Thursday, April 21, 2011

New Expungement Laws Makes Expungment More Difficult.

Utah's new expungement laws make it more difficult to clean up minor, youthful indiscretions.  To be eligible for expungement, the case now has to be explicately has to be dismissed with prejudiced, meaning it cannot ever be filed again.  Historically this has never been the case that a case was dismissed with prejudice.  So it used to be that if a case was dismissed without prejudice, the citizen could file for expungement after 30 days.  Now, the person must wait as if convicted of the charge unless the citizen gets the dismissal with prejudice from the judge in an order.  Here is the new eligibility statute:

Utah Code
Title 77 Utah Code of Criminal Procedure
Chapter 40 Utah Expungement Act
Section 104 Eligibility for expungement of records of arrest, investigation, and detention -- Requirements.
77-40-104. Eligibility for expungement of records of arrest, investigation, and detention -- Requirements.
(1) A person who has been arrested with or without a warrant may apply to the bureau for a certificate of eligibility to expunge all records of arrest, investigation, and detention which may have been made in the case, subject to the following conditions:
(a) at least 30 days have passed since the arrest for which a certificate of eligibility is sought;
(b) there have been no intervening arrests; and
(c) one of the following occurred:
(i) charges were screened by the investigating law enforcement agency and the prosecutor has made a final determination that no charges will be filed;
(ii) the action against the person was dismissed with prejudice;
(iii) the person was acquitted at trial; or
(iv) the statute of limitations has expired on the offense.
(2) Notwithstanding Subsection (1)(a), a petitioner seeking expungement under Subsection (1)(c)(iii) shall be issued a certificate of eligibility on an expedited basis.

If you are convicted of the crime, or the case was dismissed without prejudice, you must wait the time periods listed below before you can expunge:  (77-40-105)
i) 10 years in the case of a misdemeanor conviction of Subsection 41-6a-501(2) (DUI) or a felony violation of Subsection 58-37-8(2)(g);
(ii) seven years in the case of a felony;
(iii) five years in the case of a class A misdemeanor;
(iv) four years in the case of a class B misdemeanor; or
(v) three years in the case of any other misdemeanor or infraction.

Friday, April 15, 2011

Utah Supreme Court rules in Favor of Preliminary Hearings on Class A Misdemeanors The Utah Supreme Court ruled Tuesday that defendants charged with class A misdemeanors — not just those accused of felonies — have a right to a preliminary hearing under the state’s constitution.

The Utah Supreme Court recently ruled that defendants charged with class A misdemeanors — not just those accused of felonies — have a right to a preliminary hearing in the State of Utah.
The Salt Lake Tribune reported:
"The decision, made in the case of a 50-year-old Salt Lake City man charged with providing alcohol to a teenager who later died after falling down a stairwell, has raised concerns about the burden of its implementation.
Salt Lake County District Attorney Sim Gill said he anticipates as many as 3,000 additional hearings to be placed on court calendars in 3rd District Court alone. The move could tax an overburdened system, he said, although it’s unclear exactly how much additional work for attorneys — and how big of a price tag for the courts — the ruling brings."
This is good news for the accused in Utah.  Historically, in the state of Utah, only defendants charged with felonies were afforded a preliminary hearing before a judge.  The purpose of this hearing is to make the prosecution prove to the court that there is enough evidence to proceed to trial on the charges.  The preliminary hearing also allowed the Defense to "test" the State's witnesses and determine the strengths and weaknesses of the prosecutor's case.  
But, if a defendant was charged with a misdemeanor crime, the prosecutor was not required to show any evidence or allow the Defense to test the witnesses until the day of trial.  For most accused this comes much too late to really ascertain the strengths or weaknesses of a case.  By the time a case gets to trial the chance to plea bargain a case has passed and accused faces conviction to all the charges alleged by the prosecutor.  
Not anymore, The Defendant now has an opportunity to test the prosecutors witnesses early in a case a determine if a case needs to be plead out or proceed to trial. 
The prosecution is not happy about this as evidenced by comments made to the Salt Lake Tribune by the Salt Lake County District Attorney:  “It’s going to have a fairly dramatic impact on the court system,” Gill said. “Technically speaking, it’s going to be adding one more step in the process, and, of course, it is going to mean other things are not going to be moving through the system as fast. Justice delayed is justice denied.”
Class A misdemeanor defendants were previously arraigned and entered a plea — in some instances, receiving a sentence at that time. If a defendant entered a not-guilty plea, the case was set for trial. Now defendants can ask a judge to hold a preliminary hearing to decide if the case against them is strong enough to be scheduled for trial."
"Kent Hart, executive director of the Utah Association of Criminal Defense Lawyers, called the justices’ ruling a victory for defendants’ rights. Hart said class A misdemeanors are serious to many defendants: the offenses are punishable by up to a year in jail, and convictions can serve as sentencing enhancements for other crimes. For example, if a person is convicted of a class A misdemeanor driving under the influence, a second DUI could be elevated to a felony offense.
“A preliminary hearing does not require a lot of effort from a prosecutor,” Hart said. “The formality of having to present a case to a judge requires a prosecutor to make sure their case is solid.”
But Hart acknowledged the high court’s ruling will have a fiscal impact."

I have personally set several class A misdemeanor cases for preliminary hearing in the past couple of weeks since this decision came down from the Utah Supreme Court.  No longer can the prosecution "hide-the-ball" with their witnesses.  This is a big win for the little guys in the criminal justice system