Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 16 (2016GS)

Sponsor

Rep. Draxler, J.

Final action

Governor Signed 3/23/2016

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• adds the class A misdemeanor offenses of enticing a minor and voyeurism to the provisions allowing an offender to apply for removal from the registry five years after the offender completes the sentence and meets specified requirements; and
• provides that if an offender's petition to reduce the offender's time on the registry is denied, the offender may not petition again for three years.

Every vote on this bill

Bill text

OFFENDER REGISTRY AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Jack R. Draxler
Senate Sponsor: 
Lyle W. Hillyard
LONG TITLE
General Description:
This bill modifies provisions of the Sex and Kidnap Offender Registry.
Highlighted Provisions:
This bill:
▸ adds the class A misdemeanor offenses of enticing a minor and voyeurism to the
provisions allowing an offender to apply for removal from the registry five years
after the offender completes the sentence and meets specified requirements; and
▸ provides that if an offender's petition to reduce the offender's time on the registry is
denied, the offender may not petition again for three years.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
77-40-105
, as last amended by Laws of Utah 2014, Chapter 199
77-41-105
, as last amended by Laws of Utah 2015, Chapter 210
77-41-112
, as last amended by Laws of Utah 2013, Chapter 122
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
77-40-105
 is amended to read:
77-40-105.
Eligibility for expungement of conviction -- Requirements.
(1) A person convicted of an offense may apply to the bureau for a certificate of
eligibility to expunge the record of conviction as provided in this section.
(2) A petitioner is not eligible to receive a certificate of eligibility from the bureau if:
(a) the conviction for which expungement is sought is:
(i) a capital felony;
(ii) a first degree felony;
(iii) a violent felony as defined in Subsection 
76-3-203.5
(1)(c)(i);
(iv) felony automobile homicide;
(v) a felony violation of Subsection 
41-6a-501
(2); or
(vi) a registerable sex offense as defined in Subsection 
77-41-102
[
(16)
]
(17)
;
(b) a criminal proceeding is pending against the petitioner; or
(c) the petitioner intentionally or knowingly provides false or misleading information
on the application for a certificate of eligibility.
(3) A petitioner seeking to obtain expungement for a record of conviction is not
eligible to receive a certificate of eligibility from the bureau until all of the following have
occurred:
(a) all fines and interest ordered by the court have been paid in full;
(b) all restitution ordered by the court pursuant to Section 
77-38a-302
, or by the Board
of Pardons and Parole pursuant to Section 
77-27-6
, has been paid in full; and
(c) the following time periods have elapsed from the date the petitioner was convicted
or released from incarceration, parole, or probation, whichever occurred last, for each
conviction the petitioner seeks to expunge:
(i) 10 years in the case of a misdemeanor conviction of Subsection 
41-6a-501
(2) or a
felony conviction of Subsection 
58-37-8
(2)(g);
(ii) seven years in the case of a felony;
(iii) five years in the case of any class A misdemeanor or a felony drug possession
offense;
(iv) four years in the case of a class B misdemeanor; or
(v) three years in the case of any other misdemeanor or infraction.
(4) The bureau may not issue a certificate of eligibility if, at the time the petitioner
seeks a certificate of eligibility, the bureau determines that the petitioner's criminal history,
including previously expunged convictions, contains any of the following:
(a) two or more felony convictions other than for drug possession offenses, each of
which is contained in a separate criminal episode;
(b) any combination of three or more convictions other than for drug possession
offenses that include two class A misdemeanor convictions, each of which is contained in a
separate criminal episode;
(c) any combination of four or more convictions other than for drug possession
offenses that include three class B misdemeanor convictions, each of which is contained in a
separate criminal episode; or
(d) five or more convictions other than for drug possession offenses of any degree
whether misdemeanor or felony, excluding infractions and any traffic offenses, each of which
is contained in a separate criminal episode.
(5) The bureau may not issue a certificate of eligibility if, at the time the petitioner
seeks a certificate of eligibility, the bureau determines that the petitioner's criminal history,
including previously expunged convictions, contains any of the following:
(a) three or more felony convictions for drug possession offenses, each of which is
contained in a separate criminal episode; or
(b) any combination of five or more convictions for drug possession offenses, each of
which is contained in a separate criminal episode.
(6) If the petitioner's criminal history contains convictions for both a drug possession
