Burden of Proof and Court Hearings for Expungement
Without the stipulation or consent of the prosecutor on a petition for expungement, the court may require a formal hearing to determine whether the expungement should be granted. This page presents information on the burden of proof in a Utah expungement petition.
Who carries the burden of proof in a petition for expungement?
The burden of proof in an expungement is on the petitioner. Utah Code §77-40-107(8)(d); Horgan v. State, 2012 UT App 216 ¶¶2-4, 284 P.3d 722. Unless the petitioner can show by “clear and convincing evidence” that it is “not contrary to the interests of the public to grant the expungement,” an expungement can not be granted. Id.
This is a reversal from older versions of Utah’s expungement statutes, which previously provided that the obtaining of a certificate of eligibility essentially created a presumption that the expungement should be granted. The expungement petition would only be denied if the prosecutor could meet the burden of proving by clear and convincing evidence that the requested expungement was contrary to the public interest. By inserting the word “not” and shifting the burden of proof
to the defendant, the legislature greatly increased the requirement for obtaining an expungement.
The standard of “clear and convincing evidence” is second only under Utah law to the “proof beyond a reasonable doubt” standard required for a criminal conviction. See, Essential Botanical Farms v. Kay, 2011 UT 71, ¶21 (Utah 2011). Utah courts have stated that the “clear and convincing evidence” standard is
required when the interests at stake are “particularly important.” Id.
Thus, the statute imposes a significant burden on a petitioner to show that it is “not contrary to the interests of the public to grant the expungement.” Utah Code §77-40-107(8)(d). Only if that standard is met can the records of the petitioner’s criminal arrest and conviction be expunged. And only if that standard is met will the petitioner thenceforward be allowed to “respond to any inquiry as though the arrest or conviction did not occur.” Utah Code §77-40-108(2).
Finding a Utah Lawyer for Expungements
Simply obtaining a certificate of eligibility for expungement from Utah BCI does not guarantee that the court will grant the expungement petition. Having the assistance of an experienced criminal attorney can help give you the best chance of successfully obtaining an expungement of your criminal record.
If you are considering filing for expungement in Utah, contact us for an initial consultation. We can often tell you over the phone whether you are eligible for expungement. And if you are not eligible for expungement, we can discuss alternative methods of clearing your criminal record such as a pardon or 402 reduction.
