(1)

Attorney's Note

Under the Utah Code, punishments for crimes depend on the classification. In the case of this section:
ClassPrisonFine
class B misdemeanorup to 6 monthsup to $1,000
class C misdemeanorup to 90 daysup to $750
For details, see Utah Code § 76-3-204
criminal case

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Terms Used In Utah Code 77-40a-305

  • Agency: means a state, county, or local government entity that generates or maintains records relating to an investigation, arrest, detention, or conviction for an offense for which expungement may be ordered. See Utah Code 77-40a-101
  • Arrest: Taking physical custody of a person by lawful authority.
  • Bureau: means the Bureau of Criminal Identification of the Department of Public Safety established in Section 53-10-201. See Utah Code 77-40a-101
  • Certificate of eligibility: means a document issued by the bureau stating that the criminal record and all records of arrest, investigation, and detention associated with a case that is the subject of a petition for expungement is eligible for expungement. See Utah Code 77-40a-101
  • City: includes , depending on population, a metro township as defined in Section 10-3c-102. See Utah Code 68-3-12.5
  • Conviction: A judgement of guilt against a criminal defendant.
  • Conviction: means judgment by a criminal court on a verdict or finding of guilty after trial, a plea of guilty, or a plea of nolo contendere. See Utah Code 77-40a-101
  • Court: means a district court or a justice court. See Utah Code 77-40a-101
  • Department: means the Department of Public Safety established in Section 53-1-103. See Utah Code 77-40a-101
  • Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
  • Jurisdiction: means a state, district, province, political subdivision, territory, or possession of the United States or any foreign country. See Utah Code 77-40a-101
  • Person: means :
         (24)(a) an individual;
         (24)(b) an association;
         (24)(c) an institution;
         (24)(d) a corporation;
         (24)(e) a company;
         (24)(f) a trust;
         (24)(g) a limited liability company;
         (24)(h) a partnership;
         (24)(i) a political subdivision;
         (24)(j) a government office, department, division, bureau, or other body of government; and
         (24)(k) any other organization or entity. See Utah Code 68-3-12.5
  • Petitioner: means an individual applying for expungement under this chapter. See Utah Code 77-40a-101
  • Plea: In a criminal case, the defendant's statement pleading "guilty" or "not guilty" in answer to the charges, a declaration made in open court.
  • Plea in abeyance: means the same as that term is defined in Section 77-2a-1. See Utah Code 77-40a-101
  • Probation: A sentencing alternative to imprisonment in which the court releases convicted defendants under supervision as long as certain conditions are observed.
  • Record: means a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material, regardless of physical form or characteristics, that:
         (21)(a) is contained in the agency's file regarding the arrest, detention, investigation, conviction, sentence, incarceration, probation, or parole of an individual; and
         (21)(b) is prepared, owned, received, or retained by an agency, including a court. See Utah Code 77-40a-101 v2
  • Special certificate: means a document issued as described in Subsection 77-40a-304(1)(c) by the bureau stating that the criminal record and all records of arrest, investigation, and detention associated with a case that is the subject of a petition for expungement is eligible for expungement. See Utah Code 77-40a-101
  • State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
  • Traffic offense: means , except as provided in Subsection (21)(b):
              (21)(a)(i) an infraction, a class B misdemeanor offense, or a class C misdemeanor offense under Title 41, Chapter 6a, Traffic Code;
              (21)(a)(ii) an infraction, a class B misdemeanor offense, or a class C misdemeanor offense under Title 53, Chapter 3, Part 2, Driver Licensing Act;
              (21)(a)(iii) an infraction, a class B misdemeanor offense, or a class C misdemeanor offense under Title 73, Chapter 18, State Boating Act; and
              (21)(a)(iv) all local ordinances that are substantially similar to an offense listed in Subsections (21)(a)(i) through (iii). See Utah Code 77-40a-101
  • Traffic offense case: means that each offense in the case is a traffic offense. See Utah Code 77-40a-101
  • Writing: includes :
         (48)(a) printing;
         (48)(b) handwriting; and
         (48)(c) information stored in an electronic or other medium if the information is retrievable in a perceivable format. See Utah Code 68-3-12.5
     (1)(a) The petitioner shall file a petition for expungement in accordance with Rule 42 of the Utah Rules of Criminal Procedure.
     (1)(b) A petitioner shall include the identification number for the certificate of eligibility or special certificate described in Subsection 77-40a-304(2)(b)(ii) in the petition for expungement, unless the petitioner is not required to obtain a certificate of eligibility under Subsection (3) or (4).
     (1)(c) Information on a certificate of eligibility is incorporated into a petition by reference to the identification number for the certificate of eligibility.
     (1)(d) A petitioner shall bring a petition for expungement:

