Criminal convictions, records of arrest, or even court records showing a dismissed charge can affect your life in many ways. Obtaining a court-ordered expungement of your Utah criminal records can open doors, by allowing you to answer many questions as though the arrest, charge, or conviction had never occurred.
Serving clients in Davis County, criminal attorney Stephen Howard has successfully obtained expungements for clients in a wide variety of cases. Call us today. We can often tell you right over the phone whether you are eligible for expungement.
Application for Certificate of Eligibility
If you are seeking an expungement of a criminal case, arrest, or conviction in Davis County, the expungement process begins with an application for a certificate of eligibility. The initial application must be submitted to the Utah BCI (Bureau of Criminal Identification). In processing the application for a certificate of eligibility, BCI is required by statute to perform a search of court records in Utah as well as criminal records from other state and federal sources.
Eligibility for expungement is determined based on the number of convictions, the nature of the conviction, the level of conviction, and the length of time since the last event in the case (dismissal, termination of probation or parole, or release from incarceration). In circumstances where an arrest occurred, but no criminal charge was filed with a court, eligibility requires either that the statute of limitations period has run or that the prosecuting agency with jurisdiction over the case issue a letter formally declining to prosecute the case.
Petition for Expungement in Davis County
Obtaining a certificate of eligibility for expungement does not complete the expungement. Instead, a formal petition for expungement must be filed with the appropriate court. In cases where a criminal charge was filed, the expungement petition normally will be filed with the court where the original case was filed. In cases where no criminal case was filed, the expungement petition should be filed in the district court for county in which the offense was originally alleged to have been committed.
In Davis County, most district court expungements will be filed through the Farmington Department of the Utah Second District Court. But some district court expungements will be heard in the Layton or Bountiful departments of the district court. For justice court cases, the Davis County Justice Court handles the largest number of cases. However, if the case was originally heard in a city justice court, the expungement will normally have to be filed in that city justice court.
The certificate must be filed along with the petition, and serves as the necessary confirmation for the court that the statutory eligibility requirements have been met. In addition to filing the certificate of eligibility, the petition must contain information or evidence sufficient to establish by clear and convincing evidence that granting the expungement is not contrary to the public interest. This evidence can include information directly from the petitioner as well as information from other sources, including character reference letters, proof of employment, school records, certificates, licenses, etc.
If the prosecutor agrees to the expungement, a judge will often sign the expungement order without holding a formal hearing. However, if either the prosecutor or victim files an objection to the proposed expungement, the petitioner is entitled to request a hearing on the expungement petition.
Utah Expungement Orders
Once a judge in Davis County signs the expungement order, the court clerks should automatically begin the process of sealing the court’s records relating to the criminal case. However, it is critical to understand that the court clerks can only seal the court’s records. Court clerks do not have authority to expunge the official BCI criminal history, police records, prosecutor records, or records relating to the case that are in the possession of or under the control of other government entities.
In order to complete the expungement process, a certified copy of the court’s expungement order must be delivered to each government agency that has records relating to the criminal case. Once a certified copy of the court order is received, each government agency will then expunge or seal their records.
The five key elements that determine eligibility for expungement are: 1) the nature of the charge; 2) the disposition of the case; 3) the number of convictions; 4) the level of any convictions; and 5) the length of time that has elapsed since the case was finally closed. While eligibility determination may seem like a complex question, an experienced expungement attorney can often tell you right over the phone if you should be eligible for expungement.
In calculating the number of convictions, most minor traffic offenses will not be considered. However, certain traffic-related offenses (even some that will not normally show on a criminal history report) can count against a person for expungement eligibility. Some of the more common of these traffic-related offenses include driving on a suspended license, driving with expired registration, driving with no insurance, DUI, driving with measurable metabolite, and impaired driving.
There are also a number of offenses for which a conviction cannot be expunged. These include violent felonies, felony DUI convictions, automobile homicide, certain registerable sex offenses, and any first-degree felony.
Restoring Expungement Eligibility and Alternatives to Expungement
For some people seeking an expungement in Davis County, an application for a certificate of eligibility may be denied due to having too many convictions or having a level of conviction that is too high. In such circumstances, there may be a way to restore expungement eligibility. Even if expungement eligibility cannot be restored, a pardon issued through the Board of Pardons and Parole may provide an alternative to the expungement process.
A “402 reduction” can provide a means of restoring expungement eligibility in many circumstances. For example, if the certificate of eligibility is denied because a person’s record contains a violent felony, the 402 reduction process may sometimes be used to restore expungement eligibility by reducing that felony to the misdemeanor level. In cases where the certificate application is denied because a person’s record contains too many misdemeanor convictions, a 402 reduction may be used to reduce certain misdemeanor convictions to the infraction level. (Infraction convictions are not considered by BCI in determining expungement eligibility.)
When the 402 reduction process will not work to restore a person’s expungement eligibility, there is still an alternative method of clearing a criminal record that should be considered. In cases where a substantial period of time has passed since a person has been involved in criminal activity, and if the person can successfully demonstrate their rehabilitation to the Board of Pardons and Parole, a pardon can be granted.
Previous versions of Utah’s expungement statutes provided only that a pardon restored the person’s eligibility for expungement. But once the pardon was received, the person was still required to file an expungement petition in the courts, where a judge may or may not grant the expungement. Under more recent versions of Utah’s expungement statutes, the pardon serves essentially the same purpose as a court-ordered expungement. If the pardon is granted, the courts must treat the pardoned case in the same way that it would treat an expunged case.