Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 62 Second Substitute (2018GS)

Sponsor

Sen. Weiler, T.

Final action

Governor Signed 3/19/2018

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• addresses expungement and fines, fees, or interest;
• addresses expungement and pending or previous infractions, traffic offenses, or minor regulatory offenses;
• provides for a certificate of eligibility if certain conditions are met after a case is dismissed without prejudice or condition;
• addresses when the court shall issue an order of expungement;
• provides for applying for a certificate of eligibility after a petition for expungement is denied; and
• makes technical amendments.

Every vote on this bill

Bill text

EXPUNGEMENT AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Todd Weiler
House Sponsor: 
Michael K. McKell
LONG TITLE
General Description:
This bill modifies provisions related to expungement.
Highlighted Provisions:
This bill:
▸ addresses expungement and fines, fees, or interest;
▸ addresses expungement and pending or previous infractions, traffic offenses, or
minor regulatory offenses;
▸ provides for a certificate of eligibility if certain conditions are met after a case is
dismissed without prejudice or condition;
▸ addresses when the court shall issue an order of expungement;
▸ provides for applying for a certificate of eligibility after a petition for expungement
is denied; and
▸ makes technical amendments.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
77-40-104
, as last amended by Laws of Utah 2012, Chapter 136
77-40-105
, as last amended by Laws of Utah 2017, Chapters 282 and 356
77-40-107
, as last amended by Laws of Utah 2017, Chapter 356
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
77-40-104
 is amended to read:
77-40-104.
Eligibility for expungement of records of arrest, investigation, and
detention -- Requirements.
(1) A person who [
has been
] 
is
 arrested or formally charged with an offense may apply
to the bureau for a certificate of eligibility to expunge [
all
] 
the
 records of arrest, investigation,
and detention [
which
] 
that
 may have been made in the case, subject to the following
conditions:
(a) at least 30 days have passed since the 
day of the
 arrest for which a certificate of
eligibility is sought;
(b) there are no criminal proceedings pending against the petitioner; and
(c) one of the following [
occurred
] 
occurs
:
(i) charges [
were
] 
are
 screened by the investigating law enforcement agency and the
prosecutor [
has made
] 
makes
 a final determination that no charges will be filed in the case;
(ii) the entire case [
was
] 
is
 dismissed with prejudice;
(iii) the entire case is dismissed without prejudice or without condition and:
(A) the prosecutor consents in writing to the issuance of a certificate of eligibility; or
(B) at least 180 days have passed since the day on which the case is dismissed;
[
(iii)
] 
(iv)
 the person [
was
] 
is
 acquitted at trial on all of the charges contained in the
case; or
[
(iv)
] 
(v)
 the statute of limitations [
has expired
] 
expires
 on all of the charges contained
in the case.
(2) Notwithstanding Subsection (1)(a), 
the bureau shall issue a certificate of eligibility
on an expedited basis to
 a petitioner seeking expungement under Subsection [
(1)(c)(iii) shall be
issued a certificate of eligibility on an expedited basis
] 
(1)(c)(iv)
.
Section 2. 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);
(vi) a registerable sex offense as defined in Subsection 
77-41-102
(17); or
(vii) a registerable child abuse offense as defined in Subsection 
77-43-102
(2);
(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 
related to the conviction for which
expungement is sought
 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 count 
pending or previous
 infractions, traffic offenses, or
minor regulatory offenses
, or fines or fees arising from the infractions, traffic offenses, or
minor regulatory offenses,
 when determining expungement eligibility.
(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, except as provided
in Subsection (8):
(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, each of which is contained in a separate criminal episode.
(6) 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.
(7) 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 (5) 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.
(8) If at least 10 years have elapsed from the date the petitioner was convicted or
released from incarceration, parole, or probation, whichever occurred last, for all convictions,
then each eligibility limit defined in Subsection (5) shall be increased by one.
(9) 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 3. Section 
77-40-107
 is amended to read:
77-40-107.
Petition for expungement -- Prosecutorial responsibility -- Hearing --
Standard of proof -- Exception.
(1) The petitioner shall file a petition for expungement and the certificate of eligibility
in the court specified in Section 
77-40-103
 and deliver a copy of the petition and certificate to
the prosecuting agency. If the certificate is filed electronically, the petitioner or the petitioner's
attorney shall keep the original certificate until the proceedings are concluded. If the original
certificate is filed with the petition, the clerk of the court shall scan it and return it to the
petitioner or the petitioner's attorney, who shall keep it until the proceedings are concluded.
(2) (a) Upon receipt of a petition for expungement of a conviction, the prosecuting
attorney shall provide notice of the expungement request by first-class mail to the victim at the
most recent address of record on file.
(b) The notice shall
:
(i)
 include a copy of the petition, certificate of eligibility, statutes
,
 and rules applicable
to the petition[
,
]
;
(ii)
 state that the victim has a right to object to the expungement[
,
]
;
 and
(iii)
 provide instructions for registering an objection with the court.
(3) The prosecuting attorney and the victim, if applicable, may respond to the petition
by filing a recommendation or objection with the court within 35 days after receipt of the
petition.
(4) (a) The court may request a written response to the petition from the Division of
Adult Probation and Parole within the Department of Corrections.
(b) If requested, the response prepared by 
the Division of
 Adult Probation and Parole
shall include:
(i) the reasons probation was terminated; and
(ii) certification that the petitioner has completed all requirements of sentencing and
probation or parole.
(c) [
A
] 
The Division of Adult Probation and Parole shall provide a
 copy of the
response [
shall be provided
] to the petitioner and the prosecuting attorney.
(5) The petitioner may respond in writing to any objections filed by the prosecutor or
the victim and the response prepared by 
the Division of
 Adult Probation and Parole within 14
days after receipt.
(6) (a) If the court receives an objection concerning the petition from any party, the
court shall set a date for a hearing and notify the petitioner and the prosecuting attorney of the
date set for the hearing. The prosecuting attorney shall notify the victim of the date set for the
hearing.
(b) The petitioner, the prosecuting attorney, the victim, and any other person who has
relevant information about the petitioner may testify at the hearing.
(c) The court shall review the petition, the certificate of eligibility, and any written
responses submitted regarding the petition.
(7) If no objection is received within 60 days from the date the petition for
expungement [
was
] 
is
 filed with the court, the expungement may be granted without a hearing.
(8) The court shall issue an order of expungement if [
it
] 
the court
 finds by clear and
convincing evidence that:
(a) the petition and certificate of eligibility are sufficient;
(b) the statutory requirements have been met;
(c) if the petitioner seeks expungement after a case is dismissed without prejudice or
without condition, the prosecutor provided written consent and has not filed and does not
intend to refile related charges;
[
(c)
] 
(d)
 if the petitioner seeks expungement of drug possession offenses allowed under
Subsection 
77-40-105
(6), the petitioner is not illegally using controlled substances and is
successfully managing any substance addiction; and
[
(d)
] 
(e)
 it is not contrary to the interests of the public to grant the expungement.
(9) (a) If the court denies a petition described in Subsection (8)(c) because the
prosecutor intends to refile charges, the person seeking expungement may again apply for a
certificate of eligibility if charges are not refiled within 180 days of the day on which the court
denies the petition.
(b) A prosecutor who opposes an expungement of a case dismissed without prejudice
or without condition shall have a good faith basis for the intention to refile the case.
(c) A court shall consider the number of times that good faith basis of intention to
refile by the prosecutor is presented to the court in making the court's determination to grant
the petition for expungement described in Subsection (8)(c).
[
(9)
] 
(10)
 A court may not expunge a conviction of an offense for which a certificate of
eligibility may not be or should not have been issued under Section 
77-40-104
 or 
77-40-105
.