Restoration of Rights, Pardon, Expungement & Sealing
Last updated: November 24, 2017
I. Restoration of Civil/Firearms Rights
Persons convicted of a felony or certain misdemeanors1 lose the right to vote in Utah. See Utah Code Ann. § 20A-2-101(2)(b) (“Convicted” felons or misdemeanants whose rights have not been restored may not vote.). However, the right to vote is restored automatically upon (1) a sentence to probation by the sentencing court; or (2) upon successful completion of a term of incarceration. §§ 20A-2-101.3(2); 20A-2-101.5(2)(a), (c). Rights are also restored to those convicted of a felony upon grant of parole by the Board of Pardons. § 20A-2-101.5(2)(b). This applies to federal and out-of-state felony convictions.2 § 20A-2-101.5(1). Therefore, as a practical matter, anyone not in prison may vote in Utah.
Persons convicted of a felony are ineligible to serve on a jury unless and until the conviction is expunged. Utah Code Ann. § 78B-1-105(2).
A person may be removed from office for “high crimes and misdemeanors” or malfeasance in office. Utah Code Ann. §§ 77-5-1 (impeachment of governor and other state officers); 77-6-1 (removal from office of justices of the peace and municipal officers). Under Utah Code Ann. § 20A-2-101.5(3), the right to hold elective office is restored when
“(a) all of the felon’s felony convictions have been expunged; or
(b) (i) ten years have passed since the date of the felon’s most recent felony conviction; (ii) the felon has paid all court-ordered restitution and fines; and (iii) for each felony conviction that has not been expunged, the felon has (A) completed probation in relation to the felony; (B) been granted parole in relation to the felony; or (C) successfully completed incarceration associated with the felony.”3
Restrictions on firearms have been tightened in recent years. Now no persons convicted of any felony4 may possess any firearm or other “dangerous weapon,” defined broadly. Utah Code Ann. §§ 76-10-503(1) and (2).5 Persons convicted of “crime of violence” or on probation or parole, formerly the only category regulated, are subject to greater penalties. Id. Firearms restrictions may be removed only by expungement (if eligible) or pardon.
II. Discretionary Restoration Mechanisms
A. Executive pardon
Pardon authority is vested in the Board of Pardons and Paroles. Utah Const. art. VII, § 12; Utah Code Ann. § 77-27-5(4). (The governor may grant respites or reprieves in all cases of convictions for offenses against the state except treason or conviction on impeachment, but these respites or reprieves may not extend beyond the next session of the board.). The Board is composed of five full-time salaried members, and up to five pro tem members who fill in and are paid on a per diem basis, all appointed by the governor with the consent of the Utah senate to five-year terms. Utah Code Ann. 77-27-2.6
The Board only considers those whose sentences have been expired for five years, but may dispense with this requirement if good cause exists. Utah Admin. Code R671-315 (A), (D). Only state offenders are eligible. Utah Code Ann. 77-27-5(1)(a).
Pardon restores all rights, and relieves legal disabilities. See Utah Code Ann. 77-27-1(12) (defining “pardon” as “an act of grace by an appropriate authority exempting a person from punishment for a crime”). The Board generally specifies whether a pardon restores firearms rights. See § 77-27-5(1)(a).
See Utah Code Ann. § 77-27-5(1)(a), (c); Utah Admin. Code R671-304, R671-305. Pardon may not be granted except after a full hearing before the Board, in open session, and after previous notice of the time and place of the hearing has been given to the victim, if they can be located; the county, district, or city attorney where case prosecuted; the presiding judge where conviction entered; and the chief law enforcement officer of arresting agency. See Utah Code Ann. 77-27-5(1)(c); Utah Admin. Code § 671-315(C). Pardon decisions are made by majority. The Board may deny a pardon hearing. Utah Admin. Code § 671-315(C). The proceedings of the Board shall be recorded and filed as provided by statute with all papers used upon the hearing. Id. § 671-304. Utah Const. art VII, § 12. The decision of the Board is reduced to writing, including a rationale for the decision, and published. Utah Admin. Code § 671-305.
Frequency of Grants
The Board receives only three to five requests for pardon a year, and about 10 pardons have been granted in the past decade. The possibility of regaining rights through judicial expungement makes the pardon process less important. Source: Board of Pardons and Paroles.
