1     
HUMAN TRAFFICKING EXPUNGEMENT AMENDMENTS

2     
2024 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Ariel Defay

5     
Senate Sponsor: Stephanie Pitcher

6     

7     LONG TITLE
8     General Description:
9          This bill addresses the expungement of offenses for human trafficking victims.
10     Highlighted Provisions:
11          This bill:
12          ▸     allows an individual to file a petition for expungement, without a certificate of
13     eligibility, if the individual is seeking an expungement of records for prostitution,
14     aiding prostitution, or sexual solicitation and the individual was subject to force,
15     fraud, or coercion at the time of the conduct;
16          ▸     addresses an order for expungement when the individual is seeking an expungement
17     of records for prostitution, aiding prostitution, or sexual solicitation; and
18          ▸     makes technical and conforming changes.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          77-40a-301, as enacted by Laws of Utah 2022, Chapter 250
26          77-40a-305, as last amended by Laws of Utah 2023, Chapters 265, 330
27          77-40a-306, as last amended by Laws of Utah 2023, Chapter 330
28     

29     Be it enacted by the Legislature of the state of Utah:
30          Section 1. Section 77-40a-301 is amended to read:
31          77-40a-301. Requirements for expunging a criminal record -- Penalty for false or
32     misleading information on application.
33          (1) If an individual seeks to expunge the individual's criminal record in regard to an
34     arrest, investigation, detention, or conviction, the individual shall:
35          (a) except as provided in Subsection 77-40a-305(3) [or (4)], apply to the bureau for a
36     certificate of eligibility for expungement of the criminal record and pay the application fee as
37     described in Section 77-40a-304;
38          (b) if the individual is [qualified] eligible to receive a certificate of eligibility, pay the
39     issuance fee for the certificate of eligibility as described in Section 77-40a-304; and
40          (c) file a petition for expungement in accordance with Section 77-40a-305.
41          (2) (a) An individual who intentionally or knowingly provides any false or misleading
42     information to the bureau when applying for a certificate of eligibility is guilty of a class B
43     misdemeanor and subject to prosecution under Section 76-8-504.6.
44          (b) Regardless of whether the individual is prosecuted, the bureau may deny a
45     certificate of eligibility to anyone who knowingly provides false information on an application.
46          Section 2. Section 77-40a-305 is amended to read:
47          77-40a-305. Petition for expungement -- Prosecutorial responsibility -- Hearing.
48          (1) (a) The petitioner shall file a petition for expungement[,] in accordance with Rule
49     42 of the Utah Rules of Criminal Procedure[, that includes].
50          (b) A petitioner shall include the identification number for the certificate of eligibility
51     described in Subsection 77-40a-304(1)(d)(ii) in the petition for expungement, unless the
52     petitioner is not required to obtain a certificate of eligibility under Subsection (3).
53          [(b)] (c) Information on a certificate of eligibility is incorporated into a petition by
54     reference to the identification number for the certificate of eligibility.
55          (2) (a) If a petition for expungement is filed under Subsection (1)(a), the court shall
56     obtain a certificate of eligibility from the bureau.
57          (b) A court may not accept a petition for expungement if the certificate of eligibility is
58     no longer valid as described in Subsection 77-40a-304(1)(d)(i).
59          (3) Notwithstanding Subsection (2), the petitioner may file a petition [for expungement
60     of] to expunge records, without obtaining a certificate of eligibility, of:
61          (a) a traffic offense case [without obtaining a certificate of eligibility] if:
62          [(a) (i)] (i) (A) for a traffic offense case with a class C misdemeanor or infraction, at
63     least three years have passed after the day on which the petitioner was convicted; or
64          [(ii)] (B) for a traffic offense case with a class B misdemeanor, at least four years have
65     passed after the day on which the petitioner was convicted;
66          [(b)] (ii) there is no traffic offense case pending against the petitioner;
67          [(c)] (iii) there is no plea in abeyance for a traffic offense case pending against the
68     petitioner; and
69          [(d)] (iv) the petitioner is not currently on probation for a traffic offense case[.];
70          [(4) Notwithstanding Subsection (2), a petitioner may file a petition for expungement
71     of a record for]
72          (b) a conviction related to cannabis possession [without a certificate of eligibility] if
73     the petition demonstrates that:
74          [(a)] (i) the petitioner had, at the time of the relevant arrest or citation leading to the
75     conviction, a qualifying condition, as that term is defined in Section 26B-4-201; and
76          [(b)] (ii) the possession of cannabis in question was in a form and an amount to
77     medicinally treat the qualifying condition described in Subsection [(4)(a).] (3)(b)(i); or
78          (c) an arrest, a charge, or a conviction for prostitution under Section 76-10-1302,
79     aiding prostitution under Section 76-10-1304, or sexual solicitation under Section 76-10-1313,
80     if the petition demonstrates that the petitioner was subject to force, fraud, or coercion at the
81     time of the conduct giving rise to the arrest, charge, or conviction.
82          [(5)] (4) (a) The court shall provide notice of a filing of a petition and certificate of
83     eligibility to the prosecutorial office that handled the court proceedings within three days after
84     the day on which the petitioner's filing fee is paid or waived.
85          (b) If there were no court proceedings, the court shall provide notice of a filing of a
86     petition and certificate of eligibility to the county attorney's office in the jurisdiction where the
87     arrest occurred.
88          (c) If the prosecuting agency with jurisdiction over the arrest, investigation, detention,
89     or conviction, was a city attorney's office, the county attorney's office in the jurisdiction where
90     the arrest occurred shall immediately notify the city attorney's office that the county attorney's
91     office has received a notice of a filing of a petition for expungement.