offense and a non drug possession offense arising from the same criminal episode, that criminal
episode shall be counted as provided in Subsection (4) if any non drug possession offense in
that episode:
(a) is a felony or class A misdemeanor; or
(b) has the same or a longer waiting period under Subsection (3) than any drug
possession offense in that episode.
(7) If, prior to May 14, 2013, the petitioner has received a pardon from the Utah Board
of Pardons and Parole, the petitioner is entitled to an expungement order for all pardoned
crimes pursuant to Section 
77-27-5.1
.
Section 2. Section 
77-41-105
 is amended to read:
77-41-105.
Registration of offenders -- Offender responsibilities.
(1) An offender convicted by any other jurisdiction is required to register under
Subsection (3) and Subsection 
77-41-102
(9) or (17). The offender shall register with the
department within 10 days of entering the state, regardless of the offender's length of stay.
(2) (a) An offender required to register under Subsection 
77-41-102
(9) or (17) who is
under supervision by the department shall register in person with Division of Adult Probation
and Parole.
(b) An offender required to register under Subsection 
77-41-102
(9) or (17) who is no
longer under supervision by the department shall register in person with the police department
or sheriff's office that has jurisdiction over the area where the offender resides.
(3) (a) Except as provided in Subsections (3)(b), (c), and (4), and Section 
77-41-106
,
an offender shall, for the duration of the sentence and for 10 years after termination of sentence
or custody of the division, register every year during the month of the offender's date of birth,
during the month that is the sixth month after the offender's birth month, and also within three
business days of every change of the offender's primary residence, any secondary residences,
place of employment, vehicle information, or educational information required to be submitted
under Subsection (8).
(b) Except as provided in Subsections (4) and (5), and Section 
77-41-106
, an offender
who is convicted in another jurisdiction of an offense listed in Subsection 
77-41-102
(9)(a) or
(17)(a), a substantially similar offense, or any other offense that requires registration in the
jurisdiction of conviction, shall:
(i) register for the time period, and in the frequency, required by the jurisdiction where
the offender was convicted if that jurisdiction's registration period or registration frequency
requirement for the offense that the offender was convicted of is greater than the 10 years from
completion of the sentence registration period that is required under Subsection (3)(a), or is
more frequent than every six months; or
(ii) register in accordance with the requirements of Subsection (3)(a), if the
jurisdiction's registration period or frequency requirement for the offense that the offender was
convicted of is less than the registration period required under Subsection (3)(a), or is less
frequent than every six months.
(c) (i) An offender convicted as an adult of any of the offenses listed in Section
77-41-106
 shall, for the offender's lifetime, register every year during the month of the
offender's birth, during the month that is the sixth month after the offender's birth month, and
also within three business days of every change of the offender's primary residence, any
secondary residences, place of employment, vehicle information, or educational information
required to be submitted under Subsection (8).
(ii) This registration requirement is not subject to exemptions and may not be
terminated or altered during the offender's lifetime
, unless a petition is granted under Section
77-41-112
.
(d) For the purpose of establishing venue for a violation of this Subsection (3), the
violation is considered to be committed:
(i) at the most recent registered primary residence of the offender or at the location of
the offender, if the actual location of the offender at the time of the violation is not known; or
(ii) at the location of the offender at the time the offender is apprehended.
(4) Notwithstanding Subsection (3) and Section 
77-41-106
, an offender who is
confined in a secure facility or in a state mental hospital is not required to register during the
period of confinement.
(5) In the case of an offender adjudicated in another jurisdiction as a juvenile and
required to register under this chapter, the offender shall register in the time period and in the
frequency consistent with the requirements of this Subsection (5). However, if the jurisdiction
of the offender's adjudication does not publish the offender's information on a public website,
the department shall maintain, but not publish the offender's information on the Sex Offender
and Kidnap Offender Registration website.
(6) An offender who is required to register under Subsection (3) shall surrender the
offender's license, certificate, or identification card as required under Subsection 
53-3-216
(3)
or 
53-3-807
(4) and may apply for a license certificate or identification card as provided under