Administrator, Board of Pardons and Paroles
448 Winchester St., #300
Murray, UT 44107
B. Judicial sealing or expungement
In 2010, the legislature enacted statutes significantly amending Utah’s laws on expungement. See Utah Expungement Act of 2010, 2010 Utah Laws Ch. 283 (H.B. 21), codified at Utah Code Ann. §§ 77-40-101 et seq., available at http://www.le.utah.gov/UtahCode/section.jsp?code=77-40. The 2010 law amended, inter alia, the types of crimes eligible for expungement, the period of time that must have elapsed in order to be eligible, and the application process.
Under the amended law, a person convicted of one felony, or up to two Class A misdemeanors (in separate criminal episodes), or up to three class B misdemeanors (same), or up to four convictions of any degree, excluding infractions and any traffic offenses, is eligible to apply to the Department of Public Safety for a certificate of eligibility to expunge the record of conviction. Utah Code Ann. § 77-40-105(4). Certain crimes are excepted: capital, first degree, and violent felonies, registerable sex offenses, vehicular homicide, or felony driving under the influence/reckless driving. § 77-40-105(2)(a). An eligibility determination includes considering prior expungements, including those from out of state. §§ 77-40-105(4), 77-40-106(2)(b). Infractions, traffic offenses, and “minor regulatory offenses'” (defined at § 77-40-102(10) as any local ordinance offenses or Class B or C misdemeanor offense not contained within the Criminal Code, with exceptions including drug possession and DUI offenses) do not count against expungement eligibility. § 77-40-105(4) (added by SB-12, § 4 (2017)). Fines and restitution must be paid before expungement may be ordered. § 77-40-105(3). Application forms and instructions are available at http://www.utcourts.gov/howto/expunge/#district.
Per Utah Code Ann § 77-40-105(3)(c):
(a) seven years in the case of a felony;
(b) ten years in the case of a misdemeanor DUI offense or felony drug trafficking offense;
(c) five years in the case of a class A misdemeanor, or felony drug possession offense;
(d) four years in the case of a class B misdemeanor; or
(e) three years in the case of any other misdemeanor or infraction.
In addition to these time periods, eligibility for expungement may be defeated by various combinations of prior offenses. In 2016 and again in 2017 the types of offenses that may defeat eligibility were restricted to exclude minor offenses and pardoned offenses.
See Utah Code Ann. §§ 77-40-103 (overview); 77-40-106 (Application for certificate of eligibility); 77-40-107 (Petition for expungement); 77-40-108 (Distribution of order). See also http://publicsafety.utah.gov/bci/documents/CriteriaforaCertificateofEligibility.pdf. A petitioner must apply for and receive a “certificate of eligibility,” which is issued after investigation by the Utah Bureau of Criminal Identification, before filing it with a petition for expungement. See§ 77-40-105, 77-40-107. The statutory application fee is $50, with an additional $56 issue fee. See § 53-10-202.5; http://publicsafety.utah.gov/bci/documents/CriteriaforaCertificateofEligibility.pdf. A certificate of eligibility may be applied for at Utah Department of Public Safety, Bureau of Criminal Identification, 3888 W 5400 S, Salt Lake City, UT 84129, 801-965-4445. The application is available at http://publicsafety.utah.gov/bci/documents/expapp52012.pdf. The petitioner must deliver a copy of the petition and certificate to the prosecuting agency. § 77-40-107(1).
The prosecuting attorney must notify the victim. Utah Code Ann. § 77-40-107(2). The court may request a written response from the Division of Adult Parole and Probation of the Department of Corrections, which shall include the reasons probation was terminated and certification that the petitioner has completed all requirements of sentencing and probation or parole. §§ 77-40-107(4)(a), (b). A copy of this response is provided to the petitioner and the prosecuting attorney. § 77-40-107(4)(c). If the prosecutor or victim objects to the petition, or the Division of Adult Probation and Parole provides a written response, the petitioner may respond in writing within 15 days after receipt. § 77-40-107(5). Upon objection from any party, the court sets a hearing, with notice provided to the petitioner, prosecuting attorney, and victim. § 77-40-107(6)(a). If no objection is received within 60 days of the petition’s filing date, the court has authority to grant expungement without a hearing. § 77-40-107(7). The court “shall issue an order of expungement” if it finds by clear and convincing evidence that the petition and certificate of eligibility are sufficient, statutory requirements are met, and that it is not “contrary to the interests of the public to grant the expungement.” Id. § 77-40-107(8).
