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Expunging Adult Criminal Records

Introduction

The Utah Expungement Act governs how to expunge records of an arrest or conviction in Utah, regardless of when a person was arrested or convicted.

Expunging a criminal record does not change history; expunging a record means that the court orders the records of the arrest, investigation, detention and conviction in the criminal case sealed. Sealing a record means that the public cannot view or copy the record. Conviction includes a verdict or finding of guilty after trial, a plea of guilty, or a plea of nolo contendere (no contest).

If an agency does not receive the expungement order, they are not required to seal their records. A government agency that has received an expungement order will respond to an inquiry as though that arrest or conviction did not occur. A person who has had records expunged may respond to an inquiry as though that arrest or conviction did not occur. The order to seal records applies only to government agencies. Other records, such as news accounts of an arrest or conviction, are not affected.

After a record is expunged, an agency's sealed records can still be viewed and copied by some government officials, and the court can order the records unsealed under some conditions.

Although the records being expunged are criminal records, the petition to expunge is a civil case. In proceedings to expunge a record, the defendant in the criminal case is the petitioner in the expungement case.


Criteria for Expungement of Records of Crimes Without a Conviction

See Section 77-40-104. A person qualifies to expunge records of arrest, investigation, and detention for a crime for which there has been no conviction if:

  • at least 30 days have passed since the arrest;
  • there are no criminal cases pending; and
  • one of the following occurred:
    • no charges were filed;
    • charges were filed, but the case was dismissed with prejudice;
    • charges were filed, but the person was acquitted at trial; or
    • the statute of limitations has expired.

Criteria for Expungement of Records of Crimes With a Conviction

See Section 77-40-105. To expunge records of crimes with a conviction, the petitioner must first pay all fines, fees, restitution and interest. Unless a person has been pardoned for the offense, records of the following crimes cannot be expunged:

A person cannot expunge records of any conviction if:

  • the petitioner provides false or misleading information on the application for the certificate of eligibility; (It is also a criminal offense to provide false or misleading information on the application.)
  • there is a criminal case pending;
  • the petitioner has been convicted in separate criminal episodes of:
    • two or more felonies;
    • three or more crimes of which two are class A misdemeanors;
    • four or more crimes of which three are class B misdemeanors; or
    • five or more crimes of any degree other than infractions and the traffic offenses identified in Section 77-40-102.

A criminal episode is defined in Section 76-1-401. Also, the following time periods must have passed from the date the petitioner was convicted or released from incarceration, probation or parole, whichever occurred last:

Offense

Time from date petitioner was convicted or released from incarceration, probation or parole, whichever occurred last

Misdemeanor conviction of Subsection 41-6a-501(2)
Felony conviction of Subsection 58-37-8(2)(g)
10 years
Felony 7 years
Class A Misdemeanor 5 years
Class B Misdemeanor 4 years
Other Misdemeanor or Infraction 3 years

A person is entitled to expunge records of all crimes for which the person has been pardoned by the Utah Board of Pardons and Parole.


Certificate of Eligibility

Before filing a Petition to Expunge Records, the petitioner must obtain a Certificate of Eligibility (publicsafety.utah.gov) issued by the Bureau of Criminal Identification (BCI - publicsafety.utah.gov) of the Utah Department of Public Safety. The petitioner applies to BCI for the certificate. There is a fee to apply for the certificate. It can take a substantial amount of time for BCI to issue the certificate.

BCI performs a records check to determine whether a petitioner is eligible to expunge criminal records. The records check may include records that have been previously expunged. If the petitioner meets all of the criteria for eligibility, BCI will issue a certificate of eligibility to the petitioner. The petitioner should file the Petition to Expunge immediately after receiving the Certificate of Eligibility because the certificate is valid for only 90 days from the date it is issued. If BCI cannot obtain a disposition for an arrest, BCI may issue a special certificate giving determination of eligibility to the court.

There is a fee to apply for the certificate and a separate fee to issue the certificate. The application fee must be paid at the time the petitioner submits the application, and the issuance fee must be paid before BCI will issue the certificate. There is an application fee, but not an issuance fee, for a petitioner who was not convicted of the crime, unless the charges were dismissed under a plea in abeyance agreement or a diversion agreement.


Petition to Expunge Records

The petitioner must attach to the petition the original Certificate of Eligibility with the Petition to Expunge Records. The petitioner should file the petition immediately after receiving the Certificate of Eligibility because the certificate is valid for only 90 days from the date it is issued. The petitioner must file the petition in the court in which the criminal case was filed (district court or justice court). If no criminal case was filed, the petitioner files in the district court of the county in which the petitioner was arrested. There is a fee to file the petition, unless it is waived by the court.


Serving the Petition

The petitioner must serve the petition and certificate of eligibility on the office of the prosecutor who handled the criminal case. If no criminal case was filed, the petitioner must serve the petition and certificate on the county attorney or district attorney of the county in which the petitioner was arrested.


Recommendation or Objection by the Prosecutor or Victim

The prosecutor notifies the victim of the crime that a Petition to Expunge Records has been filed. The prosecutor and the victim may file a statement objecting to the petition or making a recommendation within 30 days after they have received the petition. If the prosecutor or victim files a statement, they must serve the documents on the petitioner. The petitioner may file a reply within 15 days after receiving the statement. If the crime had no victim, only the prosecutor has the opportunity to file a statement.


