LEGISLATIVE GENERAL COUNSEL H.B. 133
6 Approved for Filing: J. Carlton 6
6 01-30-24 7:01 PM 6
1 HUMAN TRAFFICKING EXPUNGEMENT AMENDMENTS
2 2024 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Ariel Defay
5 Senate Sponsor: Stephanie Pitcher
6
7 LONG TITLE
8 General Description:
9 This bill addresses the expungement of offenses for human trafficking victims.
10 Highlighted Provisions:
11 This bill:
12 < allows an individual to file a petition for expungement, without a certificate of
13 eligibility, if the individual is seeking an expungement of records for prostitution,
14 aiding prostitution, or sexual solicitation and the individual was subject to force,
15 fraud, or coercion at the time of the conduct;
16 < addresses an order for expungement when the individual is seeking an expungement
17 of records for prostitution, aiding prostitution, or sexual solicitation; and
18 < makes technical and conforming changes.
19 Money Appropriated in this Bill:
20 None
21 Other Special Clauses:
22 None
23 Utah Code Sections Affected:
24 AMENDS:
25 77-40a-301, as enacted by Laws of Utah 2022, Chapter 250
H.B. 133
26 77-40a-305, as last amended by Laws of Utah 2023, Chapters 265, 330
27 77-40a-306, as last amended by Laws of Utah 2023, Chapter 330
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28
29 Be it enacted by the Legislature of the state of Utah:
30 Section 1. Section 77-40a-301 is amended to read:
31 77-40a-301. Requirements for expunging a criminal record -- Penalty for false or
32 misleading information on application.
33 (1) If an individual seeks to expunge the individual's criminal record in regard to an
34 arrest, investigation, detention, or conviction, the individual shall:
35 (a) except as provided in Subsection 77-40a-305(3) [or (4)], apply to the bureau for a
36 certificate of eligibility for expungement of the criminal record and pay the application fee as
37 described in Section 77-40a-304;
38 (b) if the individual is [qualified] eligible to receive a certificate of eligibility, pay the
39 issuance fee for the certificate of eligibility as described in Section 77-40a-304; and
40 (c) file a petition for expungement in accordance with Section 77-40a-305.
41 (2) (a) An individual who intentionally or knowingly provides any false or misleading
42 information to the bureau when applying for a certificate of eligibility is guilty of a class B
43 misdemeanor and subject to prosecution under Section 76-8-504.6.
44 (b) Regardless of whether the individual is prosecuted, the bureau may deny a
45 certificate of eligibility to anyone who knowingly provides false information on an application.
46 Section 2. Section 77-40a-305 is amended to read:
47 77-40a-305. Petition for expungement -- Prosecutorial responsibility -- Hearing.
48 (1) (a) The petitioner shall file a petition for expungement[,] in accordance with Rule
49 42 of the Utah Rules of Criminal Procedure[, that includes].
50 (b) A petitioner shall include the identification number for the certificate of eligibility
51 described in Subsection 77-40a-304(1)(d)(ii) in the petition for expungement, unless the
52 petitioner is not required to obtain a certificate of eligibility under Subsection (3).
53 [(b)] (c) Information on a certificate of eligibility is incorporated into a petition by
54 reference to the identification number for the certificate of eligibility.
55 (2) (a) If a petition for expungement is filed under Subsection (1)(a), the court shall
56 obtain a certificate of eligibility from the bureau.
57 (b) A court may not accept a petition for expungement if the certificate of eligibility is
58 no longer valid as described in Subsection 77-40a-304(1)(d)(i).
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59 (3) Notwithstanding Subsection (2), the petitioner may file a petition [for expungement
60 of] to expunge records, without obtaining a certificate of eligibility, of:
61 (a) a traffic offense case [without obtaining a certificate of eligibility] if:
62 [(a) (i)] (i) (A) for a traffic offense case with a class C misdemeanor or infraction, at
63 least three years have passed after the day on which the petitioner was convicted; or
64 [(ii)] (B) for a traffic offense case with a class B misdemeanor, at least four years have
65 passed after the day on which the petitioner was convicted;
66 [(b)] (ii) there is no traffic offense case pending against the petitioner;
67 [(c)] (iii) there is no plea in abeyance for a traffic offense case pending against the
68 petitioner; and
69 [(d)] (iv) the petitioner is not currently on probation for a traffic offense case[.];
70 [(4) Notwithstanding Subsection (2), a petitioner may file a petition for expungement
71 of a record for]
72 (b) a conviction related to cannabis possession [without a certificate of eligibility] if
73 the petition demonstrates that:
74 [(a)] (i) the petitioner had, at the time of the relevant arrest or citation leading to the
75 conviction, a qualifying condition, as that term is defined in Section 26B-4-201; and
76 [(b)] (ii) the possession of cannabis in question was in a form and an amount to
77 medicinally treat the qualifying condition described in Subsection [(4)(a).] (3)(b)(i); or
78 (c) an arrest, a charge, or a conviction for prostitution under Section 76-10-1302,
79 aiding prostitution under Section 76-10-1304, or sexual solicitation under Section 76-10-1313,
80 if the petition demonstrates that the petitioner was subject to force, fraud, or coercion at the
81 time of the conduct giving rise to the arrest, charge, or conviction.
82 [(5)] (4) (a) The court shall provide notice of a filing of a petition and certificate of
83 eligibility to the prosecutorial office that handled the court proceedings within three days after
84 the day on which the petitioner's filing fee is paid or waived.
85 (b) If there were no court proceedings, the court shall provide notice of a filing of a
86 petition and certificate of eligibility to the county attorney's office in the jurisdiction where the
87 arrest occurred.
