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7 LONG TITLE
8 General Description:
9 This bill addresses the waiver of fees for expungement of a criminal record.
10 Highlighted Provisions:
11 This bill:
12 ▸ defines the term "indigent" for purposes of a petition for expungement;
13 ▸ requires the Bureau of Criminal Identification to waive certain fees related to
14 expungement of a criminal record if a court finds that the individual filing the
15 petition for expungement is indigent; and
16 ▸ makes technical and conforming changes.
17 Money Appropriated in this Bill:
18 None
19 Other Special Clauses:
20 None
21 Utah Code Sections Affected:
22 AMENDS:
23 63I-1-277, as last amended by Laws of Utah 2022, Chapter 384 and last amended by
24 Coordination Clause, Laws of Utah 2022, Chapter 384
25 77-40a-101, as last amended by Laws of Utah 2022, Chapters 116, 430 and renumbered
26 and amended by Laws of Utah 2022, Chapter 250
27 77-40a-301, as enacted by Laws of Utah 2022, Chapter 250
28 77-40a-304, as last amended by Laws of Utah 2022, Chapter 384 and renumbered and
29 amended by Laws of Utah 2022, Chapter 250 and last amended by Coordination
30 Clause, Laws of Utah 2022, Chapter 384
31 77-40a-306, as enacted by Laws of Utah 2022, Chapter 250
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33 Be it enacted by the Legislature of the state of Utah:
34 Section 1. Section 63I-1-277 is amended to read:
35 63I-1-277. Repeal dates: Title 77.
36 [
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38 Section 2. Section 77-40a-101 is amended to read:
39 77-40a-101. Definitions.
40 As used in this chapter:
41 (1) "Agency" means a state, county, or local government entity that generates or
42 maintains records relating to an investigation, arrest, detention, or conviction for an offense for
43 which expungement may be ordered.
44 (2) "Bureau" means the Bureau of Criminal Identification of the Department of Public
45 Safety established in Section 53-10-201.
46 (3) "Certificate of eligibility" means a document issued by the bureau stating that the
47 criminal record and all records of arrest, investigation, and detention associated with a case that
48 is the subject of a petition for expungement is eligible for expungement.
49 (4) (a) Except as provided in Subsection (4)(c), "clean slate eligible case" means a
50 case:
51 (i) where each conviction within the case is:
52 (A) a misdemeanor conviction for possession of a controlled substance in violation of
53 Subsection 58-37-8(2)(a)(i);
54 (B) a class B or class C misdemeanor conviction; or
55 (C) an infraction conviction;
56 (ii) that involves an individual:
57 (A) whose total number of convictions in Utah state courts, not including infractions,
58 traffic offenses, or minor regulatory offenses, does not exceed the limits described in
59 Subsections 77-40a-303(5) and (6) without taking into consideration the exception in
60 Subsection 77-40a-303(8); and
61 (B) against whom no criminal proceedings are pending in the state; and
62 (iii) for which the following time periods have elapsed from the day on which the case
63 is adjudicated:
64 (A) at least five years for a class C misdemeanor or an infraction;
65 (B) at least six years for a class B misdemeanor; and
66 (C) at least seven years for a class A conviction for possession of a controlled
67 substance in violation of Subsection 58-37-8(2)(a)(i).
68 (b) "Clean slate eligible case" includes a case:
69 (i) that is dismissed as a result of a successful completion of a plea in abeyance
70 agreement governed by Subsection 77-2a-3(2)(b) if:
71 (A) except as provided in Subsection (4)(c), each charge within the case is a
72 misdemeanor for possession of a controlled substance in violation of Subsection
73 58-37-8(2)(a)(i), a class B or class C misdemeanor, or an infraction;
74 (B) the individual involved meets the requirements of Subsection (4)(a)(ii); and
75 (C) the time periods described in Subsections (4)(a)(iii)(A) through (C) have elapsed
76 from the day on which the case is dismissed; or
77 (ii) where charges are dismissed without prejudice if each conviction, or charge that
78 was dismissed, in the case would otherwise meet the requirements under Subsection (4)(a) or
79 (b)(i).
