) any drug possession offense;
151          (b) Title 41, Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving;
152          (c) Sections 73-18-13 through 73-18-13.6;
153          (d) those offenses defined in Title 76, Utah Criminal Code; or
154          (e) any local ordinance that is substantially similar to those offenses listed in
155     Subsections [(11)] (12)(a) through (d).
156          [(12)] (13) "Petitioner" means an individual applying for expungement under this
157     chapter.
158          [(13)] (14) (a) "Traffic offense" means:
159          (i) all infractions, class B misdemeanors, and class C misdemeanors in Title 41,
160     Chapter 6a, Traffic Code;
161          (ii) Title 53, Chapter 3, Part 2, Driver Licensing Act;
162          (iii) Title 73, Chapter 18, State Boating Act; and
163          (iv) all local ordinances that are substantially similar to those offenses.
164          (b) "Traffic offense" does not mean:
165          (i) Title 41, Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving;
166          (ii) Sections 73-18-13 through 73-18-13.6; or
167          (iii) any local ordinance that is substantially similar to the offenses listed in
168     Subsections [(13)] (14)(b)(i) and (ii).
169          (15) "Victim" means the same as the term "victim of a crime" is defined in Section
170     77-38-2.
171          Section 2. Section 77-40-103 is amended to read:
172          77-40-103. Petition for expungement procedure overview.
173          The process for a petition for the expungement of records under this chapter regarding
174     the arrest, investigation, detention, and conviction of a petitioner is as follows:
175          (1) The petitioner shall apply to the bureau for a certificate of eligibility for
176     expungement and pay the application fee established by the department.
177          (2) Once the eligibility process is complete, the bureau shall notify the petitioner.
178          (3) If the petitioner is qualified to receive a certificate of eligibility for expungement,
179     the petitioner shall pay the issuance fee established by the department.
180          (4) (a) The petitioner shall file the certificate of eligibility with a petition for
181     expungement in the court in which the proceedings occurred.
182          (b) If there were no court proceedings, or the court no longer exists, the petitioner may
183     file the petition in the district court where the arrest occurred.
184          (c) If a petitioner files a certificate of eligibility electronically, the petitioner or the
185     petitioner's attorney shall keep the original certificate until the proceedings are concluded.
186          (d) If the petitioner files the original certificate of eligibility with the petition, the clerk
187     or the court shall scan and return the original certificate to the petitioner or the petitioner's
188     attorney, who shall keep the original certificate until the proceedings are concluded.
189          (5) Notwithstanding Subsections (3) and (4), if the petitioner is not qualified to receive
190     a certificate of eligibility for expungement, the petitioner may file a petition without a
191     certificate to obtain expungement for a record of conviction related to cannabis possession if
192     the petition demonstrates that:
193          (a) the petitioner had, at the time of the relevant arrest or citation leading to the
194     conviction, a qualifying condition, as that term is defined in Section 26-61a-102; and
195          (b) the possession of cannabis in question was in a form and an amount to medicinally
196     treat the condition described in Subsection (5)(a).
197          (6) (a) The petitioner shall deliver a copy of the petition and certificate of eligibility to
198     the prosecutorial office that handled the court proceedings.
199          (b) If there were no court proceedings, the petitioner shall deliver the copy of the
200     petition and certificate to the county attorney's office in the jurisdiction where the arrest
201     occurred.
202          (c) If the prosecuting agency with jurisdiction over the arrest, investigation, and
203     detention, or the conviction, was a city attorney's office, the county attorney's office in the
204     jurisdiction where the arrest occurred shall immediately notify the city attorney's office that a
205     petition for expungement was served upon the county attorney's office.
206          (7) If the prosecutor or the victim files an objection to the petition, the court shall set a
207     hearing and notify the prosecutor and the victim of the date set for the hearing.
208          (8) If the court requests a response from the Division of Adult Probation and Parole
209     and a response is received, the petitioner may file a written reply in accordance with Section
210     77-40-107.
211          (9) A court may grant an expungement without a hearing if no objection is received.