          (1)(d)(i) in the court where the criminal case was filed; or
          (1)(d)(ii) if charges were never filed, in the district court in the county in which the arrest occurred or the citation was issued.
(2)

     (2)(a) If a petition for expungement is filed under Subsection (1)(a), the court shall obtain a certificate of eligibility or special certificate from the bureau.
     (2)(b) A court may not accept a petition for expungement if the certificate of eligibility or special certificate is no longer valid as described in Subsection 77-40a-304(2)(b)(i).
(3) Notwithstanding Subsection (2), the petitioner may file a petition for expungement of a traffic offense case without obtaining a certificate of eligibility if:

     (3)(a)

          (3)(a)(i) for a traffic offense case with a class C misdemeanor or infraction, at least three years have passed after the day on which the case was adjudicated or dismissed; or
          (3)(a)(ii) for a traffic offense case with a class B misdemeanor, at least four years have passed after the day on which the case was adjudicated or dismissed;
     (3)(b) there is no traffic offense case pending against the petitioner;
     (3)(c) there is no plea in abeyance for a traffic offense case pending against the petitioner; and
     (3)(d) the petitioner is not currently on probation for a traffic offense case.
(4) Notwithstanding Subsection (2), a petitioner may file a petition for expungement of a record for a conviction related to cannabis possession without a certificate of eligibility if the petition demonstrates that:

     (4)(a) the petitioner had, at the time of the relevant arrest or citation leading to the conviction, a qualifying condition, as that term is defined in Section 26B-4-201; and
     (4)(b) the possession of cannabis in question was in a form and an amount to medicinally treat the qualifying condition described in Subsection (4)(a).
(5)

     (5)(a) The court shall provide notice of a filing of a petition and certificate of eligibility or special certificate to the prosecutorial office that handled the court proceedings within three days after the day on which the petitioner’s filing fee is paid or waived.
     (5)(b) If there were no court proceedings, the court shall provide notice of a filing of a petition and certificate of eligibility or special certificate to the county attorney’s office in the jurisdiction where the arrest occurred.
     (5)(c) If the prosecuting agency with jurisdiction over the arrest, investigation, detention, or conviction, was a city attorney’s office, the county attorney’s office in the jurisdiction where the arrest occurred shall immediately notify the city attorney’s office that the county attorney’s office has received a notice of a filing of a petition for expungement.
(6)

     (6)(a) Upon receipt of a notice of a filing of a petition for expungement of a conviction or a charge dismissed in accordance with a plea in abeyance, the prosecuting attorney shall make a reasonable effort to provide notice to any victim of the conviction or charge.
     (6)(b) The notice under Subsection (6)(a) shall:

          (6)(b)(i) include a copy of the petition, certificate of eligibility or special certificate, statutes, and rules applicable to the petition;
          (6)(b)(ii) state that the victim has a right to object to the expungement; and
          (6)(b)(iii) provide instructions for registering an objection with the court.
(7)

     (7)(a) The prosecuting attorney may respond to the petition by filing a recommendation or objection with the court within 35 days after the day on which the notice of the filing of the petition is sent by the court to the prosecuting attorney.
     (7)(b) If there is a victim of the offense for which expungement is sought, the victim may respond to the petition by filing a recommendation or objection with the court within 60 days after the day on which the petition for expungement was filed with the court.
(8)

     (8)(a) The court may request a written response to the petition from the Division of Adult Probation and Parole within the Department of Corrections.
     (8)(b) If requested, the response prepared by the Division of Adult Probation and Parole shall include:

          (8)(b)(i) the reasons probation was terminated; and
          (8)(b)(ii) certification that the petitioner has completed all requirements of sentencing and probation or parole.
     (8)(c) The Division of Adult Probation and Parole shall provide a copy of the response to the petitioner and the prosecuting attorney.
(9) The petitioner may respond in writing to any objections filed by the prosecuting attorney or the victim and the response prepared by the Division of Adult Probation and Parole within 14 days after the day on which the objection or response is received.
(10)

     (10)(a) If the court receives an objection concerning the petition from any party, the court shall set a date for a hearing and notify the petitioner and the prosecuting attorney of the date set for the hearing.
     (10)(b) The prosecuting attorney shall notify the victim of the date set for the hearing.
     (10)(c) The petitioner, the prosecuting attorney, the victim, and any other person who has relevant information about the petitioner may testify at the hearing.
     (10)(d) The court shall review the petition, the certificate of eligibility or special certificate, and any written responses submitted regarding the petition.
(11) If no objection is received within 60 days from the day on which the petition for expungement is filed with the court, the expungement may be granted without a hearing.

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