The Expungement Process for DUI Convictions

Interviewer: What are some examples of the typical DUI misdemeanor? What’s the average amount of time that would take to get expunged or that someone will have to wait?

Matthew Nebeker: The typical DUI is a first or second offense class B misdemeanor. I usually see this in a pattern when sometimes they’ve gone through a hard time in their life; they go through a divorce or child custody thing or financial problems. Sometimes they’ll get a DUI, but then a couple of months later they’ll get another one because they’re just going through so much turmoil or whatever.

What happens is once they receive the DUI conviction they will have to go through and follow all the court’s orders, pay the fine, go through their treatment and counseling, and do everything the court asks them to do. They can’t have any further violations of law, get caught driving on a suspended license, or get another DUI or something like that. A lot of times, the judges know that it’s going to take this person some time to get all those requirements done, so they’ll send them on a probation for 18 months and they’ll set periodic reviews. In those reviews, the court will just look to see if they’re making progress.

I always tell my clients, “The court is likely going to put you on probation for the 18 months. However, I would advise you to get everything done as quickly as you can. Pay the fine. Do the community service. Go through the classes. Then, as soon as you get all that stuff done, contact me. I will review the court’s docket to make sure that they have proof that you’ve done all that.”Sometimes the individual will go to treatment and get a certificate of completion for completing the treatment but that won’t get sent to the court so it’s not showing on there. I make sure the whole record is complete to show that they’ve done everything they’re supposed to.

A lot of times, at the 12-month mark, they’re done. Everything is on record. They don’t have any further violations of law. I will file a motion to terminate their probation early. In this case, it can save the person a lot of money, especially if they’re on supervised probation, because they have to pay for that. Plus, it gets that clock ticking on the 10 years, so I’m always trying to be proactive with the clients and say, “This is the best outcome we can get. Let’s get you through this. Let’s get this behind you.”

I file that motion and quite frequently most of the judges, if they’ve completed everything, will grant the motion. If we can get it closed early, that’s good. Then I put in my calendar. Nowadays we have these electronic calendars and we can forecast out for years and years. I put information in my calendar and I tell them about expungement and how to get hold of me. Like I said, I put reminders in there, and so we wait for that 10-year mark. Hopefully the individual calls me back, or I contact them to remind them, if I still have their current information, that we can now start this process and get this wiped off the record.

Once we hit there, and the first step in the process is they have to contact the Utah Bureau of Criminal Identification. They have to pay a small fee. I think it’s around $25.They have to send in a form or go down there and have the fingerprints taken to verify who they are, and request what’s called a certificate of eligibility. What that does is the Bureau of Criminal Identification will look into the case and make sure that it is closed, that probation was terminated successfully, and that the proper timeframes have run out. They’ll issue that certificate and they’ll usually send it to the attorney who requested it, or they’ll just send it directly to the individual.

Once I get that certificate of eligibility, then I know that the Utah Bureau of Criminal Identification is saying they’ll expunge it. Then I draft the paperwork. It’s a petition for expungement. I lay out everything in the petition, stating why they should be granted the expungement and why it’s not contrary to the interest of the public, and then I file it. There is a filing fee. I think it’s about $135.That has to be filed and paid with the petition. Then we have to serve a copy of the petition to the prosecutor.

At that point, we kind of just wait. We schedule a hearing date and we wait and see the prosecutor. He can file an objection, if he wants, to the petition. Most of the time they’ll state the reasons. If that objection is filed, then I will go ahead and request the hearing with the judge where I will go in and appear before the judge with the prosecutor and my client. We will argue the merits of the petition, why the prosecution objected and so forth, and wait for the judge’s ruling on the issue.

I can’t think of one petition expungement that hadn’t been granted. There was one case I could tell you a little bit later that got delayed in the expungement process, but most of them are granted. Once the court signs the order, then I take a certified copy of that order and I send it to the local sheriff’s department or law enforcement agency that did the arrest. I send it back to the Utah Bureau of Criminal Identification. Then I send it to the FBI headquarters. There’s just a list of people you have to send a certified copy of that order to. Then that basically takes care of it.

A month or two later, I usually have the client go back to the Bureau of Criminal Identification to run another background check to make sure that’s been taken care of because, like with any other kind of agency or business, sometimes the paperwork doesn’t get where it needs to go and the steps don’t happen. That’s why I always send them back there to verify that their record is now sealed or no longer shows this conviction. That’s basically how the process goes.

Prosecutorial Objections

Interviewer: Why would a prosecutor object to it?

Matthew Nebeker: I had one here recently on a drug conviction case where I filed the petition for expungement, and this is what’s really weird about this. My client went through the County’s Drug Diversion Program.

This individual had a felony level drug possession charge. He was in their diversion program that was put on by the County Attorney’s Office, monitored and supervised by the court, and he successfully completed it. They graduated him and the time had come to file the expungement. I told my client I was going to do that for him and I filed it. I stated in there that he successfully completed all terms and requirements of the County Attorney’s Drug Diversion Program.

A couple of days later, I got the objection. It’s from the same prosecutor’s office that put on the program. Basically, he wanted to object just to come in and have a hearing before the judge and to hear a little bit more in detail as to why this expungement is not contrary to the interest of the public. He just wanted a little bit more clarity, and wanted to have a hearing before the judge and let you know that’s what the issue became. I had to explain to the judge why this was good for our community.

The reason why it was good is because he had overcome his problems with his addiction. He had even graduated from college during this time. He was looking to better his financial position by seeking out a better job with his degree. He was building more solid ties and solid life here in our community. He’s trying to do everything that we want someone to do: take care of their family, support their children, provide to the community. After I laid it out and explained it to the judge, then ultimately the prosecutor was okay with that. He agreed that it would be good to grant the expungement.

Some of the prosecutors don’t really seem to be too bothered by it and don’t object very often. Ten years is a long time to go on a DUI charge. Maybe the individual has gotten another charge or did something in another state that the prosecutor is able to find. They might object for that. Most of the time, there are no objections. That was kind of interesting as one example of why the prosecutor objected.

Another time it happened to me, it was another drug related conviction and charge. I had filed the motion to have it reduced. The lady successfully completed everything she was supposed to do. I had filed the motion to terminate her probation early. We got her probation terminated early. We got the felony reduced down to the Class A misdemeanor. We did this all within 12 or 13 months. Then this lady qualified for the expungement and we filed the petition for expungement and served it on the prosecutor.

In this particular case, the prosecutor did object. The basis of his objection was that my client had received the benefit of the early termination of probation and she’d received the benefit of the reduction from the felony to the Class A misdemeanor in a short timeframe. He wanted her to have more time even though she wasn’t on probation and was without any further convictions. His argument was to set this out a year or something to see if she got in any more trouble. On that one, the judge split the difference and made us wait six months instead of the year. Those are some of the reasons that I have seen.

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