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H.B. 35
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EXPUNGEMENT OF JUVENILE RECORDS
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2002 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Scott Daniels
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This act modifies the Juvenile Court Act by clarifying the steps necessary to expunge a
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record in the Juvenile Court. It requires that the petitioner be over 18 years of age, have
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completed all court requirements, and not have an adult criminal record. The statute is
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further modified by requiring notification of victims and allowing for expungement of
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nonjudicial closures.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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53-10-108, as last amended by Chapter 227, Laws of Utah 1999
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78-3a-905, as last amended by Chapter 1, Laws of Utah 2000
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
53-10-108
is amended to read:
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53-10-108. Restrictions on access, use, and contents of division records -- Limited use
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of records for employment purposes -- Challenging accuracy of records -- Usage fees --
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Missing children records.
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(1) Dissemination of information from a criminal history record or warrant of arrest
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information from division files is limited to:
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(a) criminal justice agencies for purposes of administration of criminal justice and for
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employment screening by criminal justice agencies;
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(b) noncriminal justice agencies or individuals for any purpose authorized by statute,
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executive order, court rule, court order, or local ordinance;
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(c) agencies or individuals for the purpose of obtaining required clearances connected with
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foreign travel or obtaining citizenship;
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(d) (i) agencies or individuals pursuant to a specific agreement with a criminal justice
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agency to provide services required for the administration of criminal justice;
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(ii) the agreement shall specifically authorize access to data, limit the use of the data to
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purposes for which given, and ensure the security and confidentiality of the data;
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(e) agencies or individuals for the purpose of a preplacement adoptive study, in accordance
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with the requirements of Section
78-30-3.5
;
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(f) (i) agencies and individuals as the commissioner authorizes for the express purpose of
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research, evaluative, or statistical activities pursuant to an agreement with a criminal justice
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agency; and
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(ii) private security agencies through guidelines established by the commissioner for
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employment background checks for their own employees and prospective employees;
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(g) a qualifying entity for employment background checks for their own employees and
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persons who have applied for employment with the qualifying entity; and
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(h) other agencies and individuals as the commissioner authorizes and finds necessary for
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protection of life and property and for offender identification, apprehension, and prosecution
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pursuant to an agreement.
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(2) An agreement under Subsection (1)(f) or (1)(h) shall specifically authorize access to
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data, limit the use of data to research, evaluative, or statistical purposes, preserve the anonymity
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of individuals to whom the information relates, and ensure the confidentiality and security of the
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data.
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(3) (a) Before requesting information under Subsection (1)(g), a qualifying entity must
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obtain a signed waiver from the person whose information is requested.
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(b) The waiver must notify the signee:
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(i) that a criminal history background check will be conducted;
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(ii) who will see the information; and
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(iii) how the information will be used.
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(c) Information received by a qualifying entity under Subsection (1)(g) may only be:
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(i) available to persons involved in the hiring or background investigation of the employee;
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and
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(ii) used for the purpose of assisting in making an employment or promotion decision.
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(d) A person who disseminates or uses information obtained from the division under
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Subsection (1)(g) for purposes other than those specified under Subsection (3)(c), in addition to
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any penalties provided under this section, is subject to civil liability.
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(e) A qualifying entity that obtains information under Subsection (1)(g) shall provide the
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employee or employment applicant an opportunity to:
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(i) review the information received as provided under Subsection (8); and
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(ii) respond to any information received.
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(f) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
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division may make rules to implement this Subsection (3).
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(g) (i) The applicant fingerprint card fee under Subsection (1)(g) is $15.
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(ii) The name check fee under Subsection (1)(g) is $10.
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(iii) These fees remain in effect until changed by the division through the process under
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Section
63-38-3.2
.
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(iv) Funds generated under Subsections (3)(g)(i), (3)(g)(ii), and (8)(b) shall be deposited
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in the General Fund as a dedicated credit by the department to cover the costs incurred in providing
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the information.
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(h) The division or its employees are not liable for defamation, invasion of privacy,
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negligence, or any other claim in connection with the contents of information disseminated under
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Subsection (1)(g).
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(4) Any criminal history record information obtained from division files may be used only
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for the purposes for which it was provided and may not be further disseminated.
