Ogden DUI's - Refusal to Take Breath Test
Can I refuse to take a breath test if I am pulled over for DUI in Ogden?
There
are multiple questions that should really be addressed here. The first
is CAN you refuse to take a DUI breath test. But another, perhaps more
imporatant, question is SHOULD you refuse the test. Understanding the
consequences of your choices is key to making the best decision.
Implied Consent
A criminal record
expungement can
allow you to put past mistakes behind you and restore
opportunities that have been unavailable because of a criminal
conviction.
Criminal defense
attorney Stephen Howard helps clients
expunge their
misdemeanor
and
felony
records in Ogden and throughout Utah. For
clients living out-of-state, we can help with Utah expungements
- usually without requiring any travel to Utah for court hearings.
Call us today. Usually, we are able tell you right over the
phone
whether you qualify for an expungement and help you start the
expungement process.
Starting the Expungement Process - BCI Certificate of
Eligibility

Step
one of the Utah expungement process is obtaining a certificate of
eligibility from the Utah Bureau of Criminal Identification (BCI). BCI
cannot issue an expungement order, but instead only determines if you
meet the basic statutory eligibility requirements (i.e., whether you
have too many convictions, convictions that are too recent, or if the
level of your convictions is too high). BCI will notify you with a
letter either denying the application or explaining which charges or
cases are eligible for expungment. If you choose to proceed with a
conviction expungement, an additional fee must be paid to BCI for the
issuance of the actual certificate of eligibility.
(IF YOU
RECEIVE A LETTER FROM BCI DENYING A CERTIFICATE OF ELIGIBILITY FOR
EXPUNGEMENT, THERE MAY BE OPTIONS FOR RESTORING ELIGIBILITY OR FOR
BYPASSING THE EXPUNGEMENT PROCESS THROUGH A PARDON. CONTACT US TO LEARN
HOW WE CAN HELP.)
Filing a Petition for Expungement in Utah Courts
The
certificate of eligilbity provides proof to the court that you are
eligible to file a petition for expungement. But the certificate itself
only opens the door. The petition for expungement is a formal request
that the court
order the expungement (or sealing) of your criminal records. The
certificate of eligibility must accompany the petition, and the
petition must set forth facts that establish clear and convincing
evidence that expungement of the criminal records is not contrary to
the public interest. Unlike the original criminal case, the burden of
proof (or responsibility to convince the court) rests with the
petitioner (defendant).
In
most cases, the petition must be filed in the same court where the
original charges were filed. (Exceptions include where a
prosecutor declined to file charges and when a case was appealed from a
justice court to the district court.) If expungement is sought for just
an arrest record (where no criminal charges were filed), the
expungement petition is generally filed with the district court having
geographic jurisdiction over the matter.
If the prosecutor
or victim objects to the expungement, the petitioner is entitled to
request a court hearing to determine whether the expungement should be
granted. The court may also set a hearing on the matter sua sponte (on
its own, with a request for a hearing from either party). If a hearing
is required on an expungement case, the petitioner should be ready to
call witnesses to testify in support of the petition and make arguments
sufficient to persuade the court.
Delivering the Court Order for Expungement in Utah
One
of the most critical steps involved in the expungement process is the
delivery of the court's expungement order to the various government
agencies that were involved in or have records of the case. Even after
the petition for expungement is granted and the formal order is signed
by the court, the process is still not complete. The court order must
be delivered to each of the government agencies that hold and maintain
records of criminal case information (police, prosecutor, BCI etc.).
Until they receive a certified copy of the expungement order,
government agencies can continue to make information about the case
available to the public.
Unlike the
402
reduction process
(where BCI automatically updates its database from the court's computer
docketing system), the court does not provide formal notification of
the expungement order to BCI. The petitioner must deliver
certified copies of the expungement order to all government
agencies that possess any records relating to the expunged matter. Once
these agencies receive the order, the records are then sealed and are
unavailable to the public or to other government agencies (under most
circumstances). If the order is not delivered to them, the agency can
still respond to requests for records and information as though the
expungement was never completed.
