Expungement Eligibility - Utah Expungement Attorney

Having your criminal record expunged can open the door to opportunities you have been denied because of criminal convictions.  Even if you are not eligible for an expungement, you may still qualify for a "402 reduction" that can reduce a felony conviction to a misdemeanor.  Call now to start the process of having your record expunged.  We can usually tell you right over the phone whether you qualify for an expungement or a 402 reduction.

Based in Salt Lake City, criminal defense attorney Stephen Howard offers legal services to clients throughout Utah.  We can also help clients who live out-of-state with their Utah expungement or 402 reduction case so that they don't have to travel to Utah for court hearings.

This page contains information on the following:

• Starting the Expungement Process - Certificate of Eligibility
• The Court Petition for Expungement
• Delivering the Expungement Order
• Eligibility for Expungement
• 402 Reductions and Expungements
• Finding an Expungement Attorney
• Full Text of Utah Code 77-40-104 (Eligibility with No Conviction)
• Full Text of Utah Code 77-40-105 (Eligibility for Convictions)

Starting the Expungement Process - BCI Certificate of Eligibility

The first step in filing for a Utah expungement is to obtain a certificate of eligibility from the Utah Bureau of Criminal Identification (BCI). BCI cannot issue an expungement order. Instead, BCI only determines if you have too have too many convictions, convictions that are too recent, or if the level of your charges is too high to meet the statutory eligibility requirements. If BCI determines that you are eligible, they will notify you with a letter that explains which charges or cases you are eligible to proceed forward on. If you choose to pursue the expungement, you must return the letter to BCI with the required fee before BCI will actually issue the certificate of eligibility

The Court Petition for Expungement in Utah

Once you obtain BCI certificate of eligibility, you must then file a petition with the proper court. In most cases, the expungement petition must be filed with the court where the case was filed and heard. In cases where no criminal charges were filed, the expungement petition is generally filed with the district court having geographic jurisdiction over the matter.

The petition serves as a formal request that the court order the expungement (or sealing) of your criminal records. The petition must be accompanied by the certificate of eligibility. In addition, the petition must contain information sufficient to establish, by clear and convincing evidence, that granting the expungement is not contrary to the public interest. If the prosecutor or victim objects to the expungement, the court is required to hold a hearing to determine whether the expungement should be granted.

Delivering the Utah Expungement Order

If the petition for expungement is granted, the expungement process is not complete. Unless government agencies that maintain records of criminal case information (police, prosecutor, BCI etc.) are presented with the court order, they will still make information about the case available to the public.

Government agencies retaining records relating to criminal arrests or convictions are required to comply withe the expungement order only after receiving a certified copy of the order. The petitioner must deliver copies of the expungement order to all government agencies in possession or any records relating to the expunged matter. Those records are then sealed, and made generally unavailable to the public. If the order is not delivered to the agency, then the agency will respond as though the expungement was never completed

Eligibility for Expungement in Utah

There are certain time requirements for having your Utah criminal conviction expunged. The waiting time for expungement eligibility only begins to run from the latest of either the date of conviction, release from incarceration, or termination from probation or parole. The waiting time for expungement of a felony charge is 7 years; 5 years for a class A misdemeanor; 4 years for a class B misdemeanor; and 3 years for a class C misdemeanor or infraction. If your case has been dismissed, or if you were arrested without charges being filed, you may be eligible for expungement 30 days after the dismissal or arrest.

Utah law imposes some limitations on what charges can be expunged. First degree felonies, violent felonies, felony DUI's, automobile homicide, and registrable sex offenses typically may not be expunged. You also may be denied eligibility if your criminal record is too long. If your record includes convictions arising from separate criminal episodes for two or more felonies, three or more misdemeanors (if two of them are class A misdemeanors), four or more misdemeanors (if three of them are class B misdemeanors), or five or more crimes of any degree other than infractions. (The legislature in 2013 passed amendments to the expungement eligibility statute making exceptions for eligibility for multiple drug possession cases.)

