Why Would Someone Ever Be Denied An Expungement?
An expungement can be denied for statutory reasons, such as not meeting the required timeframe for a class B misdemeanor DUI, which is 10 years, or for a class B misdemeanor theft offense, which would be three years. Or it could be the type of conviction that can’t be expunged, such as a sex crime, certain kinds of assaults and, of course, felony DUI. Some domestic violence offenses cannot be expunged, even if they’re misdemeanors. Criminal mischief, which involves damaging someone else’s property, can prevent an individual from possessing firearms or ammunition for the rest of their life, along with not getting the offense expunged.
Another reason to be denied an expungement would be the judge, who may not want to grant the petition. You can clear all the hurdles and meet all the statutory requirements, but you may have an egregious case, and the same prosecutor that handled your case originally may be dealing with the expungement. So we schedule a hearing, and the prosecutor says it’s not in the interest of justice to grant the expungement, which means there’s a legal burden they have to meet beyond a reasonable doubt.
The judge could deny an expungement and agree with the prosecutor that you are violent and dangerous, and it would not be in the interest of justice to erase or destroy this record; those are usually the reasons. I’ve had a couple of cases where prosecutors have filed objections just to make the person come into court and explain it to the judge. So it’s not that they didn’t want the expungement granted; they just wanted to hear from the individual themselves and have them explain it to the judge in their own words because a lot of times, that doesn’t get set out in the petition by someone who’s applying for it on their own instead of working with an attorney.
If someone is trying to do an expungement by themselves and gets an objection from the prosecutor, it doesn’t mean it’s over. It means that the court wants to hear from the individual and let the judge decide. So it’s kind of a little game that they play. It burns up court time and is a waste of resources, but it is what it is, and you have to deal with it. That’s why I recommend getting an attorney because there are certain steps that if not taken in a timely manner, will cause the case to be dismissed and money wasted.
For example, those certificates of eligibility that come from the Bureau of Criminal Identification are only good for 60 days. So if the individual doesn’t get their petition filed within the 60 days and doesn’t go in front of the judge within that time, then the judge doesn’t have a legal reason to grant it because the eligibility certificate has expired. I always recommend getting an attorney for doing an expungement. It’s not a really complicated process, but just every step of the way, there are hurdles, timeframes and issues that could delay it or cause it not to be granted, which could be a problem.
Additional Information Regarding Expungement In Utah
Sometimes when I’ve been sitting in court waiting for my case to be called, I’ve seen people without an attorney go up and get their petition denied for one reason or another. They’ve qualified statutorily, the Bureau of Criminal Identification has said, “Yes, we approve,” but the judge hasn’t, perhaps because the prosecutor’s gotten involved. In that situation, I would tell the individual not to give up. I would tell him or her to wait a year and maybe change some circumstances in their life. If the judge denied the petition for a certain reason, perhaps they can do something to change that, such as taking an anger management class to show the judge that they’re working on their issues, then re-apply.
I don’t believe there’s any reason that you could not re-apply. Don’t give up but do consult with an attorney because it’s definitely worth trying again, especially to reduce a felony DUI down to a misdemeanor. A reduction can also be done with a misdemeanor, such as a disorderly conduct or public intoxication reduced down to an infraction, which means there is no longer a misdemeanor on their record.
Some job applications ask, “Have you ever been convicted of a misdemeanor or a felony?” If we’ve gotten that misdemeanor reduced down to an infraction, then the applicant can say “No” on the application. I would just say it’s always best to consult with an attorney and discuss all the options. Sometimes in a case, we can negotiate a two-step reduction upfront. So if we’re going to plea someone in to a third-degree felony DUI and we can get the prosecutor to agree upfront, we could get it, at the end of probation, reduced down to a B misdemeanor.
A felony that goes from an A misdemeanor down to a B misdemeanor lowers the timeframes, so that’s why people need to talk with a lawyer at every stage in their case and discuss those kinds of options, even when they’re doing a plea negotiation. They need to know how long they need to wait to get it off their record and what are some of the options to shorten it.
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