77-40a-306. Order of expungement.
| (1) |
If a petition is filed in accordance with Section 77-40a-305, the court shall issue an order of expungement if the court finds, by clear and convincing evidence, that:
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Terms Used In Utah Code 77-40a-306- Arrest: Taking physical custody of a person by lawful authority.
- 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
- 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
- Conviction: A judgement of guilt against a criminal defendant.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Expunge: means to seal or otherwise restrict access to the individual's record held by an agency when the record includes a criminal investigation, detention, arrest, or conviction. See Utah Code 77-40a-101
- 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.
| (a) |
except as provided in Subsection 77-40a-305(3) or (4), the petition and certificate of eligibility are sufficient; |
| (b) |
the statutory requirements have been met; |
| (c) |
if the petitioner seeks expungement after a case is dismissed without prejudice or without condition, the prosecuting attorney provided written consent and has not filed and does not intend to refile related charges; |
| (d) |
if the petitioner seeks expungement without a certificate of eligibility for expungement under Subsection 77-40a-305(4) for a record of conviction related to cannabis possession:
| (i) |
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 |
| (ii) |
the possession of cannabis in question was in a form and an amount to medicinally treat the qualifying condition described in Subsection (1)(d)(i); |
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| (e) |
if an objection is received, the petition for expungement is for a charge dismissed in accordance with a plea in abeyance agreement, and the charge is an offense eligible to be used for enhancement, there is good cause for the court to grant the expungement; and |
| (f) |
the interests of the public would not be harmed by granting the expungement. |
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| (2) |
| (a) |
If the court denies a petition described in Subsection (1)(c) because the prosecuting attorney intends to refile charges, the petitioner may apply again for a certificate of eligibility if charges are not refiled within 180 days after the day on which the court denies the petition. |
| (b) |
A prosecuting attorney who opposes an expungement of a case dismissed without prejudice, or without condition, shall have a good faith basis for the intention to refile the case. |
| (c) |
A court shall consider the number of times that good faith basis of intention to refile by the prosecuting attorney is presented to the court in making the court’s determination to grant the petition for expungement described in Subsection (1)(c). |
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| (3) |
If the court grants a petition described in Subsection (1)(e), the court shall make the court’s findings in a written order. |
| (4) |
A court may not expunge a conviction of an offense for which a certificate of eligibility may not be, or should not have been, issued under Section 77-40a-302 or 77-40a-303. |
Amended by Chapter 330, 2023 General Session
