Restoration of Rights & Record Relief
Last updated: April 26, 2020
I. Loss & 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).
C. Public office
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. Pardon policy & practice
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. Utah Code Ann. § 77-27-5(4)). 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. 77-27-2.6.6
Only people with state offenses are eligible. Utah Code Ann. 77-27-5(1)(a). 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 -1 (2)(b)(A), (D). An individual who is eligible for expungement must first exhaust that remedy: See id. at 2(a): “The Board may consider an application for a pardon . . . after the applicant has exhausted all judicial remedies, including expungement, in an effort to ameliorate the effects of the conviction.”
Pardon restores all rights, and relieves legal disabilities. See Utah Code Ann. 77-27-1(142) (defining “pardon” as “an act of grace that forgives a criminal conviction and restores the rights and privileges forfeited by or because of the criminal conviction” 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 ).
Pardons can only be granted after a full hearing before the Board in open session. Utah Constitution, Art. VII, §12. See also Utah Code Ann. § 77-27-5(1)(a), (c) (e); Utah Admin. Code R671- 304 (Hearing Record), R671-305 (Board Decisions and Orders). The application form and its instructions are found on the Board’s website: https://bop.utah.gov/index.php/pardons/pardon-instructions.
The application process is onerous, and not every applicant is accorded a hearing. As explained on the Board’s website, that
the Pardon Application will require you to obtain and submit police reports, court dockets, and pre-sentence investigation reports for all convictions for which a pardon is sought. If you are unable to obtain and submit this information, you will be required to explain and document all of your attempts to procure the requisite information, and the reasons it is unavailable. Upon request from the Board, the Utah Bureau of Criminal Identification may conduct a background investigation of the applicant. In all cases, applicants must include a current copy of their Utah criminal background report, obtained from BCI, as part of the Pardon Application.
The Board must give notice to the victim of the time and place of the hearing, “if the victim can be located.” Based on a law enacted in early 2019, timely prior notice of the time and location of the hearing shall be given to the petitioner and, whenever possible, the victim or the victim’s representative shall be notified of any hearing if the victim or representative has requested notification and provided current contact information to the board. See HB0301 (Mar. 22, 2019 (amending §77-27-5(2)(a) and (c). The county or city attorney’s office responsible for prosecution of the case; the sentencing court, and the presiding judge where conviction entered; and the chief law enforcement officials responsible for the defendant’s arrest and conviction, must also be notified of any board hearing through the board’s website. Id. (amending §77-27-5(2)(b). 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(6)C). The proceedings of the Board shall be recorded and filed as provided by statute, along with all papers used in the hearing. Id. § 671-304. Utah Const. art VII, § 12 (2)(c). The decision of the Board is reduced to writing, including a rationale for the decision, and published. Utah Admin. Code § 671-305.
Pardon Application Instructions
A summary of the rules and procedures for pardon applications are available on the website of State of Utah: Board of Parsons and Parole, https://bop.utah.gov.
E. Frequency of grants
Until recently, the possibility of regaining rights through judicial expungement has made the pardon process less important, with few applicants and fewer grants. Since 2013, the board’s pardon caseload has increased exponentially, largely because people with relatively minor offenses were being rejected for expungement by the Board of Criminal Investigation. For example, in 2014 54 people requested pardons, of which 24 were granted (25 were denied a hearing). See Report to the Utah Legislature: A Performance Audit of the Board of Pardons and Parole (2016).
Administrator, Board of Pardons and Paroles
448 Winchester St., #300
Murray, UT 44107
III. Expungement, sealing & other record relief
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.
In 2019, the legislature enacted HB 431, a “clean slate” law that will provide for automatic expungement of a variety of non-conviction, infraction, and misdemeanor criminal records (and deletion of certain traffic records) when the law takes effect on May 1, 2020. The “clean slate” law, which will apply retroactively to cases adjudicated prior to its effective date, is described in further detail at the conclusion of this section.
