Posted: July 14, 2022
Rules of Criminal Procedure – Comment Period Closed August 28, 2022
URCrP042. Expungement. (NEW). Pursuant to U.C.J.A. Rule 11-105, the Utah Supreme Court has approved Rule 42 of the Utah Rules of Criminal Procedure for expedited adoption and another round of public comment. This version of the Rule includes technical and substantive corrections to match procedures for automatic expungement provided by Utah Code Ann. 77-40a-201. The Rule further contemplates protocol that the Administrative Office of the Courts will follow to create lists of expungement-eligible cases and identify and remove from those lists cases that do not meet eligibility criteria or are objected to by victims or prosecutors.
It’s potentially problematic that the procedure for automatic expungements under (b)(4)(B) requires the AOC to provide the expungement order to the BCI, but the regular petition procedure simply directs the Court to provide the petitioner certified copies upon request under (c)(8) (presumably leaving it up to the petitioner to get a copy to the BCI).
The relevant statute implies (but does not say explicitly) that the Court shall provide the BCI a copy of the expungement order in all cases. See Utah Code 77-40a-401(1)(a) (“the bureau, upon receiving notice from the Court, shall notify all criminal justice agencies…”). In our experience with the law so far, it seems that most Courts do interpret the law as requiring them to notify the BCI, and they do so by emailing a copy of the order, which seems to work fine. Further, my office has corresponded with the BCI, and this seems to be their understanding as well. But there are some Courts that maintain that it’s the petitioner’s responsibility to get the certified orders to the BCI.
It seems cleaner and easier if the Courts provide direct notice to the BCI in all cases, upon issuing the order.
Replying to myself because I misread section (c)(8), or rather didn’t see the second half of it. The redline additions to the rule do clearly direct the Court to notify the BCI of the order on regular petition-based expungements as well. This addresses the statutory ambiguity I was referencing.
A smaller concern: as a practical matter, courts differ significantly on how many orders are provided to the petitioner automatically (if any) and whether they are included with the filing fee, and how long the petitioner (or counsel) has to request extra copies before a motion to unseal is required. Having this in the rule would help standardize that part of it.
There is an issue with the courts not giving copies of the “order to expunge” to the petitioner being followed by not receiving the “final letter” of expungement from BCI. When the applicant contacts BCI to inform BCI they never received the final letter of expungement, BCI states they can no longer print the final letter and send it once it’s been expunged. They are told they have to get a court order to unseal the case to issue the final letter of expungement and reseal the case. This is going to be very problematic for the petitioner who was granted expungement of a case. This goes along with Mr. Smoland’s comment when it comes to informing agencies on that case. If the courts don’t, or it falls between the cracks with BCI, it will ultimately hurt the petitioner by having to pay fees when they shouldn’t have to.