212          (10) Upon receipt of an order of expungement, the petitioner shall deliver copies to all
213     government agencies in possession of records relating to the expunged matter.
214          Section 3. Section 77-40-104 is amended to read:
215          77-40-104. Requirements to apply for certificate of eligibility to expunge records
216     of arrest, investigation, and detention.
217          (1) An individual who is arrested or formally charged with an offense may apply to the
218     bureau for a certificate of eligibility to expunge the records of arrest, investigation, and
219     detention that may have been made in the case, subject to the following conditions:
220          [(1)] (a) at least 30 days have passed since the day of the arrest for which a certificate
221     of eligibility is sought;
222          [(2)] (b) there are no criminal proceedings pending against the individual; [and]
223          (c) there are no civil protective orders, criminal protective orders, or criminal stalking
224     injunctions in effect for the case; and
225          [(3)] (d) one of the following occurs:
226          [(a)] (i) charges are screened by the investigating law enforcement agency and the
227     prosecutor makes a final determination that no charges will be filed in the case;
228          [(b)] (ii) the entire case is dismissed with prejudice;
229          [(c)] (iii) the entire case is dismissed without prejudice or without condition and:
230          [(i)] (A) the prosecutor consents in writing to the issuance of a certificate of eligibility;
231     or
232          [(ii)] (B) at least 180 days have passed since the day on which the case is dismissed;
233          [(d)] (iv) the individual is acquitted at trial on all of the charges contained in the case;
234     or
235          [(e)] (v) the statute of limitations expires on all of the charges contained in the case.
236          (2) The bureau may not issue a certificate of eligibility under this section if the law
237     enforcement agency case number associated with the record of arrest, investigation, and
238     detention is associated with another law enforcement agency case number for an arrest,
239     investigation, and detention, or a conviction, that is not eligible for expungement under this
240     chapter.
241          Section 4. Section 77-40-104.1 is amended to read:
242          77-40-104.1. Eligibility for removing the link between personal identifying
243     information and court case dismissed.
244          (1) As used in this section:
245          (a) "Domestic violence offense" means the same as that term is defined in Section
246     77-36-1.
247          (b) "Personal identifying information" means:
248          (i) a current name, former name, nickname, or alias; and
249          (ii) date of birth.
250          (2) An individual whose criminal case is dismissed, or whose civil case filed in
251     accordance with Title 78B, Chapter 7, Protective Orders and Stalking Injunctions, is denied,
252     may move the court for an order to remove the link between the individual's personal
253     identifying information from the dismissed case in any publicly searchable database of the Utah
254     state courts and the court shall grant that relief if:
255          (a) 30 days have passed from the day on which the case is dismissed or denied;
256          (b) no appeal is filed for the dismissed or denied case within the 30-day period
257     described in Subsection (2)(a); and
258          (c) no charge in the case was a domestic violence offense.
259          (3) Removing the link to personal identifying information of a court record under
260     Subsection (2) does not affect a prosecuting, arresting, or other agency's records.
261          (4) A case history, unless expunged under this chapter, remains public and accessible
262     through a search by case number.
263          Section 5. Section 77-40-105 is amended to read:
264           77-40-105. Requirements to apply for a certificate of eligibility to expunge
265     conviction.
266          (1) An individual convicted of an offense may apply to the bureau for a certificate of
267     eligibility to expunge the record of conviction as provided in this section.
268          (2) An individual is not eligible to receive a certificate of eligibility from the bureau if:
269          (a) the conviction for which expungement is sought is:
270          (i) a capital felony;
271          (ii) a Ŝ→ [felony conviction of a] ←Ŝ first degree felony;
272          (iii) a Ŝ→ felony conviction of a ←Ŝ violent felony as defined in Subsection
272a     76-3-203.5(1)(c)(i);
273          (iv) felony automobile homicide;
274          (v) a felony conviction described in Subsection 41-6a-501(2);
275          [(vi) a registerable sex offense as defined in Subsection 77-41-102(17); or]
276          (vi) an offense, or a combination of offenses, that would require the individual to
277     register as a sex offender, as defined in Section 77-41-102; or
278          (vii) a registerable child abuse offense as defined in Subsection 77-43-102(2);
279          (b) a criminal proceeding is pending against the petitioner; [or]
280          (c) the petitioner intentionally or knowingly provides false or misleading information
281     on the application for a certificate of eligibility[.]; or
282          (d) a civil protective order, a criminal protective order, or a criminal stalking injunction
283     is in effect for the case.