A person receiving expungement “may respond to any inquiry as though the . . . conviction did not occur.” Utah Code Ann. 77-40-108(2). Otherwise expungement is of uncertain effect. For example, an expunged conviction may still be used for various purposes, such as in subsequent sentencing, eligibility for expungement of a future conviction, or firearms prosecutions. §§ 77-40-105(4), 77-40-109(4), (5); Doe v. Dep’t of Pub. Safety, 782 P.2d 489 (Utah 1989) (Department of Public Safety could not ask about or obtain expunged convictions of applicant for employment with Department of Corrections; prohibition against employer asking about expunged convictions was not exception to or limitation upon general expungement provisions; and expungement statute’s failure to limit rights of licensing agencies to receive information did not give Department right to expunged information.); Thompson v. Dep’t of Treasury, 557 F. Supp. 158 (D. Utah 1982) (judicial expungement granted to petitioner under Utah statutes did not completely erase prior convictions and, therefore, petitioner was not entitled to relief from federal firearms disability).7 See Michael D. Mayfield, Revisiting Expungement: Concealing Information in the Information Age, 1997 Utah L. Rev. 1057, 1058-60 (1997).
As of May 14, 2013, “[u]pon granting a pardon, the board shall issue an expungement order, directing any criminal justice agency to remove the recipient’s identifying information relating to the expunged convictions from its records.” § 77-27-5.1(1). A person pardoned prior to that date is entitled to expungement under the same authority. Utah Code Ann. § 77-40-105(9). “An expungement order, issued by the board, has at least the same legal effect and authority as an order of expungement issued by a court, pursuant to Title 77.” § 77-27-5.1(2). In 2017, § 77-27-5.1 was amended to provide that pardoned convictions do not count against expungement availability. See SB-12, § 2 (2017).
2. Nonconviction records
Utah Code Ann. 77-40-104. A person arrested or formally charged with an offense may, at least 30 days after arrest, apply for a certificate of eligibility and petition for expungement if no charges are filed, the case dismissed is with prejudice, the person is acquitted, or charges are dismissed.
3. Juvenile records
Expungement is governed by Utah Code Ann. § 78A-6-1105(1). Upon reaching age 18 and filing a petition with the court, a juvenile offender with no adult criminal record is eligible for expungement following a one-year waiting period and completion of all sentence requirements. § 78A-6-1105(1)(a)(i)–(ii), (e). Expungement seals the record, and it can be opened only by petitioning the court. § 78A-6-1105(4).
Frequency of Expungement Grants
According to the Office of Utah Court Administration, approximately half of all expungement petitions filed are granted.
Patricia A. Nosanchuk
Court Data Processing
III. Nondiscrimination in Licensing and Employment:
Utah’s Expungement Act provides that “a person who has received an expungement of an arrest or conviction . . . may respond to any inquiry as though the arrest or conviction did not occur.” Utah Code Ann. § 77-40-104(2). However, the Division of Occupational and Professional Licensing, Peace Officer Standards Training, and State Office of Education may receive information contained in expunged records upon request. § 77-40-109(2). The Division of Occupational and Professional Licensing may access criminal background information to screen license applicants for pharmacy (§ 58-17b-307), nursing (§ 58-31b-302), massage therapy (§ 58-47b-302), construction trades such as alarm companies and agents (§ 58-55-302), security personnel (§ 58-63-302), and deception detection examiners (§ 58-64-302).
A license may be denied, or restricted, where an applicant or licensee has engaged in “unprofessional conduct.” §§ 58-1-304, 58-1-401. “Unprofessional conduct” includes engaging in
“conduct that results in conviction, a plea of nolo contendere, or a plea of guilty or nolo contendere which is held in abeyance pending completion of probation with respect to a crime of moral turpitude or any other crime that, when considered with the functions and duties of the occupation or profession for which the license was issued or is to be issued, bears a reasonable relationship to the licensee’s or applicant’s ability to safely or competently practice the occupation or profession.”
§ 58-1-501(2). “Unprofessional conduct” is further detailed in U.A.C. R156-1-302 to include various aggravating and mitigating factors. See also § 13-12-3(6)(b) (restricting termination of gasoline franchise except “Where the alleged grounds are caused by the conviction of the dealer or distributor . . . of a criminal offense directly related to the business).
In 2009, Utah enacted a law that prohibits an employer from requesting a Social Security number, date of birth or driver license number before an applicant is offered a job, unless requested during the time in the employer’s selection process when it obtains an applicant’s criminal history, credit history, or driving record. Utah Code Ann. §§ 34-46-101 et seq.
