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Expungement Eligibility on Unfiled Charges in Utah

Question: I was arrested on a misdemeanor, but charges were not filed. I applied to BCI for a certificate of eligibility for expungment, and received a letter saying that I had to wait two years before I would be eligible for expungement. Why?

Answer: Eligiblity for expungement of criminal case records not involving a conviction is governed by Utah Code 77-40-104. Under this section of the Utah Expungement Act, a person is eligible for expungement of records not involving a conviction if: 1) the criminal court case has been dismised with prejudice; 2) the statute of limitations period for the charge has run and no charges have been filed; or 3) the case has been screened by the office of the prosecuting attorney having jurisdiction over the matter and a final decision not to file charges has been made.

If BCI has denied your application for a certificate of eligiblity for expungement on a misdemeanor charge that was not filed, it is likely that the denial is based on the statute of limitations period. You can simply wait for the limitations period to expire and reapply for a certificate of eligibility or you may attempt to seek certification from the prosecutor that the case has been screened an a final decision not to prosecute has been made. Consultation with an experienced criminal attorney to determine which strategy is best for your situation can be an important part of the expungement process. Contact us today to see how we can help.

Waiting for the Limitations Period to Expire

Most misdemeanor charges in Utah have a limitations period of two years. In most cases, this period will begin to run from the time of the alleged offense. Thus, if no criminal court case is filed and if the prosecutor is unwilling to certify that a final decision has been made not to file charges, then in two years from the time of the alleged offense BCI should be able to issue a certificate of eligibility for expungement.

Felony charges have a longer statute of limitations period than most misdemeanors. Some of the most serious felony charges (e.g. murder, rape, and sexual offenses) have no limitations period and can be filed at any time. The most common limitations period for a felony is four years. If the limitations period has run with no court case being filed, BCI should issue a certificate of eligibility. In cases involving an unfiled charge with no limitations period, before issuing a certificate of eligibility BCI may require a letter from the prosecution certifying that the case has been reviewed and a final decison not to file a court case has been made.

Seeking Certification from the Prosecutor

In order to achieve expungement eligibility before the statute of limitations has run or in cases involving charges with no limitations period, it may be necessary to seek certification from the prosecutor that no charges will be filed. It is not sufficient to show only that no charge have been filed. Instead, the prosecuting attorney with jurisdiction over the case must certify that the case has been screened and reviewed, and that a final decision has been made not to file charges. Before making a decision to seek this certification from the prosecutor, it should be understood that taking this action will bring the case to the prosecutor's attention and could increase the risk that criminal charges will be filed. In such circumstances it may be better and safer to wait for the statute of limitations period to run.

Finding a Utah Expungement Attorney

Utah Criminal Defense LawyerNavigating the expungement process in Utah is not always easy. Consultation with an experienced expungement attorney is important in determining how best to proceed in petitioning the court for expungement of your criminal records. Even in circumstances where you may not be eligible for expungement, other options including a 402 reduction or pardon may be available to help clear your criminal record.

Contact us today to see how we can help you.

How do I determine whether I am eligible for expungement?
Who has the burden of proof on a Utah expungement petition?
Are there exceptions that allow release of expunged criminal records in Utah?
Is there a separate process for obtaining expungement of juvenile records?

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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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