Utah Expungement Attorney Salt Lake

Are there exceptions to an expungement order that allow the use of expunged records?

The Utah Expungement Act allows access to or use of expunged records in only very limited circumstances. It is important to understand these exceptions. Consultation with an experienced Utah criminal attorney is highly recommended. But this page presents some basic information regarding these exceptions.

The Utah Expunjgement Act defines the term “expunge” as meaning “to seal or otherwise restrict access to the petitioner’s record held by an agency when the record includes a criminal investigation, detention, arrest, or conviction.” Utah Code §77-40-102(8). But the purpose and effect of an expungement under Utah law covers more than the mere sealing of records.

The current Utah Code §77-40-108(2) allows a person who has received an expungement “respond to any inquiry as though the arrest or conviction did not occur.” The Utah appellate decisions in Thompson v. Department of Treasury and Jones opinions support the position that the “any inquiry” language of the statute indicates an intent by the legislature to provide a complete expungement, legally erasing the conviction. Still, records of the criminal case continue to exist even after the expungement order is entered.  But access to these records is severely restricted.

Utah Code of Judicial Administration, Rule 4-205(4)(B) governs the court’s obligations in regard to court records of expunged cases, and provides in relevant part as follows:

“Upon entry of an order of expungement, the clerk of the court shall:
(i) obliterate or destroy all reference to the expunged portion of the record in the paper copy of the index and maintain a separate index of expunged records not available to the public;
(ii) cover, without obliterating or destroying, all entries in the paper copy of the register of actions, including case identifying information other than the court docket number; and
(iii) place an entry in the computer record that restricts retrieval of case identifying information and the register of actions to court personnel with authorization to review such information. The security restriction shall not be removed except upon written order of the court."

The practical effect of this rule is that, absent a court order, to a person seeking court records of an expunged case, it will appear as though the case never existed. The expunged records may in fact continue to exist. But expunged court records are kept separate and apart from regular court records in a way that makes it appear that such records do not exist.

Other government agencies receiving an expungement order are required to “expunge the petitioner’s identifying information contained in records in its possession relating to the incident for which expungement is ordered,” and further “may not divulge information or records which have been expunged” absent a court order or in accordance with statutory exceptions found in Utah Code §77-40-109(2). Utah Code §77-40-108(4) and (5).

The exceptions included under Utah Code §77-40-109(2) deal mostly with access to expunged records for purposes relating to state licensing, police officer certification, and applicants for judicial office. Specifically, the exceptions include:

- the Board of Pardons and Parole;
- Peace Officer Standards and Training;
- federal authorities, unless prohibited by federal law;
- the Department of Commerce;
- the Department of Insurance;
- the State Office of Education; and
- the Commission on Criminal and Juvenile Justice, for purposes of investigating applicants for judicial office.

But release of expunged records to such agencies is limited, and further release of expunged records obtained by such agencies is generally prohibited. Utah Code §77-40-109(2)(c). Unauthorized release of expunged records is a class A misdemeanor, punishable by up to one year in jail. See, Utah Code §77-40-112 and §76-3-204.

Utah Code §77-40-109 also provides exceptions under which expunged records may be viewed or released, including situations in which the petitioner was subsequently charged with a felony crime or for judicial sentencing proceedings in subsequent criminal cases.

The 1980 changes to Utah expungement law provided only a limited expungement, allowing a petitioner to reply only to questions from an employer as though the conviction did not occur. But the current Expungement Act provides what should be considered a complete expungement, with only limited and narrowly defined exceptions.

Finding a Utah Attorney for Expungements

The procedural steps for an expungement in Utah must be followed precisely. And the statutes governing expungement place a high burden of proof on the petitioner. The assistance of an experienced criminal attorney can be vital to success.

As a Utah criminal attorney, Stephen Howard has assisted clients in expunging criminal records including serious felony and multiple misdemeanor charges. Contact us today to arrange for an initial consultation. We can often tell you right over the phone if you are eligible for expungement.

RELATED CRIMINAL DEFENSE QUESTIONS

Is a Utah expungement order considered a "complete" expungement?
Who bears the burden of proof in a Utah expungement petition?
Are there exceptions that allow the use of expunged criminal records?
What is the effect of an expungement in Utah?