284          (3) A petitioner seeking to obtain expungement for a record of conviction is not
285     eligible to receive a certificate of eligibility from the bureau until all of the following have
286     occurred:
287          (a) the petitioner has paid in full all fines and interest ordered by the court related to the
288     conviction for which expungement is sought;
289          (b) the petitioner has paid in full all restitution ordered by the court pursuant to Section
290     77-38a-302, or by the Board of Pardons and Parole pursuant to Section 77-27-6; and
291          (c) the following time periods have elapsed from the date the petitioner was convicted
292     or released from incarceration, parole, or probation, whichever occurred last, for each
293     conviction the petitioner seeks to expunge:
294          (i) 10 years in the case of a misdemeanor conviction of Subsection 41-6a-501(2) or a
295     felony conviction of Subsection 58-37-8(2)(g);
296          (ii) seven years in the case of a felony;
297          (iii) five years in the case of any class A misdemeanor or a felony drug possession
298     offense;
299          (iv) four years in the case of a class B misdemeanor; or
300          (v) three years in the case of any other misdemeanor or infraction.
301          (4) When determining whether to issue a certificate of eligibility, the bureau may not
302     consider:
303          (a) a petitioner's pending or previous:
304          (i) infraction;
305          (ii) traffic offense;
306          (iii) minor regulatory offense; or
307          (iv) clean slate eligible case that was automatically expunged in accordance with
308     Section 77-40-114; or
309          (b) a fine or fee related to an offense described in Subsection (4)(a).
310          (5) The bureau may not issue a certificate of eligibility if, at the time the petitioner
311     seeks a certificate of eligibility, the bureau determines that the petitioner's criminal history,
312     including previously expunged convictions, contains any of the following, except as provided
313     in Subsection (8):
314          (a) two or more felony convictions other than for drug possession offenses, each of
315     which is contained in a separate criminal episode;
316          (b) any combination of three or more convictions other than for drug possession
317     offenses that include two class A misdemeanor convictions, each of which is contained in a
318     separate criminal episode;
319          (c) any combination of four or more convictions other than for drug possession
320     offenses that include three class B misdemeanor convictions, each of which is contained in a
321     separate criminal episode; or
322          (d) five or more convictions other than for drug possession offenses of any degree
323     whether misdemeanor or felony, each of which is contained in a separate criminal episode.
324          (6) The bureau may not issue a certificate of eligibility if, at the time the petitioner
325     seeks a certificate of eligibility, the bureau determines that the petitioner's criminal history,
326     including previously expunged convictions, contains any of the following:
327          (a) three or more felony convictions for drug possession offenses, each of which is
328     contained in a separate criminal episode; or
329          (b) any combination of five or more convictions for drug possession offenses, each of
330     which is contained in a separate criminal episode.
331          (7) If the petitioner's criminal history contains convictions for both a drug possession
332     offense and a non drug possession offense arising from the same criminal episode, that criminal
333     episode shall be counted as provided in Subsection (5) if any non drug possession offense in
334     that episode:
335          (a) is a felony or class A misdemeanor; or
336          (b) has the same or a longer waiting period under Subsection (3) than any drug
337     possession offense in that episode.
338          (8) If at least 10 years have elapsed from the date the petitioner was convicted or
339     released from incarceration, parole, or probation, whichever occurred last, for all convictions,
340     then each eligibility limit defined in Subsection (5) shall be increased by one.
341          (9) If, prior to May 14, 2013, the petitioner has received a pardon from the Utah Board
342     of Pardons and Parole, the petitioner is entitled to an expungement order for all pardoned
343     crimes [pursuant to] in accordance with Section 77-27-5.1.