A person convicted of no more than 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). Up to two drug felonies and three drug misdemeanors are eligible. 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 offenses 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).7 Application forms and instructions are available at http://www.utcourts.gov/howto/expunge/#district.
Eligibility periods for petitions
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 categories of offenses that may defeat eligibility were narrowed to exclude minor offenses and pardoned offenses. In 2020, these eligibility periods and the requirement of a certificate of eligibility were made inapplicable to convictions for possession of marijuana for medicinal purposes. § 77-40-103 (5).
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. In 2020, the requirement of a certificate of eligibility was made inapplicable to convictions for possession of marijuana for medicinal purposes. § § 77-40-103 (5), 77-40-107(8)(e). 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. 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). In 2020, § 77-40-107 was amended to provide that if an expungement is for a charge dismissed in accordance with a plea in abeyance agreement and the charge is one that is an offense eligible to be used for enhancement, “there is good cause for the court to grant the expungement.” § 77-40-107(8)(e).
According to a report issued in 2016, the BCI has turned away numerous applicants based on minor prior offenses, causing an increase in the number of people applying for pardon.
Effect of expungement
Utah’s Expungement Act provides that a person receiving an expungement “may respond to any inquiry as though the . . . conviction did not occur.” Utah Code Ann. 77-40-108(2). However, an expunged conviction may still be used for various law enforcement-related purposes, such as in subsequent sentencing, or eligibility for expungement of a future conviction. § 77-40-109(4), (5). In addition, the Departments of Commerce and Insurance, the State Board of Education, and the Office of Peace Officer Standards Training are authorized to receive information contained in expunged records upon specific request. § 77-40-109(2). See also 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).
An expunged conviction may not be accessed by the Department of Professional Licensing for licensing purposes. See 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; and expungement statute’s failure to limit rights of licensing agencies to receive information did not give Department right to expunged information). The 2010 amendments to the Utah expungement law, which allowed employers to inquire about arrests or convictions only to the extent that they have not been expunged and the records sealed, appear to confirm the result in Doe. 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). See generally Michael D. Mayfield, Revisiting Expungement: Concealing Information in the Information Age, 1997 Utah L. Rev. 1057, 1058-60 (1997).
A law enacted in 2019, HB 90 (effective May 14, 2019) makes clear that an applicant seeking employment from a private employer “may answer a question related to an expunged criminal record as though the action underlying the expunged criminal record never occurred.” § 34-52-301. The new law also clarifies that a public employer may not make an inquiry related to expunged criminal history—and an applicant may answer such a question “as though the action underlying the expunged criminal record never occurred,” except for the following preexisting exemptions for disclosure: (1) where federal, state, or local law “requires the consideration of an applicant’s criminal conviction history”; (2) where the public employer is a law enforcement agency, part of the criminal or juvenile justice system, works with children or vulnerable adults, whose primary purpose is performing financial or fiduciary functions, the Department of Alcoholic Beverage Control, or the State Tax Commission; or (3) where the employer is seeking a nonemployee volunteer. § 34-52-201.
B. Pardoned offenses
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).
C. Victims of force, fraud or coercion
Vacatur and expungement available on petition where offense committed while the petitioner subject to force, fraud, or coercion. Eligible convictions include possession of a controlled substance, prostitution, criminal trespass, theft, possession of forged documents, unlawful possession of another’s identification documents, prostitution, or sexual solicitation. Utah Code Ann. §§ 78B-9-104(1)(g), 78B-9-108(2)(b). Eligibility periods in Utah Code Ann § 77-40-105(3)(c) (above) appear to apply. See also the 2019 law discussed below making juveniles eligible for vacatur of prostitution and related convictions.
D. Non-conviction record
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, if the charges are dismissed and the limitations period has expired on all charges, or if the person is acquitted. No waiting period where person acquitted.