88 (c) If the prosecuting agency with jurisdiction over the arrest, investigation, detention,
89 or conviction, was a city attorney's office, the county attorney's office in the jurisdiction where
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90 the arrest occurred shall immediately notify the city attorney's office that the county attorney's
91 office has received a notice of a filing of a petition for expungement.
92 [(6)] (5) (a) Upon receipt of a notice of a filing of a petition for expungement of a
93 conviction or a charge dismissed in accordance with a plea in abeyance, the prosecuting
94 attorney shall make a reasonable effort to provide notice to any victim of the conviction or
95 charge.
96 (b) The notice under Subsection [(6)(a)] (5)(a) shall:
97 (i) include a copy of the petition, certificate of eligibility, statutes, and rules applicable
98 to the petition;
99 (ii) state that the victim has a right to object to the expungement; and
100 (iii) provide instructions for registering an objection with the court.
101 [(7)] (6) (a) The prosecuting attorney may respond to the petition by filing a
102 recommendation or objection with the court within 35 days after the day on which the notice of
103 the filing of the petition is sent by the court to the prosecuting attorney.
104 (b) If there is a victim of the offense for which expungement is sought, the victim may
105 respond to the petition by filing a recommendation or objection with the court within 60 days
106 after the day on which the petition for expungement was filed with the court.
107 [(8)] (7) (a) The court may request a written response to the petition from the Division
108 of Adult Probation and Parole within the Department of Corrections.
109 (b) If requested, the response prepared by the Division of Adult Probation and Parole
110 shall include:
111 (i) the reasons probation was terminated; and
112 (ii) certification that the petitioner has completed all requirements of sentencing and
113 probation or parole.
114 (c) The Division of Adult Probation and Parole shall provide a copy of the response to
115 the petitioner and the prosecuting attorney.
116 [(9)] (8) The petitioner may respond in writing to any objections filed by the
117 prosecuting attorney or the victim and the response prepared by the Division of Adult
118 Probation and Parole within 14 days after the day on which the objection or response is
119 received.
120 [(10)] (9) (a) If the court receives an objection concerning the petition from any party,
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121 the court shall set a date for a hearing and notify the petitioner and the prosecuting attorney of
122 the date set for the hearing.
123 (b) The prosecuting attorney shall notify the victim of the date set for the hearing.
124 (c) The petitioner, the prosecuting attorney, the victim, and any other person who has
125 relevant information about the petitioner may testify at the hearing.
126 (d) The court shall review the petition, the certificate of eligibility, and any written
127 responses submitted regarding the petition.
128 [(11)] (10) If no objection is received within 60 days from the day on which the
129 petition for expungement is filed with the court, the expungement may be granted without a
130 hearing.
131 Section 3. Section 77-40a-306 is amended to read:
132 77-40a-306. Order of expungement.
133 (1) If a petition is filed in accordance with Section 77-40a-305, the court shall issue an
134 order of expungement if the court finds, by clear and convincing evidence, that:
135 (a) except as provided in Subsection 77-40a-305(3) [or (4)], the petition and certificate
136 of eligibility are sufficient;
137 (b) the statutory requirements have been met;
138 (c) if the petitioner seeks expungement after a case is dismissed without prejudice or
139 without condition, the prosecuting attorney provided written consent and has not filed and does
140 not intend to refile related charges;
141 (d) if the petitioner seeks expungement without a certificate of eligibility [for
142 expungement under Subsection 77-40a-305(4) for a record of] for a conviction related to
143 cannabis possession as described in Subsection 77-40a-305(3):
144 (i) the petitioner had, at the time of the relevant arrest or citation leading to the
145 conviction, a qualifying condition, as that term is defined in Section 26B-4-201; and
146 (ii) the possession of cannabis in question was in a form and an amount to medicinally
147 treat the qualifying condition described in Subsection (1)(d)(i);
148 (e) the petitioner was subject to force, fraud, or coercion at the time of the conduct
149 giving rise to the arrest, charge, or conviction if the petitioner seeks expungement without a
150 certificate of eligibility as described in Subsection 77-40a-305(3) for an arrest, a charge, or a
151 conviction for a violation of Section 76-10-1302, prostitution, Section 76-10-1304, aiding
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152 prostitution, or Section 76-10-1313, sexual solicitation;
153 [(e)] (f) if an objection is received, the petition for expungement is for a charge
154 dismissed in accordance with a plea in abeyance agreement, and the charge is an offense
155 eligible to be used for enhancement, there is good cause for the court to grant the expungement;
156 and
157 [(f)] (g) the interests of the public would not be harmed by granting the expungement.
158 (2) (a) If the court denies a petition described in Subsection (1)(c) because the
159 prosecuting attorney intends to refile charges, the petitioner may apply again for a certificate of
160 eligibility if charges are not refiled within 180 days after the day on which the court denies the
161 petition.
162 (b) A prosecuting attorney who opposes an expungement of a case dismissed without
163 prejudice, or without condition, shall have a good faith basis for the intention to refile the case.
164 (c) A court shall consider the number of times that good faith basis of intention to
165 refile by the prosecuting attorney is presented to the court in making the court's determination
166 to grant the petition for expungement described in Subsection (1)(c).
167 (3) If the court grants a petition described in Subsection [(1)(e)] (1)(f), the court shall
168 make the court's findings in a written order.
169 (4) A court may not expunge a conviction of an offense for which a certificate of
170 eligibility may not be, or should not have been, issued under Section 77-40a-302 or
171 77-40a-303.
172 Section 4. Effective date.
173 This bill takes effect on May 1, 2024.
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Statutes affected:
Introduced: