Bill Summary – FastDemocracy

LEGISLATIVE GENERAL COUNSEL                                            H.B. 179
Approved for Filing: J. Carlton 6
          6 01-17-22 4:51 PM 6
                            JUVENILE RECORD AMENDMENTS
                                      2022 GENERAL SESSION
                                           STATE OF UTAH
                                Chief Sponsor: V. Lowry Snow
                                   Senate Sponsor: ____________
 6
 LONG TITLE
 General Description:
        This bill amends provisions related to juvenile records.
 Highlighted Provisions:
        This bill:
        < amends provisions regarding the inspection of juvenile court records;
        < defines terms;
        < addresses the expungement of a juvenile record;
        < amends the requirements for a petition of expungement of a juvenile record;
        < addresses the expungement of a petition for an offense that is found to be incorrect
 or not true and petitions that are dismissed with prejudice;
        < clarifies the effect of an expungement order in the juvenile court;
        < allows an expunged record to be released or viewed by an individual who is the
 subject of the expunged record;
        < addresses the retroactivity of Title 80, Chapter 6, Part 10, Juvenile Records and
 Expungement; and
        < makes technical and conforming changes.
 Money Appropriated in this Bill:
        None
                                                                                                     H.B. 179
 Other Special Clauses:
        None
     *HB0179*
       H.B. 179                                                                   01-17-22 4:51 PM
 Utah Code Sections Affected:
 AMENDS:
        78A-6-209, as last amended by Laws of Utah 2021, Chapter 261
        80-6-1001, as renumbered and amended by Laws of Utah 2021, Chapter 261
        80-6-1003, as enacted by Laws of Utah 2021, Chapter 261
        80-6-1004, as last amended by Laws of Utah 2021, Chapter 231 and renumbered and
 amended by Laws of Utah 2021, Chapter 261
        80-6-1006, as renumbered and amended by Laws of Utah 2021, Chapter 261
 ENACTS:
        80-6-1004.5, Utah Code Annotated 1953
        80-6-1005.5, Utah Code Annotated 1953
        80-6-1008, Utah Code Annotated 1953
 REPEALS:
        80-6-1005, as renumbered and amended by Laws of Utah 2021, Chapter 261
42
 Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 78A-6-209 is amended to read:
        78A-6-209. Court records -- Inspection.
        (1) The juvenile court and the juvenile court's probation department shall keep records
 as required by the board and the presiding judge.
        (2) A court record shall be open to inspection by:
        (a) the parents or guardian of a child, a minor who is at least 18 years old, other parties
 in the case, the attorneys, and agencies to which custody of a minor has been transferred;
        (b) for information relating to adult offenders alleged to have committed a sexual
 offense, a felony or class A misdemeanor drug offense, or an offense against the person under
 Title 76, Chapter 5, Offenses Against the Person, the State Board of Education for the purpose
 of evaluating whether an individual should be permitted to obtain or retain a license as an
 educator or serve as an employee or volunteer in a school, with the understanding that the State
 Board of Education must provide the individual with an opportunity to respond to any
 information gathered from the State Board of Education's inspection of the records before the
 State Board of Education makes a decision concerning licensure or employment;
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       01-17-22 4:51 PM                                                                       H.B. 179
        (c) the Criminal Investigations and Technical Services Division, established in Section
 53-10-103, for the purpose of a criminal history background check for the purchase of a firearm
 and establishing good character for issuance of a concealed firearm permit as provided in
 Section 53-5-704;
        (d) the Division of Child and Family Services for the purpose of Child Protective
 Services Investigations in accordance with Sections 62A-4a-403 and 62A-4a-409 and
 administrative hearings in accordance with Section 62A-4a-1009;
        (e) the Office of Licensing for the purpose of conducting a background check in
 accordance with Section 62A-2-120;
        (f) for information related to a minor who has committed a sexual offense, a felony, or
 an offense that if committed by an adult would be a misdemeanor, the Department of Health
 for the purpose of evaluating under the provisions of Subsection 26-39-404(3) whether a
 licensee should be permitted to obtain or retain a license to provide child care, with the
 understanding that the department must provide the individual who committed the offense with
 an opportunity to respond to any information gathered from the Department of Health's
 inspection of records before the Department of Health makes a decision concerning licensure;
        (g) for information related to a minor who has committed a sexual offense, a felony, or
 an offense that if committed by an adult would be a misdemeanor, the Department of Health to
 determine whether an individual meets the background screening requirements of Title 26,
 Chapter 21, Part 2, Clearance for Direct Patient Access, with the understanding that the
 department must provide the individual who committed the offense an opportunity to respond
 to any information gathered from the Department of Health's inspection of records before the
 Department of Health makes a decision under that part; and
        (h) for information related to a minor who has committed a sexual offense, a felony, or
 an offense that if committed by an adult would be a misdemeanor, the Department of Health to
 determine whether to grant, deny, or revoke background clearance under Section 26-8a-310 for
 an individual who is seeking or who has obtained an emergency medical service personnel
 license under Section 26-8a-302, with the understanding that the Department of Health must
 provide the individual who committed the offense an opportunity to respond to any information
 gathered from the Department of Health's inspection of records before the Department of
 Health makes a determination.