In March 2018, eligibility criteria were expanded to permit expungement where the entire case is dismissed without prejudice or without condition AND (1) the prosecutor consents in writing to the issuance of a certificate of eligibility, OR (2) at least 180 days have passed since the date of dismissal. § 77-40-104(c)(iii). See SB 62. Under the amended law, the court is required to issue an order of expungement if the court finds by clear and convincing evidence that the prosecutor provided written consent and has not filed and does not intend to refile related charges. The person seeking expungement may reapply for a certificate of eligibility if the court denies the original petition based on the prosecutor’s intent to refile charges and charges are not refiled within 180 days of the date the court denies the original petition. § 77-40-107(8)(c). The prosecutor opposing expungement of a case dismissed without prejudice or without condition must have a good faith basis for the intention to refile the case. § 77-40-107(9).
In addition, Utah’s 2019 clean slate law provides for an automated expungement process (effective May 1, 2020) for acquittals, dismissals with prejudice, certain dismissals due to a plea in abeyance agreement, and less serious misdemeanor convictions, as described below.
E. Juvenile records
Utah Code Ann. § 78A-6-1105(1) governs expungement. Upon reaching age 18, a person with a juvenile record is eligible for expungement following a one-year waiting period and completion of all sentence requirements (this prerequisites may be waived by the court). § 78A-6-1105(1)(a)(i)–(ii), (e). Persons seeking expungement must file a petition to the court. § 78A-6-1105(1)(a)–(e). The court may seal all of petitioner’s records within the juvenile court’s control if the individual has not been convicted of or have a pending proceeding for a felony or misdemeanor. § 78A-6-1105(2)(c). At a hearing on the petition, the court will consider whether the juvenile has rehabilitated to the court’s satisfaction. § 78A-6-1105(2)(b). Expungement seals the record, and it can be opened only by petitioning the court. § 78A-6-1105(4).
Vacatur for juvenile victims of human trafficking: In 2019, a new § 78A-6-1114 was enacted, creating a path to a clean record for a person with juvenile records related to prostitution and related offenses, if subject to “force, fraud, or coercion.” See HB 108. The law “clarifies that children who are engaged in commercial sex should be treated as victims.” Persons seeking vacatur must file a petition to the court. § 78A-6-114(1)(a). The court will hold a hearing and allow prosecutors and victims to be heard if they appear. § 78-6-114(1)(e). The “court shall presumptively grant vacatur” for prostitution, aiding prostitution, or sex solicitation records unless the juvenile purchased sexual activity. § 78A-6-1114(2)(b)(iii). The court shall vacate other records if it finds by a preponderance of the evidence that the juvenile was subject to force, fraud, or coercion at the time of the conduct. § 78A-6-1114(2)(b)(ii). To prevent creating records in the future, HB 108 adds a provision to Utah’s sexual solicitation statute that prohibits law enforcement officials from initiating delinquency proceedings against children they encounter engaged in commercial sex or solicitation. See § 76-10-1313(6).
F. Frequency of expungement grants
According to the Office of Utah Court Administration, approximately half of all expungement petitions filed are granted.
G. Clean slate automatic process
Effective May 1, 2020, Utah’s 2019 clean slate law authorizes automatic expungement or deletion of certain non-conviction, infraction, and misdemeanor records. HB 431 (2019). Automated relief applies both to cases adjudicated on or after May 1, 2020, and to cases adjudicated before that date. § 77-40-116(1).
Non-conviction records: If a district or justice court determines that a case has resulted in an acquittal on all charges or in dismissal with prejudice, the court must issue an expungement order, without any petition required. §§ 77-40-114(2)-(3). (Note: a dismissal with prejudice is not eligible if the dismissal is a result of successful completion of an agreement governed by § 77-2a-3(2)(b), but it may be eligible for automatic expungement under § 77-40-102(5), described directly below.) The court must—based on information available—notify the Bureau of Criminal Identification and prosecuting agency of the order of expungement; the bureau must notify all law enforcement agencies identified in the case of the order of expungement.