344          (10) The bureau may not issue a certificate of eligibility under this section if the law
345     enforcement agency case number associated with the record of conviction is associated with
346     another law enforcement agency case number for an arrest, investigation, and detention, or a
347     conviction, that is not eligible for expungement under this chapter.
348          Section 6. Section 77-40-107 is amended to read:
349          77-40-107. Petition for expungement -- Prosecutorial responsibility -- Hearing --
350     Standard of proof -- Exception.
351          (1) (a) The petitioner shall:
352          (i) file a petition for expungement and, except as provided in Subsection 77-40-103(5),
353     the certificate of eligibility in the court specified in Section 77-40-103; and [deliver]
354          (ii) serve a copy of the petition and certificate to the prosecuting agency in accordance
355     with the Utah Rules of Civil Procedure.
356          (b) If the certificate is filed electronically, the petitioner or the petitioner's attorney
357     shall keep the original certificate until the proceedings are concluded.
358          (c) If the original certificate is filed with the petition, the clerk of the court shall scan
359     [it] the original certificate and return [it] the original certificate to the petitioner or the
360     petitioner's attorney, who shall keep [it] the original certificate until the proceedings are
361     concluded.
362          (2) (a) Upon receipt of a petition for expungement of a conviction or a charge
363     dismissed in accordance with a plea in abeyance, the prosecuting attorney shall [provide notice
364     of the expungement request by first-class mail to the victim at the most recent address of record
365     on file] make a reasonable effort to provide notice to a victim of the conviction or charge
366     dismissed with a plea in abeyance.
367          (b) The notice shall:
368          (i) include a copy of the petition, certificate of eligibility, statutes, and rules applicable
369     to the petition;
370          (ii) state that the victim has a right to object to the expungement; and
371          (iii) provide instructions for registering an objection with the court.
372          (3) The prosecuting attorney and the victim, if applicable, may respond to the petition
373     by filing a recommendation or objection with the court within 35 days after receipt of the
374     petition.
375          (4) (a) The court may request a written response to the petition from the Division of
376     Adult Probation and Parole within the Department of Corrections.
377          (b) If requested, the response prepared by the Division of Adult Probation and Parole
378     shall include:
379          (i) the reasons probation was terminated; and
380          (ii) certification that the petitioner has completed all requirements of sentencing and
381     probation or parole.
382          (c) The Division of Adult Probation and Parole shall provide a copy of the response to
383     the petitioner and the prosecuting attorney.
384          (5) The petitioner may respond in writing to any objections filed by the prosecutor or
385     the victim and the response prepared by the Division of Adult Probation and Parole within 14
386     days after receipt.
387          (6) (a) If the court receives an objection concerning the petition from any party, the
388     court shall set a date for a hearing and notify the petitioner and the prosecuting attorney of the
389     date set for the hearing. The prosecuting attorney shall notify the victim of the date set for the
390     hearing.
391          (b) The petitioner, the prosecuting attorney, the victim, and any other person who has
392     relevant information about the petitioner may testify at the hearing.
393          (c) The court shall review the petition, the certificate of eligibility, and any written
394     responses submitted regarding the petition.
395          (7) If no objection is received within 60 days from the date the petition for
396     expungement is filed with the court, the expungement may be granted without a hearing.
397          (8) The court shall issue an order of expungement if the court finds by clear and
398     convincing evidence that:
399          (a) the petition and, except as provided under Subsection 77-40-103(5), certificate of
400     eligibility are sufficient;
401          (b) the statutory requirements have been met;
402          (c) if the petitioner seeks expungement after a case is dismissed without prejudice or
403     without condition, the prosecutor provided written consent and has not filed and does not
404     intend to refile related charges;
405          (d) if the petitioner seeks expungement of drug possession offenses allowed under
406     Subsection 77-40-105(6), the petitioner is not illegally using controlled substances and is
407     successfully managing any substance addiction;
408          (e) if the petitioner seeks expungement without a certificate of eligibility for
409     expungement under Subsection 77-40-103(5) for a record of conviction related to cannabis
410     possession:
411          (i) the petitioner had, at the time of the relevant arrest or citation leading to the
412     conviction, a qualifying condition, as that term is defined in Section 26-61a-102; and
413          (ii) the possession of cannabis in question was in a form and an amount to medicinally
414     treat the condition described in Subsection (8)(e)(i);
415          (f) if an objection is received, the petition for expungement is for a charge dismissed in
416     accordance with a plea in abeyance agreement, and the charge is an offense eligible to be used
417     for enhancement, there is good cause for the court to grant the expungement; and
418          (g) it is not contrary to the interests of the public to grant the expungement.