92          [(6)] (5) (a) Upon receipt of a notice of a filing of a petition for expungement of a
93     conviction or a charge dismissed in accordance with a plea in abeyance, the prosecuting
94     attorney shall make a reasonable effort to provide notice to any victim of the conviction or
95     charge.
96          (b) The notice under Subsection [(6)(a)] (5)(a) shall:
97          (i) include a copy of the petition, certificate of eligibility, statutes, and rules applicable
98     to the petition;
99          (ii) state that the victim has a right to object to the expungement; and
100          (iii) provide instructions for registering an objection with the court.
101          [(7)] (6) (a) The prosecuting attorney may respond to the petition by filing a
102     recommendation or objection with the court within 35 days after the day on which the notice of
103     the filing of the petition is sent by the court to the prosecuting attorney.
104          (b) If there is a victim of the offense for which expungement is sought, the victim may
105     respond to the petition by filing a recommendation or objection with the court within 60 days
106     after the day on which the petition for expungement was filed with the court.
107          [(8)] (7) (a) The court may request a written response to the petition from the Division
108     of Adult Probation and Parole within the Department of Corrections.
109          (b) If requested, the response prepared by the Division of Adult Probation and Parole
110     shall include:
111          (i) the reasons probation was terminated; and
112          (ii) certification that the petitioner has completed all requirements of sentencing and
113     probation or parole.
114          (c) The Division of Adult Probation and Parole shall provide a copy of the response to
115     the petitioner and the prosecuting attorney.
116          [(9)] (8) The petitioner may respond in writing to any objections filed by the
117     prosecuting attorney or the victim and the response prepared by the Division of Adult
118     Probation and Parole within 14 days after the day on which the objection or response is
119     received.
120          [(10)] (9) (a) If the court receives an objection concerning the petition from any party,
121     the court shall set a date for a hearing and notify the petitioner and the prosecuting attorney of
122     the date set for the hearing.
123          (b) The prosecuting attorney shall notify the victim of the date set for the hearing.
124          (c) The petitioner, the prosecuting attorney, the victim, and any other person who has
125     relevant information about the petitioner may testify at the hearing.
126          (d) The court shall review the petition, the certificate of eligibility, and any written
127     responses submitted regarding the petition.
128          [(11)] (10) If no objection is received within 60 days from the day on which the
129     petition for expungement is filed with the court, the expungement may be granted without a
130     hearing.
131          Section 3. Section 77-40a-306 is amended to read:
132          77-40a-306. Order of expungement.
133          (1) If a petition is filed in accordance with Section 77-40a-305, the court shall issue an
134     order of expungement if the court finds, by clear and convincing evidence, that:
135          (a) except as provided in Subsection 77-40a-305(3) [or (4)], the petition and certificate
136     of eligibility are sufficient;
137          (b) the statutory requirements have been met;
138          (c) if the petitioner seeks expungement after a case is dismissed without prejudice or
139     without condition, the prosecuting attorney provided written consent and has not filed and does
140     not intend to refile related charges;
141          (d) if the petitioner seeks expungement without a certificate of eligibility [for
142     expungement under Subsection 77-40a-305(4) for a record of] for a conviction related to
143     cannabis possession as described in Subsection 77-40a-305(3):
144          (i) the petitioner had, at the time of the relevant arrest or citation leading to the
145     conviction, a qualifying condition, as that term is defined in Section 26B-4-201; and
146          (ii) the possession of cannabis in question was in a form and an amount to medicinally
147     treat the qualifying condition described in Subsection (1)(d)(i);
148          (e) the petitioner was subject to force, fraud, or coercion at the time of the conduct
149     giving rise to the arrest, charge, or conviction if the petitioner seeks expungement without a
150     certificate of eligibility as described in Subsection 77-40a-305(3) for an arrest, a charge, or a
151     conviction for a violation of Section 76-10-1302, prostitution, Section 76-10-1304, aiding
152     prostitution, or Section 76-10-1313, sexual solicitation;
153          [(e)] (f) if an objection is received, the petition for expungement is for a charge
154     dismissed in accordance with a plea in abeyance agreement, and the charge is an offense
155     eligible to be used for enhancement, there is good cause for the court to grant the expungement;
156     and
157          [(f)] (g) the interests of the public would not be harmed by granting the expungement.
158          (2) (a) If the court denies a petition described in Subsection (1)(c) because the
159     prosecuting attorney intends to refile charges, the petitioner may apply again for a certificate of
160     eligibility if charges are not refiled within 180 days after the day on which the court denies the
161     petition.
162          (b) A prosecuting attorney who opposes an expungement of a case dismissed without
163     prejudice, or without condition, shall have a good faith basis for the intention to refile the case.
164          (c) A court shall consider the number of times that good faith basis of intention to
165     refile by the prosecuting attorney is presented to the court in making the court's determination
166     to grant the petition for expungement described in Subsection (1)(c).
167          (3) If the court grants a petition described in Subsection [(1)(e)] (1)(f), the court shall
168     make the court's findings in a written order.
169          (4) A court may not expunge a conviction of an offense for which a certificate of
170     eligibility may not be, or should not have been, issued under Section 77-40a-302 or
171     77-40a-303.
172          Section 4. Effective date.
173          This bill takes effect on May 1, 2024.