B. Ban-the-box in public employment
As of May 8, 2017, public employers may not require an applicant to disclose convictions on an employment application or before an initial interview. Utah Code Ann. § 34-52-201(1) – (2). (enacted by HB-156 (2017)). If no interview is conducted, an employer may not require disclosure until after a conditional offer of employment is made. § 34-52-201(2)(c). The law covers the state (and its agencies and subunits), state institutions of higher education, and municipalities and other political subdivisions of the state. § 34-52-102(3). The law does not apply in the following cases:
(a) if federal, state, or local law, including corresponding administrative rules, requires the consideration of an applicant’s criminal conviction history;
(b) to a public employer that is a law enforcement agency;
(c) to a public employer that is part of the criminal or juvenile justice system;
(d) to a public employer seeking a nonemployee volunteer;
(e) to a public employer that works with children or vulnerable adults;
(f) to the Department of Alcoholic Beverage Control created in Section 32B-2-203;
(g) to the State Tax Commission; and
(h) to a public employer whose primary purpose is performing financial or fiduciary functions.
- In 2011, the Utah Legislature amended the law to prohibit a person convicted of a misdemeanor for violating Utah’s Election Code from registering or exercising the right to vote until that right had been restored. At the same time, the legislature enacted a law to provide the process by which a person convicted of a disqualifying misdemeanor may have this right restored. See 2011 Utah Laws Ch. 395 (H.B. 31).
- Until 1998 persons convicted of a felony could vote in Utah. See 1998 Utah Laws Ch. 266 (H.B. 190). Under the amendments to the law that year, persons convicted of a felony were prohibited from voting, but the mechanisms enacted to restore this right excepted federal and out-of-state offenders from the relief extended to those convicted in Utah state courts. See id. In 2006, the Utah Legislature corrected this gap in the law by identifying a “convicted felon” as a person convicted in “any state or federal court of the United States.” See 2006 Utah Laws Ch. 28 (S.B. 47). This clarification guarantees that the proper legal mechanism exists to ensure that the right to vote is automatically restored for all persons convicted of a felony in Utah upon release from prison.
- Similarly, under Utah Code Ann. § 20A-2-101.3(3), a misdemeanant’s right to hold elective office is restored when: (a) the misdemeanor under the Election Code has been expunged; or (b)(i) five years have passed since the misdemeanant’s most recent misdemeanor conviction under the Election Code;(ii) the misdemeanant has paid all court-ordered restitution and fines; and (iii) for each misdemeanor conviction that has not been expunged, the misdemeanant has (A) completed probation in relation to the misdemeanor; (B) been granted parole in relation to the misdemeanor; or (C) successfully completed the term of incarceration associated with the misdemeanor.
- In 2012, the Utah legislature amended § 76-10-503(1) to add illegal aliens to the list of persons who may not possess any firearm or other “dangerous weapon.” See 2012 Utah Laws Ch. 317 (H.B. 395). In those same amendments, the legislature also added a number of affirmative defenses for persons restricted from possessing firearms yet charged with possession or transfer of firearms or other weapons. See Utah Code Ann. § 76-10-503(7).
- Until 1993 amendment, these restrictions did not apply to target concessions, shooting ranges, competitions, and hunting. These exceptions are now available only to juvenile offenders. See 1993 Utah Laws 2nd Sp. Sess. Ch. 10 (S.B. 2). See also Utah Code Ann. §§ 76-10-509, 76-10-512.
- Until 1992 constitutional amendment, the Board of Pardons consisted of the governor, the Attorney General, and the Justices of the Supreme Court. See Utah Const. art. VII, § 12 (1991); 1992 Utah Laws Sen. Jt. Res. 8. See also Guide to Executive Clemency Among the American States, Nat’l Governors’ Ass’n 149-50 (1988),available at https://www.ncjrs.gov/pdffiles1/Digitization/114588NCJRS.pdf.
- Both Doe and Thompson were decided prior to the 2010 amendments to the Utah expungement law that allowed employers to inquire about arrests or convictions only to the extent that they have not been expunged and the records sealed. The Utah legislature deleted text from the statute providing that under an expungement order, the “petitioner shall be deemed judicially pardoned” (Doe, 782 P.2d at 495) and “the arrest, detention, and any further proceedings in the chase shall be deemed not to have occurred” (Thompson, 557 F. Supp. at 166-67). The Thompson court found the deleted text to amount to a “complete erasure of the conviction,” whereas the text pertaining to employers only effected a limited erasure of the conviction. Thompson, 557 F. Supp. at 166-68. The current text of the statute provides more generally that “[u]nless otherwise provided by law or ordered by a court of competent jurisdiction to respond differently, a person who has received an expungement of an arrest or conviction under this chapter may respond to any inquiry as though the arrest or conviction did not occur.” Utah Code Ann. § 77-40-108(2).