The Utah Bureau of Criminal Identification (the “BCI”) will have the final say on whether you’re eligible to expunge your Utah cases, but they charge $65 and they take about 6 months to process your application, so it probably makes sense to try and figure out if you’re eligible before you go through the application process.
Let me try to help you with that. I brake it down into four steps:
1–Were you CONVICTED of the charges you’re trying to expunge?
If you were not convicted of the charges, you are probably eligible to expunge the case. Here’s some reasons you might not have been convicted:
- You entered a “plea in abeyance” agreement and you successfully completed the terms, so the case was dismissed.
- YES, you are eligible to expunge that case.
- You had a trial and you were acquitted of the charges.
- YES, you are eligible to expunge that case.
- The prosecution filed the case and later dismissed it because of evidence problems.
- MAYBE. You are eligible to expunge that case is the case was dismissed with prejudice or if the statute of limitations has expired. If the case was dismissed without prejudice you need to either motion the court to convert the case to a with prejudice dismissal or you need to wait for the statute of limitations to expire. (We can help you try to get the dismissal converted to with prejudice.)
- You were arrested but the case was never filed in court.
- MAYBE. You are eligible to expunge your arrest records if the statute of limitations has expired, or if the prosecution provides you a letter saying they don’t intend to prosecute the case.
If you were convicted of the crime you’re trying to expunge, go to Step 2.
2–Were You Convicted of a Crime that is Never Eligible For Expungement?
The Utah legislature has decided that some crimes can never be expunged. Those include:
- capital felonies
- first degree felonies
- some kinds of violent felonies like aggravated assault, child abuse, rape, and mayhem (see Utah Code 76-3-203.5(c) for the complete list)
- felony DUI
- an offense for which you had to register, either on the sex offense registry of the child abuse registry
If you were convicted of one of these kinds of charges, your only option may be to apply to the Governor for a pardon. If you were not convicted of this kind of offense, go to Step 3.
3–Has the Wait Period Expired for the Conviction You’re Trying to Expunge?
The wait period starts when you are released from incarceration or parole or probation and the case is closed, whichever is later. So for most people that means that the wait period doesn’t start until your probation is over with–this often means a year or two after the actual conviction. The wait periods are:
- 10 years for Misdemeanor DUIs
- 7 years for Felonies (except felony drug possession offenses)
- 5 years for Class A Misdemeanors and felony drug possession offenses
- 4 years for Class B Misdemeanors (except DUIs)
- 3 years for Class C Misdemeanors and Infractions
If the wait period for the conviction you’re trying to expunge has expired, go to Step 4.
4–Do You Have Too Many Total Convictions on Your Record?
This is the step that gets really complicated. Here’s some of the ground-rules: They will count up ALL your convictions, whether they are in Utah or some other state. They will count drug possession offenses separately from other offenses. They will only count each case once, even if the case contained multiple charges that you were convicted of. Infractions are not counted, nor are minor “regulatory” offenses (see my post here about what a regulatory offense is). Here are the cutoffs; if you have this many convictions you are not eligible to expunge any convictions:
- Two Felony convictions
- Two Class A Misdemeanor convictions and any other conviction
- Three Class B Misdemeanor convictions and any other conviction
- Five convictions of any level
But as I said, drug possession offenses are counted separately. If we’re talking drug possession offenses, here are the cutoffs:
- Three felony drug-possession convictions
- Five convictions of any level for drug-possession.
If you made it to this step and you know you are under the cutoffs described above, then you should be eligible to apply for expungement. Check out my page on the Expungement Process for information on how to proceed.
If you got to this step but you got bogged down by the math and aren’t sure if you are eligible, contact my firm and we’ll try to help you figure it out.
If you got to this step and you think you’re just barely over the limit, we might be able to help. See my FAQ below.
I don’t remember everything that’s on my record, so I don’t know if I have too many total convictions!
If you’re pretty sure all your sure all your cases are in Utah and happened within the last 20 years or so, contact us and we can held you try to find them through a system called “xchange” and give you an idea of whether you’re eligible or not. This system is not perfect, as sometimes cases don’t show up because of typos or record-keeping problems, but it’s better than nothing.
The other option is to just send in your application to the BCI and see what they say. This costs $65 and takes about 6 months, but besides the money and the wait, there is no harm in having them check. If the BCI processes your application and tells you you’re not eligible, there may be somethings we can do to get you eligible, and then you can just re-apply. There’s no limit on the amount of times you can apply.
I have cases that had both drug possession offenses and other offenses, which one will they count?
Yeah, the rule here is a little tricky as well. Basically, if a single case contains a drug possession offense and a non-drug possession offense, then they will count the whole case as a drug possession offense unless:
- The other offense is a Felony of Class A Misdemeanor, or
- The other offense has a longer wait-period than the drug possession offense.
So, as examples, if you have a case which has a Class B Misdemeanor conviction for possession of drug paraphernalia and a Class B Misdemeanor conviction for shoplifting, it will count as a drug possession offense. But if you have a case with a Class B Misdemeanor conviction for Possession of Marijuana and a Class B Misdemeanor conviction for DUI, it will count as a non-drug possession offense, because the DUI has a longer wait period than the possession.
I have too many convictions but I’m very close! If there anything to be done?
Yes, we can often get people eligible through a process called “402 Reductions” where we go back into old cases and make motions to reduce the level of offense in that case.
For instance, let’s say you want to expunge a Felony theft conviction, but you are not eligible because you also have 4 other convictions for Minor in Possession of Alcohol and DUI and that kind of thing, so you have too many total convictions. Perhaps we can go back into the Minor in Possession of Alcohol case and get it reduced from a Class B Misdemeanor to an Infraction, so that it no longer counts in the total. Now you’re eligible to expunge everything on your record, including the Felony theft conviction!Content by Dain Smoland (Google+)