Incumbent Expungement

Expungement.  If you are familiar with the word, you already know it is the legal process of cleaning up your criminal background, but what you might not know is how the process actually works.  Were you to call an attorney’s office right now, you’d probably be dazzled by the tedious explanations and exorbitant fees required for an expungement, so instead, we’ve decided to walk you through it, step by step.  By the end, you should know how to prepare for and successfully execute an expungement of your records and be able to enjoy a clean criminal background.

Step 1: The Application

                In Utah, the Bureau of Criminal Identification is the organization that controls the first step in the expungement process through a system of applications.  They essentially screen anyone wanting to expunge their records, determine whether the charges are eligible for expungement, and issue a certificate of eligibility indicating as much.  So naturally, the first thing to do when you want to clean up your records is to apply for a certificate from the bureau.

                Now, it’s important to remember that not all criminal charges can be expunged from your record.  Different categories of charges require a different amount of time you must wait after your probation ends, and certain charges simply cannot be expunged (typically the more serious ones).  Your average traffic ticket, for example, requires 3 years of waiting before you can have it expunged, whereas a DUI conviction requires 10.

                Fortunately, the Bureau of Criminal Identification is aware of all the different requirements for the innumerable criminal charges, and they will inform you in their response to your application of which charges are eligible for expungement, and which are not.  That said, keep in mind that each application currently requires a fee of $50.00, so you probably wont want to make applying for expungement a regular habit.

Step 2: The Petition

                Once you have received your certificate of eligibility from the Bureau of Criminal Identification and learned what charges can be expunged from your records, the next step is to file a petition for expungement with the courts.  Which court the motion needs to be filed with and how the petition needs to be written varies, and with a filing fee of several hundred dollars per petition (per case), this isn’t something you want to mess up.

In fact, this step is usually where most people would get in touch with a criminal defense attorney to make sure that everything goes smoothly.  An experienced attorney will know where and how to file the petition, and more importantly, they’ll know how to write the petition itself.  The courts have strict guidelines on what information is supposed to be included in the petition and how the petition is to be formatted, and they generally won’t accept an improperly formatted petition.  An experienced attorney will also be able to guide you through the rest of the expungement process which, as you’ll see shortly, can get complicated.

Step 3: Initial Service

                Another step where you’ll find it handy to have the help of an attorney is the initial service of the petition to expunge your records.  This essentially means delivering a copy of the petition to all relevant parties and then filing a document with the court proving that you did so.  The reason this is required is to give all parties and witnesses in the case you are trying to expunge a chance to reply to your petition, arguing either for or against it, and the courts will typically reject an improperly served petition out-of-hand.

                Once you have provided proof of service, the court will wait a few weeks to see if the any of the parties (or the victims), will file a statement, and if either of them do, the courts will wait a few more weeks to give you a chance to file a response.  At this stage, the involvement of a criminal defense attorney becomes key, not only because your response is going to have to be chalk-full of sound legal arguments if you want to sway the judge, but because you’re almost certainly going to end up making your case in court.

Step 4: The Hearing

                If any of the parties or victims in your case file statements to your petition, the court will typically schedule a hearing.  You’ll receive notice from the court of the date and time (if you have hired an attorney, they’ll arrange the date/time for you), and you’ll be expected to appear before the judge.  Failure will almost certainly result in a denial of your petition and you’ll end up having to start all over, so it’s important that you don’t miss your court date.

                At the hearing, you’ll need to argue before the judge in favor of your petition, and be prepared to address any arguments brought up by the prosecutor or the victim.  You’ll need to know the law behind your case, you’ll need to know how to handle yourself in court, and finally, you’ll need to know which arguments will work in your favor, and which will turn the judge’s opinion against you.  In short, you’ll need an attorney.

                Having an attorney represent you at the hearing is critical to the success of your petition.  Most experienced attorneys will have done dozens of expungements before – if not hundreds – and they’ll be prepared with both experience of the process and knowledge of the law to make your case before the judge.  They’ll be able prepared to respond to any surprise arguments the prosecutor or victim might bring up in court in a way that you probably never could.  Finally, they might be able to convince the prosecutor not to argue against your petition at all.  If this happens, the judge might not even set a hearing and will simply grant your petition outright.

Step 5: The Order

                Once you have had your hearing (or have convinced the prosecutor/victim to agree to your petition, or at least not argue against it), the judge will make their ruling and either grant or deny your petition.  If your petition is denied, your attorney will know what steps to take to appeal the matter, but if the judge grants your petition, then several certified copies of an expungement order will need to be obtained and delivered to all the agencies involved in the case you are having expunged.

                Serving the order can be a tedious process and typically involves delivering a copy of the order to all agencies that were involved in your case, including even the jail.  In some circumstances, the court will allow you to serve these agencies yourself, but in others they will require you to use a professional service agency, which may end up costing you money.  That said, once a copy of the order is served on an agency, they will be required to seal all records of the charge – both physical and digital – and essentially act as though you were never charged with the crime.  If done properly and served to all the agencies correctly, your record will then be completely cleared of the expunged charge.

Step 6: Follow Up

                While your attorney will help you identify which known agencies need to be served with the order of expungement, there are times when the more obscure agencies can be missed.  Technically these agencies will also need to seal their records of the expunged charges, but only if they are served with an order.  So, if your expunged charges show up somewhere down the road, you’ll need to get additional copies of the order and have them served on the missed agencies.

                So there you have it: a step-by-step walkthrough of the process of expungement.  If done properly, you’ll end up with a clean criminal record and, for all intents and purposes, it’ll be as though you were never arrested, charged, or even accused of a crime.  It’s an impressive process that is worth investing money into, and is the answer you’re looking for if your criminal background is stopping you from improving any aspect of your life.

Photo Courtesy of: Stuart

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