Eligibility to Expunge Police Records – No Charges Filed
Question: I was arrested on a misdemeanor, but charges were not filed. I applied to BCI for a certificate of eligibility for expungement, and received a letter saying that I had to wait two years before I would be eligible for expungement. Why?
Answer: Eligibility for expungement of criminal case records not involving a conviction is governed by Utah Code 77-40a-302. This includes police reports, arrest records, and jail booking records.
The best defense attorneys ask questions that police don’t.
Under this section of the Utah Expungement Act, a person is eligible for expungement if:
- the criminal court case has been dismissed with prejudice;
- the statute of limitations period for the charge has run and no charges have been filed; or
- the case has been screened by the office of the prosecuting attorney having jurisdiction over the matter and a final decision to not file charges has been made.
If BCI has denied your application for a certificate of eligibility for expungement on a misdemeanor charge that was not filed, it is likely that the denial is based on the statute of limitations period. Two options to consider:
- wait for the limitations period to expire and reapply for a certificate of eligibility; or
- request certification from the prosecution office that the case has been screened an a final decision not to prosecute has been made.
The second option can involve some risk in bringing the prosecutor’s attention to a matter that they have not acted on. Consultation with an experienced criminal attorney to determine which strategy is best for your situation is strongly recommended.
A good attorney will talk with you about how your case can affect your job, education, family, and future.
Waiting for the Limitations Period to Expire
Most misdemeanor charges in Utah have a limitations period of two years. In most cases, this period will begin to run from the time of the alleged offense. Thus, if no criminal court case is filed and if the prosecutor is unwilling to certify that a final decision has been made not to file charges, then in two years from the time of the alleged offense BCI should be able to issue a certificate of eligibility for expungement.
Felony charges have a longer statute of limitations period than most misdemeanors. Some of the most serious felony charges (e.g. murder, rape, and sexual offenses) have no limitations period and can be filed at any time. The most common limitations period for a felony is four years.
If the limitations period has run with no court case being filed, BCI should issue a certificate of eligibility. In cases involving an unfiled charge with no limitations period, before issuing a certificate of eligibility BCI may require a letter from the prosecution certifying that the case has been reviewed and a final decison not to file a court case has been made.
A good defense strategy should be designed to help you achieve your goals.
Requesting Certification from the Prosecutor
In order to achieve expungement eligibility before the statute of limitations has run or in cases involving charges with no limitations period, it may be necessary to seek certification from the prosecutor that no charges will be filed. It is not sufficient to show only that no charge have been filed. Instead, the prosecuting attorney with jurisdiction over the case must certify that the case has been screened and reviewed, and that a final decision has been made not to file charges.
Before making a decision to seek this certification from the prosecutor, it should be understood that taking this action will bring the case to the prosecutor’s attention and could increase the risk that criminal charges will be filed. In such circumstances it may be better and safer to wait for the statute of limitations period to run.