Section 
53-3-205
 or 
53-3-804
.
(7) A sex offender who violates Section 
77-27-21.8
 regarding being in the presence of
a child while required to register under this chapter shall register for an additional five years
subsequent to the registration period otherwise required under this chapter.
(8) An offender shall provide the department or the registering entity with the
following information:
(a) all names and aliases by which the offender is or has been known;
(b) the addresses of the offender's primary and secondary residences;
(c) a physical description, including the offender's date of birth, height, weight, eye and
hair color;
(d) the make, model, color, year, plate number, and vehicle identification number of
any vehicle or vehicles the offender owns or regularly drives;
(e) a current photograph of the offender;
(f) a set of fingerprints, if one has not already been provided;
(g) a DNA specimen, taken in accordance with Section 
53-10-404
, if one has not
already been provided;
(h) telephone numbers and any other designations used by the offender for routing or
self-identification in telephonic communications from fixed locations or cellular telephones;
(i) Internet identifiers and the addresses the offender uses for routing or
self-identification in Internet communications or postings;
(j) the name and Internet address of all websites on which the offender is registered
using an online identifier, including all online identifiers used to access those websites;
(k) a copy of the offender's passport, if a passport has been issued to the offender;
(l) if the offender is an alien, all documents establishing the offender's immigration
status;
(m) all professional licenses that authorize the offender to engage in an occupation or
carry out a trade or business, including any identifiers, such as numbers;
(n) each educational institution in Utah at which the offender is employed, carries on a
vocation, or is a student, and any change of enrollment or employment status of the offender at
any educational institution;
(o) the name, the telephone number, and the address of any place where the offender is
employed or will be employed;
(p) the name, the telephone number, and the address of any place where the offender
works as a volunteer or will work as a volunteer; and
(q) the offender's social security number.
(9) Notwithstanding Section 
42-1-1
, an offender:
(a) may not change the offender's name:
(i) while under the jurisdiction of the department; and
(ii) until the registration requirements of this statute have expired; and
(b) may not change the offender's name at any time, if registration is for life under
Subsection 
77-41-105
(3)(c).
(10) Notwithstanding Subsections (8)(i) and (j) and 
77-41-103
(1)(c), an offender is not
required to provide the department with:
(a) the offender's online identifier and password used exclusively for the offender's
employment on equipment provided by an employer and used to access the employer's private
network; or
(b) online identifiers for the offender's financial accounts, including any bank,
retirement, or investment accounts.
Section 3. Section 
77-41-112
 is amended to read:
77-41-112.
Removal from registry -- Requirements -- Procedure.
(1) An offender may petition the court where the offender was convicted of the offense
requiring registration for an order removing the offender from the Sex Offender and Kidnap
Offender Registry if:
(a) the offender was convicted of [
violating:
] 
an offense under Subsection (2);
(b) at least five years have passed since the completion of the offender's sentence for
the offense;
(c) the offense is the only conviction for which the offender is required to register; and
(d) the offender has not been convicted, subsequently to the offense for which the
offender was placed on the registry, of a violation listed in:
(i) Subsection 
77-41-102
(9), which defines a kidnap offender; or
(ii) Subsection 
77-41-102
(17), which defines a sex offender.
(2) The offenses referred to in Subsection (1)(a) are:
(a) Section 
76-4-401
, Enticing a minor, if the offense is a class A misdemeanor;
[
(i)
] 
(b)
 Section 
76-5-301
, Kidnapping, and the conviction of violating Section
76-5-301
 [
is the only conviction for which the offender is required to register
];
[
(ii)
] 
(c)
 Section 
76-5-304
, Unlawful detention, and the conviction of violating Section
76-5-304
 is the only conviction for which the offender is required to register;
[
(iii)
] 
(d)
 Section 
76-5-401
, Unlawful sexual activity with a minor and, at the time of
the offense, was not more than 10 years older than the victim; [
or
]
[
(iv)
] 
(e)
 Section 
76-5-401.2
, Unlawful sexual conduct with a 16 or 17 year old, and at
the time of the offense, was not more than 15 years older than the victim; 
or
(f) Section 
76-9-702.7
, Voyeurism, if the offense is a class A misdemeanor.
[
(b) five years have passed since the completion of the offender's sentence;
]
(3) An offender who meets the requirements under Subsection (1) shall also complete
all of the following requirements:
[
(c)
] 
(a)
 the offender has successfully completed all treatment ordered by the court or
the Board of Pardons and Parole relating to the conviction;
[
(d)
] 
(b)
 (i) the offender has not been convicted of any other crime, excluding traffic
offenses, as evidenced by a certificate of eligibility issued by the bureau; 
and
(ii) as used in this section, "traffic offense" does not include a violation of Title 41,
Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving;
[
(e)
] 
(c)
 the offender has paid all restitution ordered by the court;
[
(f)
] 
(d)
 the offender has complied with all the registration requirements at all times as
required in this chapter, as evidenced by a document obtained by the offender from the Utah
Department of Corrections, which confirms compliance; and
[
(g)
] 
(e)
 the office that prosecuted the offender, and the victim, or if the victim is still a
minor, the victim's parent, are notified and provided with an opportunity to respond in
accordance with Subsection [
(3)
] 
(6)
(a).
[
(2)
] 
(4)
 (a) (i) An offender seeking removal from the Sex Offender or Kidnap
Offender Registry shall apply for a certificate of eligibility from the bureau.
(ii) An offender who intentionally or knowingly provides any false or misleading
information to the bureau when applying for a certificate of eligibility is guilty of a class B
misdemeanor and subject to prosecution under Section 
76-8-504.6
.
(iii) Regardless of whether the offender is prosecuted, the bureau may deny a certificate
of eligibility to anyone providing false information on an application.
(b) (i) The bureau shall perform a check of records of governmental agencies,
including national criminal databases, to determine whether an offender is eligible to receive a
certificate of eligibility under this section.
(ii) If the offender meets all of the criteria under Subsections [
(1)(b) and (d)
] 
(1), (2),
and (3)
, the bureau shall issue a certificate of eligibility to the offender, which shall be valid for
a period of 90 days from the date the certificate is issued.
[
(c)
] 
(5) (a)
 (i) The bureau shall charge application and issuance fees for a certificate of
eligibility in accordance with the process in Section 
63J-1-504
.
(ii) The application fee shall be paid at the time the offender submits an application for
a certificate of eligibility to the bureau.
(iii) If the bureau determines that the issuance of a certificate of eligibility is
appropriate, the offender will be charged an additional fee for the issuance of a certificate of
eligibility.
[
(d)
] 
(b)
 Funds generated under [
this
] Subsection [
(2)
] 
(5)
 shall be deposited in the
General Fund as a dedicated credit by the department to cover the costs incurred in determining
eligibility.
[
(3)
] 
(6)
 (a) The offender shall file the petition, original information, and court docket
with the court, and deliver a copy of the petition to the office of the prosecutor.
(i) Upon receipt of a petition for removal from the Sex Offender and Kidnap Offender
Registry, the office of the prosecutor shall provide notice of the petition
:
(A)
 by first-class mail to the victim at the most recent address of record on file or, if
the victim is still a minor, to the parent or guardian of the victim[
.
]
; and
(B) to the Sex and Kidnap Offender Registry office in the Department of Corrections.
(ii) The notice shall include a copy of the petition, state that the victim has a right to
object to the removal of the offender from the registry, and provide instructions for registering
an objection with the court.
(b) The office of the prosecutor shall provide the following, if available, to the court
within 30 days after receiving the petition:
(i) presentencing report;
(ii) any evaluation done as part of sentencing; and
(iii) any other information the office of the prosecutor feels the court should consider.
(c) The victim, or the victim's parent or guardian if the victim is a minor, may respond
to the petition by filing a recommendation or objection with the court within 45 days after the
mailing of the petition to the victim.
[
(4)
] 
(7)
 (a) The court shall:
(i) review the petition and all documents submitted with the petition; and
(ii) hold a hearing if requested by the prosecutor or the victim.
(b) The court shall consider whether the offender has paid all restitution ordered by the
court or the Board of Pardons.
(c) If the court determines that it is not contrary to the interests of the public to do so, it
may grant the petition and order removal of the offender from the registry.
(d) If the court grants the petition, it shall forward a copy of the order directing removal
of the offender from the registry to the department and the office of the prosecutor.
(e) If the court denies the petition, the offender may not submit another petition for
three years.
[
(5)
] 
(8)
 The office of the prosecutor shall notify the victim 
and the Sex and Kidnap
Offender Registry office in the Department of Corrections
 of the court's decision in the same
manner as notification was provided in Subsection [
(3)
] 
(6)
(a).