Conviction and plea in abeyance records: With respect to convictions and cases dismissed following a plea in abeyance, only cases defined as “clean slate eligible cases” are eligible for automatic expungement. § 77-40-102(5). A case must satisfy several criteria to qualify as eligible:
• Each conviction within the case—or if the case is dismissed as a result of successful completion of a plea in abeyance agreement under § 77-2a-3(2)(b), each charge within the case—must either be (A) a misdemeanor conviction for possession of a controlled substance under § 58-37-8(2)(a)(i); (B) a class B or class C misdemeanor conviction; or (C) an infraction conviction;
• The person must not have been found in the case to be not guilty by reason of insanity;
• The person must be no criminal proceedings pending against them in the state;
• The person must not have been convicted of specified combinations of prior offenses in Utah state courts—excluding infractions, traffic offenses, or minor regulatory offenses8;
• The case must not have an outstanding criminal judgment “accounts receivable” (defined in § 77-32a-101 to include “any amounts owed by a criminal defendant arising from a criminal judgment that has not been paid,” including fines, costs and restitution), even if it has been entered as a civil judgment and transferred to the Office of State Debt Collection;
• The following time periods must have elapsed from the day on which the case was adjudicated: (1) at least 5 years for a class C misdemeanor or an infraction; (2) at least 6 years for a class B misdemeanor; and (3) at least 7 years for a class A conviction for possession of a controlled substance in violation of § 58-37-8(2)(a)(i); and
• The case must not include a conviction or plea held in abeyance for specified categories of offenses, including any felony or Class A misdemeanor (other than drug possession), or crimes involving violence, sexual assault, weapons, domestic violence, or DUI.
Once the clean slate law takes effect, prosecuting agencies will receive on a monthly basis notice of any case prosecuted by that agency that appears to be a clean slate eligible case. § 77-40-114(4). Within 35 days, the prosecuting agency must provide written notice (according to rules made by the Judicial Council) if the agency objects to automatic expungement because the case is not clean slate eligible, including because the individual has not paid court-ordered restitution, or because the agency has “a reasonable belief, grounded in supporting facts,” that the individual “is continuing to engage in criminal activity within or outside of the state.” If the prosecuting agency timely provides such a notice, “the court may not proceed with automatic expungement.” If no notice is sent, and a district or justice court determines that the requirements for automatic expungement have been met, the court must issue an expungement order, without any petition required. The court must—based on information available—notify the Bureau of Criminal Identification and prosecuting agency of the order of expungement; the bureau must notify all law enforcement agencies identified in the case of the order of expungement. In addition, a person may file a petition to expunge records that are eligible for automatic expungement, if automatic expungement has not occurred. § 77-40-114(5).
Traffic cases: Records for the following traffic cases “shall be deleted” without a court order or notice to the prosecuting agency: (1) a case that resulted in an acquittal on all charges; (2) a case dismissed with prejudice (other than as a result of successful completion of a plea in abeyance agreement); and (3) a case that qualifies as a “clean slate eligible case,” as defined above. § 77-40-115.
Implementation/incl. retroactivity: The automated aspect of the 2019 law applies both to cases adjudicated on or after May 1, 2020, and to cases adjudicated before that date, with two separate procedures established. §§ 77-40-116(1)(a) and (1)(b). “Reasonable efforts within available funding shall be made to expunge or delete a case as quickly as is practicable” with the following goals:
• For non-conviction cases adjudicated on or after May 1, 2020, the goal is to expunge a case that resulted in an acquittal on all charges 60 days after the acquittal, and to expunge a case that resulted in a dismissal with prejudice (other than a case dismissed with prejudice as a result of successful completion of a plea in abeyance agreement) 180 days after either the day on which the entire case against the individual is dismissed with prejudice if no appeal was filed, or the date of a final non-appealable order;
• For “clean slate eligible cases” adjudicated on or after May 1, 2020, the goal is to delete a traffic clean slate eligible case upon identification, and to expunge a non-traffic clean slate eligible case within 30 days of the court determining that the requirements for expungement have been satisfied; and
• For cases adjudicated prior to May 1, 2020, the goal is to expunge or delete a case within one year of the day on which the case is identified as eligible for automatic expungement or deletion.
