Review, Reconsideration, and Appeal Processes in Utah
The government makes mistakes. Sometimes.
Utah’s Bureau of Criminal Identification (BCI) is responsible for making an initial determination on expungement eligibility. It is not a discretionary determination. Instead, BCI is bound by eligibility rules established in statute.
The best defense attorneys challenge the status quo through ethical advocacy both in and out of the courtroom.
If you believe that your application for a certificate of eligibility has been incorrectly denied, there are ways to challenge that denial.
The following process description is based on a real case we handled. Details have been modified or omitted in order to maintain client confidentiality.
Initial Application for a Certificate of Eligibility
The first step in the expungement process is a simple fill-in-the-blank form provided by BCI. It requires just basic information like your name, date of birth, contact information, etc., along with fingerprints.
The best attorneys understand that the effects of a criminal charge extend beyond the courtroom.
Before submitting the application, we review court records from Utah’s district courts and justice courts to identify relevant convictions that may affect eligibility.
Expungement Eligibility for Convictions – Utah Code 77-40a-303
BCI’s initial eligibility decision for convictions is based on the number of cases with convictions, the level of the charges involved, the length of time that has passed, and the type of charge involved. Most denials are based either on having too many convictions or on having a conviction for a crime that is “not eligible” for court-ordered expungement under the statute.
Most sex-related crimes fall into the “not eligible” category, but not all of them. For some offenses, the difference between expungeable and non-expungeable can be based either on the level of offense, or on the number of times a person has been convicted of committing that specific offense. Unlawful sexual activity with a minor is an example of one such charge.
A good defense strategy should be designed to help you achieve your goals.
Utah Code 76-5-401 provides penalties that range from more serious felony charges down to the class B misdemeanor level, based on the ages of the individuals involved and on the age difference between them.
A conviction for unlawful sexual activity with a minor at the felony level is not eligible for expungement through the Utah courts. However, if the conviction is a lower-level misdemeanor, it may be expungeable if all of the other eligibility requirements are met. The general rule here is that if the conviction requires registration as a sex offender, then it is not eligible for expungement even if the registration period has expired.
REAL CASE APPLICATION: We checked our client’s records, assessed the number, level, and nature of any convictions, and determined that as a matter of law he was eligible for expungement.
The right defense attorney can make the difference you need.
In this instance, the client’s criminal record contained only a single conviction for a class B misdemeanor charge on unlawful sexual activity with a minor. He had long ago completed probation and had no subsequent arrests and no other pending charges.
Class B Misdemeanor – Eligible for Expungement
The charge, at the class B misdemeanor level, did not require registration – either at the time of the original conviction or under any of the more recent revisions to the registration statute.
REAL CASE: We advised the client that he was eligible for expungement, and began the process.
Notice of Denial from BCI – “Not Expungeable”
BCI does not have discretion in determining eligibility. They do not consider mitigating factors or character reference letters. It is a simple black-and-white binary determination. Yes, or no.
REAL CASE: To our surprise, BCI responded to the initial application with a notice of denial. The reason given was that the offense was “not expungeable.”
We reviewed court records and double checked the eligibility statutes. We were right. BCI was wrong.
Administrative Appeal and Review
The initial appeal process, requesting administrative review of the decision, is relatively simple. A written request is submitted to BCI that includes a legal and factual explanation of why the original decision made by BCI was incorrect.
There is no hearing. Just a written request to review and reconsider. BCI will review the information submitted and render a decision.
If BCI reverses its original decision, then a certificate of eligibility can be issued. If BCI confirms itself, that is the end of the process with BCI. The next step involves de novo review by the district court.
REAL CASE: We submitted a concise explanation of our client’s position, citing the relevant eligibility rules and registration statutes. BCI responded with a brief reply stating their conclusion. BCI said that the charge was not expungable. (Spoiler alert: BCI was wrong.)
Filing an Appeal in the District Court
Challenging the result of BCI’s administrative review/appeal process is done by filing a formal “complaint” and a new case in the district court. It is different than a regular criminal appeal. Instead of looking for factual or legal errors made in the administrative process, the district court conducts a “de novo” hearing, starting from square one.
Unlike a criminal prosecution, this de novo review places our client in the position of “plaintiff” with the State of Utah as the defendant. The Attorney General’s office represents the State. As plaintiff, our client bears the burden of proof and persuasion.
REAL CASE: We drafted the complaint, outlining the issues and legal basis for our client’s position. We filed the case, and served notice on the Attorney General.
Within a matter of days, we received a response from the AG’s office. The attorney assigned to the case said that they had reviewed our court filings, and they agreed with our position.
A quick resolution, a phone call to BCI, and the certificate of eligibility was issued. We filed a motion to dismiss the district court matter, as the case was now moot.
(Of note, an attorney cannot ethically advance a position in court that the attorney does not have a good-faith basis for asserting. Thus, when an attorney knows that the opposing party is correct in their assessment of the law, the attorney should acknowledge that fact to the court.)
In this case, the appeal to the district court was much simpler than what would normally be expected. It is more common that such appeals involve close questions of law, or disputed facts.
Legal Advice and Attorney Representation
The processes involved in expungement and administrative review can be complex. Having effective representation sound legal advice from an experienced attorney can be critical to achieving success. We are here to help.
