Burden of Proof - Utah
Expungement Attorney
Question: Who
bears the burden of proof to in a petition to expunge criminal records
in Utah?
Answer:
Utah
expungement law has changed from time. Previous versions of Utah's
expungement statute provided a presumption that if a person qualified
for a
certificate
of eligibility, then the court should grant the
requested expungement order unless the prosecutor could demonstrate
that
expungement was contrary to the public interest.
Current
expungement law (as of 2014) has shifted the burden of proof on
an expungement petition. Under Utah Code section 77-40-107, the
petitioner (person seeking the expungement) must demonstrate by "clear
and convincing evidence" that it is "not contrary to the interest of
the public to grant the expungement." Unless this standard is met, the
court cannot grant the expungement. The standard of "clear and
convincing" evidence is the second highest standard of proof imposed
under Utah law.
This shift in the burden of proof was challenged in the Utah Court of
Appeals case of
Horgan
v. State, 2012 UT App 216. In this case, the Court of
Appeals approved the burden shift, and affirmed the expungement statute
that requires the petitioner to prove by clear and convincing evidence
that the expungement is not contrary to the public interest.
While the standard is high, the benefits of having an expungement are
significant. If that standard is met and the court grants the
expungement, then the petitioner is thereafter allowed to "respond to
any inquiry as though the arrest or conviction did not occur. (See Utah
Code section 77-40-108.)
Finding a Utah Expungement Attorney in Salt Lake City
With a practice based in Salt Lake City,
criminal defense attorney
Stephen
Howard provides expungement services to clients throughout Utah. He has
been successful in obtaining expungement orders for clients with
serious felony conviction, multiple misdemeanor convictions, dismissed
cases, and un-charged arrest records.
In
addition to expungement petitions, Mr. Howard has assisted clients in
restoring expungement eligibility by obtaining
402
reductions in a variety of
felony
and
misdemeanor
cases. He works closely with clients to prepare and present their
expungement petitions to the court in the best light.
Contact us today to
arrange for an initial consultation with Stephen Howard.
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