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        H.B. 179                                                                   01-17-22 4:51 PM
        (3) [With the consent of the juvenile court, a] A juvenile court record may be inspected
 by the child, by persons having a legitimate interest in the proceedings, and by persons
 conducting pertinent research studies[.] if the juvenile court:
        (a) finds that there is good cause for the inspection; and
        (b) provides written consent to the inspection.
        (4) (a) If a petition is filed charging a minor who is 14 years old or older with an
 offense that would be a felony if committed by an adult, the juvenile court [shall] may make
 available to any person upon request the petition, any adjudication or disposition orders, and
 the delinquency history summary of the minor charged [unless the records are closed by the
 juvenile court upon findings on the record for good cause.] if:
        (i) notice of the request is provided to the minor and the minor's attorney; and
        (ii) the juvenile court finds there is good cause to make the records available.
        (5) A juvenile probation officer's records and reports of social and clinical studies are
 not open to inspection, except by consent of the juvenile court, given under rules adopted by
 the board.
        (6) The juvenile court may charge a reasonable fee to cover the costs associated with
 retrieving a requested record that has been archived.
        Section 2. Section 80-6-1001 is amended to read:
        80-6-1001. Definitions.
        As used in this part:
        (1) "Abstract" means a copy or summary of a court's disposition.
        (2) (a) "Agency" means a state, county, or local government entity that generates or
 maintains records relating to a nonjudicial adjustment or an adjudication for which
 expungement may be ordered under this part.
        (b) "Agency" includes a local education agency as defined in Section 53E-1-102.
        (3) "Expunge" means to seal or otherwise restrict access to an individual's record held
 by a court or an agency when the record relates to a nonjudicial adjustment or an adjudication
 of an offense in the juvenile court.
        (4) "Petitioner" means an individual applying for expungement under this part.
        Section 3. Section 80-6-1003 is amended to read:
        80-6-1003. Court records -- Abstracts.
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        01-17-22 4:51 PM                                                                          H.B. 179
        [(1) (a) Except as otherwise provided in this part, if a minor's juvenile record is
 expunged, and upon a court order, all photographs or records under Section 80-6-608 shall be
 destroyed by an agency.]
        [(b) A record of a minor's fingerprints may not be destroyed by an agency.]
        [(2)] (1) A court or agency with custody of an individual's record related to an offense
 that the individual is alleged to have committed, or an offense that the individual committed,
 before the individual was 18 years old may not disclose the record to a federal agency that is
 responsible for criminal justice research or proceedings unless the court or the agency is
 required to share the record under state or federal law.
        [(3)] (2) An abstract of a juvenile court record for an adjudication of a traffic offense
 shall be submitted to the Department of Public Safety as provided in Section 53-3-218.
        Section 4. Section 80-6-1004 is amended to read:
        80-6-1004. Petition to expunge records of adjudication, unsuccessful nonjudicial
 adjustment, or arrest, investigation, or detention -- Notice and hearing on petition --
 Expungement order -- Service of expungement order.
        (1) (a) [Except as provided in Subsection (4), an] An individual who has been
 adjudicated by a juvenile court for an offense may petition the juvenile court for an order to
 expunge the individual's entire juvenile court record and any related records in the custody of
 an agency if:
        (i) the individual has reached 18 years old; and
        (ii) at least one year has passed from the date of:
        (A) termination of the continuing jurisdiction of the juvenile court; or
        (B) the individual's unconditional release from the custody of the division if the
 individual was committed to secure care.
        [(b) The juvenile court may waive the requirements in Subsection (1)(a) if the juvenile
 court finds, and states on the record, the reason why the waiver is appropriate.]
        [(c) The petitioner shall include in the petition described in Subsection (1)(a):]
        [(i) any agency known or alleged to have any records related to the offense for which
 expungement is being sought; and]
        [(ii) the original criminal history report obtained from the Bureau of Criminal
 Identification in accordance with Section 53-10-108.]
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        H.B. 179                                                                          01-17-22 4:51 PM
         [(d) The petitioner shall send a copy of the petition described in Subsection (1)(a) to
 the county attorney or, if within a prosecution district, the district attorney.]