80 (c) "Clean slate eligible case" does not include a case:
81 (i) where the individual is found not guilty by reason of insanity;
82 (ii) where the case establishes a criminal accounts receivable, as defined in Section
83 77-32b-102, that:
84 (A) has been entered as a civil accounts receivable or a civil judgment of restitution, as
85 those terms are defined in Section 77-32b-102, and transferred to the Office of State Debt
86 Collection under Section 77-18-114; or
87 (B) has not been satisfied according to court records; or
88 (iii) that resulted in one or more pleas held in abeyance or convictions for the following
89 offenses:
90 (A) any of the offenses listed in Subsection 77-40a-303(1)(a);
91 (B) an offense against the person in violation of Title 76, Chapter 5, Offenses Against
92 the Individual;
93 (C) a weapons offense in violation of Title 76, Chapter 10, Part 5, Weapons;
94 (D) sexual battery in violation of Section 76-9-702.1;
95 (E) an act of lewdness in violation of Section 76-9-702 or 76-9-702.5;
96 (F) an offense in violation of Title 41, Chapter 6a, Part 5, Driving Under the Influence
97 and Reckless Driving;
98 (G) damage to or interruption of a communication device in violation of Section
99 76-6-108;
100 (H) a domestic violence offense as defined in Section 77-36-1; or
101 (I) any other offense classified in the Utah Code as a felony or a class A misdemeanor
102 other than a class A misdemeanor conviction for possession of a controlled substance in
103 violation of Subsection 58-37-8(2)(a)(i).
104 (5) "Conviction" means judgment by a criminal court on a verdict or finding of guilty
105 after trial, a plea of guilty, or a plea of nolo contendere.
106 (6) "Criminal protective order" means the same as that term is defined in Section
107 78B-7-102.
108 (7) "Criminal stalking injunction" means the same as that term is defined in Section
109 78B-7-102.
110 (8) "Department" means the Department of Public Safety established in Section
111 53-1-103.
112 (9) "Drug possession offense" means an offense under:
113 (a) Subsection 58-37-8(2), except:
114 (i) any offense under Subsection 58-37-8(2)(b)(i), possession of 100 pounds or more of
115 marijuana;
116 (ii) any offense enhanced under Subsection 58-37-8(2)(e), violation in a correctional
117 facility; or
118 (iii) driving with a controlled substance illegally in the person's body and negligently
119 causing serious bodily injury or death of another, as codified before May 4, 2022, Laws of Utah
120 2021, Chapter 236, Section 1, Subsection 58-37-8(2)(g);
121 (b) Subsection 58-37a-5(1), use or possession of drug paraphernalia;
122 (c) Section 58-37b-6, possession or use of an imitation controlled substance; or
123 (d) any local ordinance which is substantially similar to any of the offenses described
124 in this Subsection (9).
125 (10) "Expunge" means to seal or otherwise restrict access to the individual's record
126 held by an agency when the record includes a criminal investigation, detention, arrest, or
127 conviction.
128 (11) "Indigent" means a court found a petitioner financially unable to pay the fee to file
129 a petition for expungement under Section 78A-2-302.
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131 territory, or possession of the United States or any foreign country.
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133 offense" means a class B or C misdemeanor or a local ordinance.
134 (b) "Minor regulatory offense" includes an offense under Section 76-9-701 or
135 76-10-105.
136 (c) "Minor regulatory offense" does not include:
137 (i) any drug possession offense;
138 (ii) an offense under Title 41, Chapter 6a, Part 5, Driving Under the Influence and
139 Reckless Driving;
140 (iii) an offense under Sections 73-18-13 through 73-18-13.6;
141 (iv) except as provided in Subsection [
142 Criminal Code; or
143 (v) any local ordinance that is substantially similar to an offense listed in Subsections
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146 chapter.
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148 (i) all infractions, class B misdemeanors, and class C misdemeanors in Title 41,
149 Chapter 6a, Traffic Code;
150 (ii) an offense under Title 53, Chapter 3, Part 2, Driver Licensing Act;
151 (iii) an offense under Title 73, Chapter 18, State Boating Act; and
152 (iv) all local ordinances that are substantially similar to an offense listed in Subsections
153 [
154 (b) "Traffic offense" does not mean:
155 (i) an offense under Title 41, Chapter 6a, Part 5, Driving Under the Influence and
156 Reckless Driving;
157 (ii) an offense under Sections 73-18-13 through 73-18-13.6; or
158 (iii) any local ordinance that is substantially similar to an offense listed in Subsection
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161 offense.
162 Section 3. Section 77-40a-301 is amended to read:
163 77-40a-301. Application for certificate of eligibility for expungement -- Penalty
164 for false or misleading information on application.
165 (1) If an individual seeks to expunge the individual's criminal record in regard to an
166 arrest, investigation, detention, or conviction, the individual shall:
167 (a) except as provided in Subsection 77-40a-305(3) or (4), apply to the bureau for a
168 certificate of eligibility for expungement of the criminal record and pay the application fee as
169 described in Section 77-40a-304;
170 (b) if the individual is qualified to receive a certificate of eligibility, except as provided
171 in Subsection 77-40a-304(2)(d) or (5)(a), pay the issuance fee for the certificate of eligibility as
172 described in Section 77-40a-304; and
173 (c) file a petition for expungement in accordance with Section 77-40a-305.
174 (2) (a) An individual who intentionally or knowingly provides any false or misleading
175 information to the bureau when applying for a certificate of eligibility is guilty of a class B
176 misdemeanor and subject to prosecution under Section 76-8-504.6.
177 (b) Regardless of whether the individual is prosecuted, the bureau may deny a
178 certificate of eligibility to anyone who knowingly provides false information on an application.
179 Section 4. Section 77-40a-304 is amended to read:
180 77-40a-304. Certificate of eligibility process -- Issuance of certificate -- Fees --
181 Waiver of issuance fee.
182 (1) (a) When a petitioner applies for a certificate of eligibility as described in
183 Subsection 77-40a-301(1), the bureau shall perform a check of records of governmental
184 agencies, including national criminal data bases, to determine whether the petitioner is eligible
185 to receive a certificate of eligibility under this chapter.
186 (b) For purposes of determining eligibility under this chapter, the bureau may review
187 records of arrest, investigation, detention, and conviction that have been previously expunged,
188 regardless of the jurisdiction in which the expungement occurred.
189 (c) Once the eligibility process is complete, the bureau shall notify the petitioner.
190 (d) If the petitioner meets all of the criteria under Section 77-40a-302 or 77-40a-303:
191 (i) the bureau shall issue a certificate of eligibility that is valid for a period of 180 days
192 from the day on which the certificate is issued;
193 (ii) the bureau shall provide a petitioner with an identification number for the
194 certificate of eligibility; and
195 (iii) the petitioner shall pay the issuance fee established by the department as described
196 in Subsection (2).
197 (e) If, after reasonable research, a disposition for an arrest on the criminal history file is
198 unobtainable, the bureau may issue a special certificate giving determination of eligibility to
199 the court if:
200 (i) there are no criminal proceedings or pleas in abeyance pending against the
201 petitioner; and
202 (ii) the petitioner is not currently on probation or parole.
203 (2) (a) The bureau shall charge application and issuance fees for a certificate of
204 eligibility or special certificate in accordance with the process in Section 63J-1-504.
205 (b) The application fee shall be paid at the time the petitioner submits an application
206 for a certificate of eligibility to the bureau.
207 (c) [
208 issuance of a certificate of eligibility or special certificate is appropriate, the petitioner [
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210 certificate [
211 (d) [
212 issue a certificate of eligibility or special certificate without requiring payment of the issuance
213 fee if the petitioner:
214 (i) qualifies for a certificate of eligibility under Section 77-40a-302 unless the charges
215 were dismissed pursuant to a plea in abeyance agreement under Title 77, Chapter 2a, Pleas in
216 Abeyance, or a diversion agreement under Title 77, Chapter 2, Prosecution, Screening, and
217 Diversion[
218 (ii) indicates on the application for a certificate of eligibility that the petitioner
219 reasonably believes, as of the date of the application, that the fee to file a petition for
220 expungement is likely to be waived by a court because the petitioner is indigent.
221 (e) Funds generated under this Subsection (2) shall be deposited [
222 Fund as a dedicated credit by the department to cover the costs incurred in determining
223 eligibility.