Response by Division of Adult Probation and Parole

The court may order the Division of Adult Probation and Parole (AP&P) to prepare a written response about the petition. AP&P will file the response, which will include the reasons probation was terminated, and whether the petitioner has completed all requirements of sentencing, probation or parole. AP&P will serve the response on the petitioner, the prosecuting attorney and the victim. The petitioner may file a reply to the AP&P response within 15 days after receiving it.


Hearing

If the prosecutor or victim files a statement, the court will hold a hearing at which all parties will have an opportunity to present information and arguments. If neither the prosecutor nor the victim files a statement, the court may conduct a hearing on its own motion or may grant the petition without a hearing. If the court is to enter an order without a hearing, the court must wait at least 60 days from the date the petition was filed to allow the prosecutor and victim time to file their statements.


Order to expunge records

If the court finds by clear and convincing evidence that:

  • the petition and certificate of eligibility are sufficient; and that
  • the statutory requirements have been met; and that
  • expunging the records is not contrary to public interest,

then the court will grant the petition and enter an order to expunge the petitioner's records of arrest, investigation, detention, or conviction held by any state, county, or local government entity.

The expungement order does not:

  • affect any administrative proceedings of which the petitioner had notice before issuance of the order;
  • affect the enforcement of an order issued by an administrative body before issuance of the expungement order; or
  • remove any evidence relating to the petitioner which the administrative body has used or may use.

Certified Copies of the Order

If an agency does not receive the expungement order, they are not required to seal their records. Petitioner must deliver the order to any agencies with relevant records. Petitioner should get as many certified copies of the order as there are agencies with records. Petitioner should get the certified copies as soon as the order is entered and before the case is sealed. Petitioner can get copies of the order after the case is sealed only by a petition to unseal the record. There is a fee for each certified copy, unless it is waived by the court.

Petitioner may pick up certified copies of the expungement order at the courthouse or have them mailed. To have certified copies mailed, send a request for a specific number of copies to the clerk of the court and include an 9" x 12" self-addressed envelope with sufficient return postage. (Note that large envelopes and multiple copies require additional postage.)


Sealing Records

Expunged records are not necessarily destroyed. Expunged court records are placed in an envelope which is securely sealed. The clerk records the case number and record classification on the envelope and inscribes across the sealed part of the envelope the words "Not to be opened except upon permission of the court." The court record might eventually be destroyed in accordance with the court's Record Retention Schedule. An agency receiving the expungement order must seal or otherwise restrict public access to the relevant records in its possession or expunge all references to the petitioner's name in the records. The court cannot control destruction of agency records.

The court in which the order is entered will automatically seal all related court records. If anyone inquires about the expunged record, the clerk will respond as though the arrest or conviction did not occur. To have the records of a government agency sealed, the petitioner must deliver a certified copy of the expungement order on the agency. These might include:

  • the arresting agency (city police; county sheriff, Utah Highway Patrol);
  • the booking agency (county jail);
  • the Department of Corrections
  • BCI (Attach a copy of the Certificate of Eligibility to the expungement order delivered to BCI.); or
  • Driver License Division.

There may be other agencies with records. If an agency does not receive the expungement order, they are not required to seal their records. If requested, the clerk will provide addresses for agencies within the jurisdiction of the court. For other agencies, the petitioner must find the correct address. Some agencies that might have records are listed in the next section.

BCI will provide written directions to the petitioner along with a list of agencies known to be affected by the order. The petitioner does not have to deliver a copy of the expungement order to the Federal Bureau of Investigation; BCI will forward a copy of the order to the FBI.

Unless otherwise provided by law or ordered by the court to respond differently, a government agency or official who has received an expungement order will respond to an inquiry as though that arrest or conviction did not occur. Unless ordered by a court to do so, a government agency or official who has received an expungement order may not divulge information identifying the petitioner. A person who has had records expunged may respond to an inquiry as though that arrest or conviction did not occur.


Agency Contact Information

To have the records of a government agency sealed, the petitioner must deliver a certified copy of the expungement order on the agency. The following links are to webpages that list some agencies which may have records.


Continued Use of Sealed Records

After sealing, BCI continues to index and maintain all expunged records of arrests and convictions, but the records will not be released to the public. BCI will not divulge any information contained in the expunged records to any person or agency without a court order, unless authorized by statute to do so. Upon request, the following organizations may receive information contained in expunged records:

  • the Board of Pardons and Parole;
  • Peace Officer Standards and Training;
  • federal authorities, unless prohibited by federal law;
  • the Division of Occupational and Professional Licensing; and
  • the State Office of Education.

When considering whether to issue a permit to carry a concealed firearm, BCI may use the information in expunged records in determining whether the applicant or permit holder has been or is a danger to self or others.

Expunged records may be released to or viewed by the petitioner, but the petitioner must first obtain a court order to unseal the record. Expunged records may also be released to or viewed by parties to a civil action arising out of the incident, including a law enforcement officer in the officer's defense of a civil action. These parties must first obtain a court order to unseal the record. The information must be kept confidential and used only in the civil action.

If the petitioner is later charged with a felony, the state may petition the court to open expunged records. A court may order expunged records to be opened and admitted into evidence for sentencing. The expunged records are confidential and are available for inspection only by the court, parties, counsel for the parties, and any other person authorized by the court. At the end of the proceeding, the court will order the records resealed.


District and Justice Court Forms


Related Information



Page Last Modified: 7/11/2013
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