402 Reductions and Expungements

The waiting time for a Utah expungement can sometimes be shortened by first having the level of your charge reduced under Utah Code Ann. 76-3-402. If you successfully completed probation, you are eligible under section 402 to petition the court for a one-step or two-step reduction in the level of the conviction. A section 402 reduction can also be useful if you are denied eligibility for expungement due to multiple felony convictions or too many misdemeanor convictions. In those cases, a Utah 402 reduction may provide a way to remove the "convicted felon" label from your record by reducing even felony convictions to a misdemeanor level.

Finding an Expungement Attorney in Utah

Based in Salt Lake City, expungement attorney Stephen Howard has assisted clients in various parts of the country to complete their Utah expungements. Whether you live in Utah or have moved somewhere new, in many cases we can complete the expungement process without you ever appearing in court.

As an experienced Utah criminal defense attorney, Stephen Howard can help you get your record expunged.  Contact us now to begin the process today.

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• Who bears the burden of proof in an expungement petition?

Utah Law Governing Expungement Eligibility

The process for a Utah expungement is governed by the Utah Expungement Act, found in Utah Code Ann. Title 76, Chapter 40, Sections 101-113. The rules can seem complicated. But if the required time has passed and you are now eligible to have your record expunged, the cost and effort can be well worthwhile. Being free from a criminal record can open doors that have for too long been closed to you.

Following are the two chief sections of the Utah Expungement Act governing eligibility for expungement. These statutes are subject to change, and consultation with an experienced expungement attorney in strongly recommended before proceeding. (Please note that the Utah Legislature made certain changes to the Utah Expungement Act in 2017 by passing SB12. Click here to learn more about these changes.)

Text of Utah Code 77-40-104 - Expungement Eligibility with no Conviction

Subsection (1) provides the expungement eligibility requirements for arrests which do not result in a conviction.

(1) A person who has been arrested or formally charged with an offense may apply to the bureau for a certificate of eligibility to expunge all records of arrest, investigation, and detention which may have been made in the case, subject to the following conditions:
  (a) at least 30 days have passed since the arrest for which a certificate of eligibility is sought;
  (b) there are no criminal proceedings pending against the petitioner; and
  (c) one of the following occurred:
    (i) charges were screened by the investigating law enforcement agency and the prosecutor has made a final determination that no charges will be filed in the case;
    (ii) the entire case was dismissed with prejudice;
    (iii) the person was acquitted at trial on all of the charges contained in the case; or
    (iv) the statute of limitations has expired on all of the charges contained in the case.

Subsection (2) essentially waives the 30-day expungement waiting period for a person who has been acquitted at trial on all counts.
 
(2) Notwithstanding Subsection (1)(a), a petitioner seeking expungement under Subsection (1)(c)(iii) shall be issued a certificate of eligibility on an expedited basis.

Text of Utah Code 77-40-105 - Expungement Eligibility for Convictions

Subsection (1) states that this section of the code governs applications for a certificate of eligibility for records of conviction.

(1) A person convicted of an offense may apply to the bureau for a certificate of eligibility to expunge the record of conviction as provided in this section.

Subsection (2) outlines various offenses for which no expungement is possible, and other circumstances under which BCI may not issue a certificate of eligibility.

(2) A petitioner is not eligible to receive a certificate of eligibility from the bureau if:
  (a) the conviction for which expungement is sought is:
    (i) a capital felony;
    (ii) a first degree felony;
    (iii) a violent felony as defined in Subsection 76-3-203.5(1)(c)(i);
    (iv) felony automobile homicide;
    (v) a felony violation of Subsection 41-6a-501(2); or
    (vi) a registerable sex offense as defined in Subsection 77-41-102(16);
  (b) a criminal proceeding is pending against the petitioner; or
  (c) the petitioner intentionally or knowingly provides false or misleading information on the application for a certificate of eligibility.