Requirements for Expungement Eligibility in Utah
Under
the Utah Expungement Act, there are three main issues involved in
determining eligibility for expungement: 1) the nature and level of the
offense; 2) the number of convictions; and 3) the length of time that
has passed. An analysis of all of these factors is required to
determine expungement eligibility.
Expungement Eligibility Waiting Periods
For
a case that has been dismissed with prejudice or dismissed as part of a
plea in abeyance agreement, a 30-day waiting period is required for
expungement eligibilty. A conviction for most felonies requires a
7-year wait. For class A
misdemeanors, a 5-year wait is required; class
B misdemeanors require a 4-year wait; and class C misdemeanors and
infractions require a 3-year wait.
Some convictions involve
exceptions to the normal waiting period. For example, a DUI conviction
requires a 10-year waiting period. The waiting period for expungement
eligibility for a conviction only begins to run after the last event in
the case occurs (generally the end of probation or the completion of
any jail or prison sentence - whichever comes last).
For
cases where a person was arrested or cited, but no formal criminal
charges were filed in court, there two options. You can either wait for
the statute of limitations period to run or you can request a
declination letter from the prosecuting agency responsible for
screening the case. A declination letter is a formal acknowledgement
from the prosecuting agency that they have reviewed the police reports
or other information relating to the arrest or citation and determined
that no charges will be filed. A prosecuting agency is not required to
issue a declination letter.
Nature and Number of Convictions
The
offense level of a conviction will affect eligibility for expungement.
For most kinds of charges, the limits will make a person ineligible for
expungement:
- two or more felony convictions;
- three convictions involving two or more class A
misdemeanors;
- four convictions involving three or more class B
misdemenaors; or
- five convictions for anything higher than an infraction
(excluding minor traffic offenses, as defined in the expugement code)
The
above-noted limits relate to "single criminal episodes" - a concept
generally interpretted as charges coming from a single case. In other
words, if a person has three felony convictions in a single case but
has no other criminal convictions, they can still be eligible for
expungement. But if there are two separate cases each with one felony,
the person is disqualified from petitioning for expungement.
Certain
exceptions to the above-noted limits also apply. Convictions involving
drug possession (not including distribution or possession with the
intent to distribute) are analyzed separately and are subject to higher
limits (meaning that you can have more convictions expunged if certain
cases involve only drug possession charges). Other charges are simply
barred from expungement, even when a person has only once been
convicted. These charges include capital and first-degree felonies,
violent felonies, felony DUI's, felony automobile homicide, and
registerable sex offenses.
Alternative Remedies
If you
have applied to BCI for a certificate of eligibility for expungement
and have been denied, do not automatically give up hope. There are
alternative remedies that may be pursued which can sometimes either
restore eligibility for expungement or even bypass the expungment
process altogether.
For some people, problems arising from
their criminal record are based only on the level of the
conviction. For example, some employers will not consider a
person
for hire or promotion if they have a felony conviction on their record.
In such cases, even where expungement eligibility has been denied, a
402 reduction motion may provide an avenue for reducing a felony
conviction to the misdemeanor level.
A 402 reduction can
also be used to restore eligibility for expungement in some situations.
Lowering the level of a conviction (sometimes to the level of an
infraction) will affect the calculations used by BCI to determine
eligibility for expungement. If a sufficient number of convictions can
be reduced, expungement eligibility can be restored.
In
cases where expungement eligibility cannot be restored, a pardon offers
an alternative method for clearing a person's criminal record. The
Board of Pardons and Parole has jurisdiction over the pardon process.
By policy, the Board will not consider a pardon for a person who is
still eligible for expungement. But if a person is NOT eligible for
expungement, the Board can exercise its discretion and still order a
pardon (which has essentially the same effect as an expungement) in
cases where the Board determines that the applicant is deserving.
Expungement Attorney for Ogden, Utah
If
your criminal record continues to cause problems for you even though it
has been years since you were last in trouble, an experienced criminal
lawyer can help you with the process of obtaining an expungement, 402
reduction, or pardon.
Contact
us now to see
how
we can help you.
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