§ 77-40-116(1). The Judicial Council is authorized to make rules governing the identification and processing of cases. § 77-40-114, -115, 116(2).
I. Judicial certificate – Termination of sex offender registration
Under Utah Code § 77-41-112, as amended in 2019, a court may terminate a person’s obligation to register as a sex offender five years after completion of sentence and a number of other conditions; and ten years after the person is placed on probation or parole, or released from prison without parole.
Patricia A. Nosanchuk
Office of Court Administration – Court Data Processing
IV. Criminal record in employment & licensing
A. 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.
The Division of Occupational and Professional Licensing (DOPL) is specifically authorized to conduct background investigations of applicants for licensure in the following professions, including records in possession of the FBI: 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), medical professionals (§ 58-67-302), osteopaths (§ 58-68-302), and “deception detection examiners” (§ 58-64-302). DOPL is specifically authorized to consider “pleas of nolo contendere, pleas of guilty or nolo contendere held in abeyance, dismissed charges, and charges without a known disposition.” See § 58-1-301.5. DOPL is not among the agencies authorized under § 77-40-109(2) to receive information contained in expunged records, and the statutes authorizing background checks for the above-listed professions do not specifically mention expunged records. And, the Utah courts have held that an expunged conviction may not be accessed for licensing purposes. See 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; and expungement statute’s failure to limit rights of licensing agencies to receive information did not give Department right to expunged information).
A license may be denied, or restricted, where an applicant or licensee has engaged in “unprofessional conduct.” Utah Code Ann. §§ 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). Effective May 14, 2019, “reasonable relationship” in the above quote is amended to read “substantial relationship.” See HB90 (2019). “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 2019, Utah enacted a law (effective May 14, 2019) that allows a person with a criminal record to apply at any time for a determination of whether their record would disqualify them from obtaining a license in any occupation or profession regulated by Title 58 of the Utah code (Title 58 extends, inter alia, to medical and health care professionals, architects and builders, cosmetologists, funeral service providers, hunting guides, pharmacists, athletic agents, geologists, music therapists, and persons authorized to distribute and conduct research with controlled substances). See HB90 (2019); § 58-1-310. A fee may be charged. Within 30 days of receipt of a completed application, the Division of Occupational and Professional Licensing must make a written determination, and a negative decision may include additional steps the individual could take to qualify. Id.
In 2020, the legislature relaxed the record-related disqualification standards for people working with direct access to certain vulnerable adults, if their only disability is mental illness. See HB436, Section 16, amending § 62A-2-120(5)(c) and (6) (certain felonies are not disqualifying after 10 conviction-free years, and misdemeanors after three years).
- 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 people with federal and out-of-state offenses 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 people with juvenile offenses. 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.
- In March 2018, SB 62 clarified that the Department of Public Safety is prohibited from counting pending or previous infractions, traffic offenses, or minor regulatory offenses when determining whether to grant a certificate of eligibility for expungement; that only fines and interest ordered by the court related to a conviction for which expungement is sought must be paid in full before expungement may be ordered; and, that fines or fees arising from pending or previous infractions, traffic offenses, or minor regulatory offenses are not counted when determining expungement eligibility. §§ 77-40-105(3)(a), (4).
- A person is not eligible if the person has any of the following combinations of Utah state convictions on their record: two felony convictions from separate episodes, excluding drug possession; three convictions from separate episodes of which two are class A misdemeanor convictions, excluding drug possession; four convictions from separate episodes of which three are class B misdemeanor convictions, excluding drug possession; five convictions from separate episodes, excluding drug possession; three felony drug possession convictions from separate episodes; or five drug possession convictions from separate episodes. § 77-40-102(5)(a)(ii)(A) (referencing §§ 77-40-105(5), (6)).