419          (9) (a) If the court denies a petition described in Subsection (8)(c) because the
420     prosecutor intends to refile charges, the person seeking expungement may again apply for a
421     certificate of eligibility if charges are not refiled within 180 days of the day on which the court
422     denies the petition.
423          (b) A prosecutor who opposes an expungement of a case dismissed without prejudice
424     or without condition shall have a good faith basis for the intention to refile the case.
425          (c) A court shall consider the number of times that good faith basis of intention to
426     refile by the prosecutor is presented to the court in making the court's determination to grant
427     the petition for expungement described in Subsection (8)(c).
428          (10) If the court grants a petition described in Subsection (8)(e), the court shall make
429     the court's findings in a written order.
430          (11) A court may not expunge a conviction of an offense for which a certificate of
431     eligibility may not be or should not have been issued under Section 77-40-104 or 77-40-105.
432          Section 7. Section 77-40-108 is amended to read:
433          77-40-108. Distribution of order -- Redaction -- Receipt of order -- Bureau
434     requirements -- Administrative proceedings.
435          [(1) (a) (i) An individual who receives an order of expungement under Section
436     77-40-107 or Section 77-27-5.1 shall be responsible for delivering a copy of the order of
437     expungement to all affected criminal justice agencies and officials including the court, arresting
438     agency, booking agency, prosecuting agency, Department of Corrections, and the bureau.]
439          [(ii) The provisions of Subsection (1)(a)(i) do not apply to an individual who receives
440     an automatic expungement under Section 77-40-114.]
441          (1) (a) The bureau, upon receiving notice from the court, shall notify all criminal
442     justice agencies affected by the order of expungement.
443          (b) An individual who receives an order of expungement under Section 77-27-5.1,
444     shall pay a processing fee to the bureau, established in accordance with the process in Section
445     63J-1-504, before the bureau's record may be expunged.
446          (2) Unless otherwise provided by law or ordered by a court of competent jurisdiction to
447     respond differently, an individual or agency who has received an expungement of an arrest or
448     conviction under this chapter or Section 77-27-5.1 may respond to any inquiry as though the
449     arrest or conviction did not occur.
450          (3) The bureau shall forward a copy of the expungement order to the Federal Bureau of
451     Investigation.
452          (4) An agency receiving an expungement order shall expunge the individual's
453     identifying information contained in records in the agency's possession relating to the incident
454     for which expungement is ordered.
455          (5) Unless ordered by a court to do so, or in accordance with Subsection 77-40-109(2),
456     a government agency or official may not divulge information or records that have been
457     expunged.
458          (6) (a) An order of expungement may not restrict an agency's use or dissemination of
459     records in the agency's ordinary course of business until the agency has received a copy of the
460     order.
461          (b) Any action taken by an agency after issuance of the order but prior to the agency's
462     receipt of a copy of the order may not be invalidated by the order.
463          (7) An order of expungement may not:
464          (a) terminate or invalidate any pending administrative proceedings or actions of which
465     the individual had notice according to the records of the administrative body prior to issuance
466     of the expungement order;
467          (b) affect the enforcement of any order or findings issued by an administrative body
468     pursuant to the administrative body's lawful authority prior to issuance of the expungement
469     order;
470          (c) remove any evidence relating to the individual including records of arrest, which
471     the administrative body has used or may use in these proceedings; or
472          (d) prevent an agency from maintaining, sharing, or distributing any record required by
473     law.