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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

Utah Criminal Charges Retail TheftStep 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.


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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Serving Salt Lake, Davis, Weber, Utah, Cache, Tooele, Summit, Box Elder, and Wasatch Counties, and all of Utah.

Attorney Stephen Howard practices as part of the Canyons Law Group, LLC and Stephen W. Howard, PC.

Offices in Salt Lake and Davis Counties
560 South 300 East, Suite 200, Salt Lake City, UT 84111
952 S. Main St., Suite A, Layton, UT 84041

Call now to arrange for a confidential initial consultation with an experienced and effective Utah criminal defense lawyer.

In Salt Lake City, call 801-449-1409.
In Davis County, call 801-923-4345.

Stephen W. Howard, PC

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