Subsection (3) outlines certain conditions required for the issuance of a certificate of eligibility, including the payment of outstanding financial obligations and the time requirements for various conviction levels and offenses.

(3) A petitioner seeking to obtain expungement for a record of conviction is not eligible to receive a certificate of eligibility from the bureau until all of the following have occurred:
  (a) all fines and interest ordered by the court have been paid in full;
  (b) all restitution ordered by the court pursuant to Section 77-38a-302, or by the Board of Pardons and Parole pursuant to Section 77-27-6, has been paid in full; and
  (c) the following time periods have elapsed from the date the petitioner was convicted or released from incarceration, parole, or probation, whichever occurred last, for each conviction the petitioner seeks to expunge:
    (i) 10 years in the case of a misdemeanor conviction of Subsection 41-6a-501(2) or a felony conviction of Subsection 58-37-8(2)(g);
    (ii) seven years in the case of a felony;
    (iii) five years in the case of any class A misdemeanor or a felony drug possession offense;
    (iv) four years in the case of a class B misdemeanor; or
    (v) three years in the case of any other misdemeanor or infraction.

Subsection (4) establishes limits on the number of non-drug convictions that may be expunged. The limits are based in part on the level of the conviction.

(4) The bureau may not issue a certificate of eligibility if, at the time the petitioner seeks a certificate of eligibility, the bureau determines that the petitioner's criminal history, including previously expunged convictions, contains any of the following:
  (a) two or more felony convictions other than for drug possession offenses, each of which is contained in a separate criminal episode;
  (b) any combination of three or more convictions other than for drug possession offenses that include two class A misdemeanor convictions, each of which is contained in a separate criminal episode;
  (c) any combination of four or more convictions other than for drug possession offenses that include three class B misdemeanor convictions, each of which is contained in a separate criminal episode; or
  (d) five or more convictions other than for drug possession offenses of any degree whether misdemeanor or felony, excluding infractions and any traffic offenses, each of which is contained in a separate criminal episode.

Subsection (5) was enacted to provide broader eligibility for drug possession convictions.

(5) The bureau may not issue a certificate of eligibility if, at the time the petitioner seeks a certificate of eligibility, the bureau determines that the petitioner's criminal history, including previously expunged convictions, contains any of the following:
  (a) three or more felony convictions for drug possession offenses, each of which is contained in a separate criminal episode; or
  (b) any combination of five or more convictions for drug possession offenses, each of which is contained in a separate criminal episode.

Subsection (6) provides eligibility requirements where a single criminal episode contains both drug possession and non-drug convictions.

(6) If the petitioner's criminal history contains convictions for both a drug possession offense and a non drug possession offense arising from the same criminal episode, that criminal episode shall be counted as provided in Subsection (4) if any non drug possession offense in that episode:
  (a) is a felony or class A misdemeanor; or
  (b) has the same or a longer waiting period under Subsection (3) than any drug possession offense in that episode.

Under prior versions of the Utah Expungement Act, a pardon merely restored eligibility for expungement. After 2013, a pardon has essentially the same effect as an expungement. Subsection (7) provides that a pardon granted prior to the 2013 change in the statute still restores eligibility for expungement.

(7) If, prior to May 14, 2013, the petitioner has received a pardon from the Utah Board of Pardons and Parole, the petitioner is entitled to an expungement order for all pardoned crimes pursuant to Section 77-27-5.1.

Finding a Criminal Defense Attorney for Expungements

Based in Salt Lake City, criminal defense lawyer Stephen Howard has assisted clients in expunging records of cases including serious felony convictions and multiple misdemeanor charges. He has also assisted clients in restoring expungement eligibility through the filing of successful 402 reduction motions.

If you have a criminal record you are seeking to expunge, an experienced criminal defense attorney can help give you the best chance of success. Contact us today to arrange for an initial consultation.