Most people think that only Utah criminal convictions are expungeable. No. Records of arrest, dismissed cases that were filed, but subsequently dismissed are also eligible for an expungement.
Utah Code 77-40a-302 sets out the requirements to expunge your records of arrest. They are as follows:
(1). 30 days have elapsed since the arrest that you want to expunge.
(2). You are not currently charged with any crimes, i.e., pending charges.
(3). You are not on probation or parole.
(4). Nothing in the arrest involved traffic convictions. That is a separate expungement process.
(5). Your arrest was screened for criminal charges and the prosecutor declines to file charges. It is best practice to obtain a declination to prosecute letter from the prosecuting agency with dates of arrest and police report numbers so the Utah Bureau of Identification can more easily assess your expungement eligibility.
The Utah Expungement Act doesn’t define “Arrest” in the definitions section of the Act. See Utah Code 77-40a-101.
But clearly if you are chained up, put in jail and no charges are filed that qualifies for an arrest. Same goes for being booked and released from the county jail—that’s an arrest. But what about when you are stopped by the police, interrogated and let go? Can you expunge the body camera and police report from the local files?
First: You need to receive a declination to file criminal charges by the local prosecuting agency who would have been in charge of screening your arrest.
Second: File a Utah Bureau of Criminal Identification expungement application. Attach the declination to file charges letter. Wait 3 months to get your eligibility certificate from the BCI.
Third: File a petition for expungement with the sentencing court. Attach your eligibility certificates.
Fourth: Obtain signed, certified “Orders of Expungement” and serve them on all agencies possessing the arrest records. Put all appropriate agency on your mailing certificate for best practices.
Often many different governmental agencies can have arrest records. You should send a certified copy of the expungement order to every agency you even think may have arrest records. Here are the common governmental agencies that may have your records:
(1). The county jail.
(2). The prison, if you were put back in prison on a parole violation.
(3). The arresting law enforcement agency.
(4). The county sheriff’s office.
(5). The prosecuting attorneys agency who screened your arrest and charges.
In Utah an arrest record can be the following documents:
(1). Police report.
(2). Any body camera footage, dash camera footage.
(3). Jail booking records and jail booking video.
(4). Prosecuting attorney files.
(5). DNA taken at the county jail. See my DNA Expungement blog.
Effective 5/4/2022 77-40a-302. Requirements for certificate of eligibility to expunge records of arrest, investigation, and detention.
An individual who is arrested or formally charged with an offense is eligible to receive a certificate of eligibility from the bureau to expunge the records of arrest, investigation, and detention that may have been made in the case if:
1.at least 30 days have passed since the day of the arrest for which a certificate of eligibility is sought;
2.there are no criminal proceedings or pleas in abeyance pending against the individual;
3.the individual is not currently on probation or parole;
4.there is not a criminal protective order or a criminal stalking injunction in effect for the case;
5.there are no convictions in the case for a traffic offense; and
6.one of the following occurs:
(a) charges are screened by the investigating law enforcement agency and the prosecuting attorney makes a final determination that no charges will be filed in the case;
(b) (i) all charges contained in the case are dismissed; and
(ii) if any charge contained in the case is dismissed without prejudice or without condition:
(A) the prosecuting attorney consents in writing to the issuance of a certificate of eligibility; or
(B) at least 180 days have passed since the day on which the charge is dismissed;(c) the individual is acquitted at trial on all of the charges contained in the case; or
(d) the statute of limitations expires on all of the charges contained in the case.
Renumbered and Amended by Chapter 250, 2022 General Session