         (b) If an individual's juvenile record consists solely of nonjudicial adjustments and
 includes an unsuccessful nonjudicial adjustment, the individual may petition the juvenile court
 for an order to expunge the individual's juvenile court record and any related records in the
 custody of an agency when the individual has reached 18 years old.
         (c) If an individual's juvenile record consists solely of arrest, investigation, or detention
 records and the individual was not adjudicated for an offense, the individual may petition the
 juvenile court for an order to expunge the individual's juvenile court record and any related
 records in the custody of an agency if:
         (i) the individual has reached 18 years old;
         (ii) there are no delinquency proceedings pending against the individual; and
         (iii) for the case for which the expungement is sought:
         (A) charges are screened by the investigating law enforcement agency and the
 prosecuting attorney makes a final determination that no charges will be filed against the
 individual;
         (B) all charges contained in the case are dismissed with prejudice;
         (C) all charges contained in the case are dismissed without prejudice or without
 condition and the prosecuting attorney consents to the expungement; or
         (D) the statute of limitations expires on all charges contained in the case.
         (2) (a) If a petitioner is 18 years old or older and seeks an expungement under
 Subsection (1)(a), the petition shall include a criminal history report obtained from the Bureau
 of Criminal Identification in accordance with Section 53-10-108.
         (b) If a petitioner seeks an expungement under Subsection (1)(b) or (c), the petitioner is
 not required to include a criminal history report, as described in Subsection (2)(a), with the
 petition.
         (3) The juvenile court may waive the age requirement in Subsection (1)(a), (b), or (c) if
 the juvenile court finds and states on the record the reason why the waiver is appropriate.
         [(e) (i)] (4) Upon the filing of a petition described in Subsection (1)[(a)], the juvenile
 court shall:
         [(A)] (a) set a date for a hearing; and
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        01-17-22 4:51 PM                                                                              H.B. 179
           (b) at least 30 days before the day on which the hearing on the petition is scheduled:
           [(B)] (i) notify the county attorney or district attorney and the agency with custody of
 the records [at least 30 days before the day on which the hearing of the pendency of the petition
 is scheduled; and] that a petition has been filed;
           (ii) send a copy of the petition to the county attorney or district attorney; and
           [(C)] (iii) notify the county attorney or district attorney and the agency with custody of
 the records [that the petitioner is asking the court to expunge] of the date of the hearing.
           [(ii) (A)] (5) (a) The juvenile court shall provide a victim with the opportunity to
 request notice of a petition described in Subsection (1)(a).
           [(B)] (b) Upon the victim's request under Subsection [(1)(e)(ii)(A)] (5)(a), the victim
 shall receive notice of the petition at least 30 days before the day on which the hearing is
 scheduled if, before the day on which an expungement order is made, the victim or, in the case
 of a child or an individual who is incapacitated or deceased, the victim's next of kin or
 authorized representative submits a written and signed request for notice to the juvenile court
 in the judicial district in which the offense occurred or judgment is entered.
           [(C)] (c) The notice described in Subsection [(1)(e)(ii)(B)] (5)(b) shall include a copy
 of the petition described in Subsection (1)(a) and any statutes and rules applicable to the
 petition.
           [(2)] (6) (a) At the hearing described in Subsection [(1)(e)(i)] (4), the county attorney
 or district attorney, a victim, and any other individual who may have relevant information
 about the petitioner may testify.
           (b) The juvenile court may waive the hearing for the petition described in Subsection
 (1) if:
           (i) there is no victim or the victim agrees to the waiver if there is a victim; and
           (ii) the prosecuting attorney agrees to the waiver.
           [(b)] (7) (a) In deciding whether to grant a petition described in Subsection (1)(a) for
 expungement, the juvenile court shall consider whether the rehabilitation of the petitioner has
 been attained to the satisfaction of the juvenile court, including the petitioner's response to
 programs and treatment[,] and the petitioner's behavior subsequent to the adjudication[, and the
 nature and seriousness of the conduct].
           [(c) (i)] (b) Except as provided in Subsection [(2)(c)(ii)] (8), a juvenile court may grant
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        H.B. 179                                                                     01-17-22 4:51 PM
 a petition under Subsection (1)(a) or (b) and order expunged all of the petitioner's records under
 the control of the juvenile court and an agency or an official if the juvenile court finds that:
        [(A)] (i) the petitioner has not, in the five years preceding the day on which the petition
 described in Subsection (1)(a) or (b) is filed, been convicted of a violent felony;
        [(B)] (ii) there are no delinquency or criminal proceedings pending against the
 petitioner; and
        [(C)] (iii) a judgment for restitution entered by the juvenile court on the adjudication,
 or any restitution that was a condition of the unsuccessful nonjudicial adjustment, f