What is an expungement?
An arrest or a criminal conviction can stay on a person’s record forever. An expungement can change that. An expungement is the official sealing of all court records, arrest records, and associated investigation and detention records.
The current Utah Code, §77-40-108(2), allows a person who has received an expungement to “respond to any inquiry as though the arrest or conviction did not occur.” Additionally, expungement can restore firearm rights, open employment opportunities, and free a person from the legal restrictions accompanying a criminal conviction.
Who is eligible for expungement?
Utah law imposes limitations both on the types of charges may be expunged and also the number of convictions. Time requirements vary based on the level of the conviction.
To qualify, a person may not have any active criminal cases open to be eligible for expungement of any charges. First-degree felonies, violent felonies, felony DUIs, automobile homicide, registrable sex offenses, and registrable child abuse offenses are not eligible for expungement.
Eligibility can also be denied if your criminal record is too long. If you have convictions arising from separate criminal episodes for two or more felonies, three or more convictions (if two are classified as Class A misdemeanors), four or more convictions (if three of them are Class B misdemeanors), or five or more convictions of any degree other than an infraction, you will not be eligible for expungement.
If you are not eligible for expungement, a 402 reduction may restore eligibility.
The waiting time to be eligible for a certificate of eligibility begins to run from the latest of either the date of conviction, release from incarceration, or termination from probation or parole. The waiting time for a felony charge is seven years, five years for a Class A misdemeanor, four years for a Class B, and three years for any other misdemeanor or infraction.
If your case has been dismissed or if there are any records not involving a conviction you would like to expunge, you may be eligible for expungement 30 days after the dismissal or arrest.
How to get a conviction expunged?
The first step in filing for a traditional expungement in Utah is to obtain a certificate of eligibility from the Utah Bureau of Criminal Identification, or BCI. BCI cannot issue expungements, but they are responsible for determining if someone is eligible for expungement under Utah law.
After reviewing your convictions, BCI will send you a letter listing the eligible convictions. You must return the letter to BCI with the required fee before BCI will issue the actual certificate of eligibility.
The next step is preparing and filing the petition for expungement. The petition is a formal request that the court order the expungement of your criminal records. The petition must be accompanied by the certificate of eligibility from BCI. In addition, the petition must contain enough information to show, by “clear and convincing evidence,” that granting the expungement is not contrary to the public interest.
If the prosecutor or victim objects, the court is required to hold a hearing to determine whether or not the expungement should be granted.
If the courts find that an expungement is not against the public’s interest, the judge will grant the petition for expungement and issue orders to expunge. However, unless the government agencies with records of criminal information are presented with the court order, they will still make information about the case available to the public.
After the order has been delivered, the records are sealed and made unavailable to the public. While there are some statutory exceptions in Utah Code §77-40-108 and §77-40-109, they “may not divulge information of records which have been expunged” absent a court order.
Utah’s Clean Slate Law
In February of 2022, the Utah Clean Slate Law went into effect. This law directs the Utah courts to seal certain records without a petition from the person charged. Expungements done under the Utah Clean Slate Law are often called automatic expungements because they do not require a petition to be filed or the petitioner to show that the expungement is “not contrary to the interests of the public.” However, the kinds of records that can be sealed under the Utah Clean Slate Law are more restrictive than charges eligible to be expunged with a petition and the time requirements are different.
In addition to the limitations imposed upon which cases are eligible for a certificate of eligibility, offenses against the person, weapons offenses, domestic violence, DUI, sexual battery, lewdness, and damage to or interruption to communication devices convictions are not eligible for expungement under the Utah Clean Slate Law. Furthermore, Class A misdemeanors other than possession of a controlled substance and felonies are not eligible for automatic expungement.
Class A convictions for possession of a controlled substance become eligible for automatic expungement after seven years, after six years for a Class B misdemeanor, and five years for a Class C. Convictions can be expunged earlier by filing a petition for expungement.
There are substantial benefits to having your criminal record expunged. An experienced attorney can be crucial to the process. We have assisted clients with expungement cases ranging from felony charges to misdemeanor convictions requiring 402 reductions in order to restore expungement eligibility. If you are considering pursuing an expungement, contact us today to arrange for an initial consultation.