224 (3) The bureau shall include on the certificate of eligibility all information that is
225 needed for the court to issue a valid expungement order.
226 (4) The bureau shall provide clear written instructions to the petitioner that explain:
227 (a) the process for a petition for expungement; and
228 (b) what is required of the petitioner to complete the process for a petition for
229 expungement.
230 (5) (a) If the bureau issues a certificate of eligibility or a special certificate without
231 requiring payment of the issuance fee under Subsection (2)(d)(ii), the bureau shall charge the
232 petitioner the issuance fee upon the bureau's receipt of an order deciding a petition for
233 expungement unless:
234 (i) the order indicates that the fee to file the petition for expungement is waived
235 because the petitioner is indigent; or
236 (ii) the court where the petition for expungement is filed communicates to the bureau
237 that the fee to file the petition for expungement is waived because the petitioner is indigent.
238 (b) If the petitioner qualifies for a waiver of the issuance fee under Subsection (5)(a)
239 and the order grants the petition for expungement, the bureau shall process the order in
240 accordance with Section 77-40a-401 as if the petitioner paid the issuance fee.
241 (c) If the petitioner does not qualify for a waiver of the issuance fee under Subsection
242 (5)(a) and the order grants the petition for expungement, the bureau may not process the order
243 in accordance with Section 77-40a-401 until the petitioner pays the issuance fee.
244 (6) If, pursuant to Subsection (2)(d)(ii), the bureau issues a certificate of eligibility or
245 special certificate without requiring payment of the issuance fee, the bureau may not charge the
246 petitioner an issuance fee on the grounds that the validity of the certificate described in
247 Subsection (1)(d)(i) has expired.
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253 Section 5. Section 77-40a-306 is amended to read:
254 77-40a-306. Order of expungement.
255 (1) If a petition is filed in accordance with Section 77-40a-305, the court shall issue an
256 order of expungement if the court finds, by clear and convincing evidence, that:
257 (a) except as provided in Subsection 77-40a-305(3) or (4), the petition and certificate
258 of eligibility are sufficient;
259 (b) the statutory requirements have been met;
260 (c) if the petitioner seeks expungement after a case is dismissed without prejudice or
261 without condition, the prosecuting attorney provided written consent and has not filed and does
262 not intend to refile related charges;
263 (d) if the petitioner seeks expungement without a certificate of eligibility for
264 expungement under Subsection 77-40a-305(4) for a record of conviction related to cannabis
265 possession:
266 (i) the petitioner had, at the time of the relevant arrest or citation leading to the
267 conviction, a qualifying condition, as that term is defined in Section 26-61a-102; and
268 (ii) the possession of cannabis in question was in a form and an amount to medicinally
269 treat the qualifying condition described in Subsection (1)(d)(i);
270 (e) if an objection is received, the petition for expungement is for a charge dismissed in
271 accordance with a plea in abeyance agreement, and the charge is an offense eligible to be used
272 for enhancement, there is good cause for the court to grant the expungement; and
273 (f) the interests of the public would not be harmed by granting the expungement.
274 (2) (a) If the court denies a petition described in Subsection (1)(c) because the
275 prosecuting attorney intends to refile charges, the petitioner may apply again for a certificate of
276 eligibility if charges are not refiled within 180 days after the day on which the court denies the
277 petition.
278 (b) A prosecuting attorney who opposes an expungement of a case dismissed without
279 prejudice, or without condition, shall have a good faith basis for the intention to refile the case.
280 (c) A court shall consider the number of times that good faith basis of intention to
281 refile by the prosecuting attorney is presented to the court in making the court's determination
282 to grant the petition for expungement described in Subsection (1)(c).
283 (3) If the court grants a petition described in Subsection (1)(e), the court shall make the
284 court's findings in a written order.
285 (4) A court may not expunge a conviction of an offense for which a certificate of
286 eligibility may not be, or should not have been, issued under Section 77-40a-302 or
287 77-40a-303.
288 (5) If the petitioner requests the court to waive the fee to file a petition for
289 expungement because the petitioner is indigent, an order issued under this section shall indicate
290 whether the request is granted or denied.