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(5) If an individual has no prior criminal convictions, criminal history record information
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contained in the division's computerized criminal history files may not include arrest or disposition
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data concerning an individual who has been acquitted, his charges dismissed, or when no
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complaint against him has been filed.
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(6) (a) This section does not preclude the use of the division's central computing facilities
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for the storage and retrieval of criminal history record information.
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(b) This information shall be stored so it cannot be modified, destroyed, or accessed by
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unauthorized agencies or individuals.
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(7) Direct access through remote computer terminals to criminal history record information
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in the division's files is limited to those agencies authorized by the commissioner under
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procedures designed to prevent unauthorized access to this information.
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(8) (a) The commissioner shall establish procedures to allow an individual right of access
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to review and receive a copy of his criminal history [record information] report.
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(b) A processing fee for the right of access service, including obtaining a copy of the
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individual's criminal history report under Subsection (8)(a) is $10. This fee remains in effect until
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changed by the commissioner through the process under Section
63-38-3.2
.
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(c) (i) The commissioner shall establish procedures for an individual to challenge the
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completeness and accuracy of criminal history record information contained in the division's
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computerized criminal history files regarding that individual.
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(ii) These procedures shall include provisions for amending any information found to be
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inaccurate or incomplete.
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(9) The private security agencies as provided in Subsection (1)(f)(ii):
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(a) shall be charged for access; and
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(b) shall be registered with the division according to rules made by the division under Title
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63, Chapter 46a, Utah Administrative Rulemaking Act.
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(10) Before providing information requested under this section, the division shall give
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priority to criminal justice agencies needs.
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(11) (a) Misuse of access to criminal history record information is a class B misdemeanor.
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(b) The commissioner shall be informed of the misuse.
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Section 2.
Section
78-3a-905
is amended to read:
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78-3a-905. Expungement of juvenile court record -- Petition -- Procedure.
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(1) (a) [Any] A person who has been adjudicated under this chapter may[, after the
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expiration of one year] petition the court for the expungement of his record in the juvenile court
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if:
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(i) he has reached 18 years of age; and
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(ii) one year has elapsed from the date of termination of the continuing jurisdiction of the
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juvenile court or, in case he was committed to a secure youth corrections facility, one year from
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the date of his unconditional release from the [facility, petition the court for the expungement of
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his record in the juvenile court] custody of the Division of Youth Corrections.
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(b) The petitioner shall include with his petition the original criminal history report
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obtained from the Bureau of Criminal Identification in accordance with the provisions of
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Subsection
53-10-108
(8).
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(c) The petitioner shall send a copy of the petition to the county attorney or, if within a
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prosecution district, the district attorney.
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[(b)] (d) (i) Upon the filing of a petition, the court shall set a date for a hearing and shall
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notify the county attorney or[, if within a prosecution district,] district attorney, and the agency
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with custody of the records of the pendency of the petition and of the date of the hearing. Notice
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shall be given at least 30 days prior to the hearing.
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(ii) The court shall provide a victim with the opportunity to request notice of a petition for
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expungement. A victim shall receive notice of a petition for expungement at least 30 days prior
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to the hearing if, prior to the entry of an expungement order, the victim or, in the case of a minor
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or a person who is incapacitated or deceased, the victim's next of kin or authorized representative,
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submits a written and signed request for notice to the court in the judicial district in which the
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crime occurred or judgment was entered. The notice shall include a copy of the petition and
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statutes and rules applicable to the petition.
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[(ii) The] (2) (a) At the hearing, the county attorney or district attorney, a victim, and any
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other person who may have relevant information about the petitioner may testify [at the hearing].
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[(2) (a) If the court finds upon the hearing that the petitioner has not been convicted of a
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felony or of a misdemeanor involving moral turpitude since the termination of the court's
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jurisdiction or his unconditional release from a secure youth corrections facility and that no
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proceeding involving a felony or misdemeanor is pending or being instituted against him, and if
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the court further finds that]
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(b) In deciding whether to grant a petition for expungement, the court shall consider
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whether the rehabilitation of the petitioner has been attained to the satisfaction of the court, [it shall
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order sealed all records in the petitioner's case in the custody] taking into consideration the
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petitioner's response to programs and treatment, his behavior subsequent to adjudication, and the
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nature and seriousness of the conduct.
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(c) The court may order sealed all petitioner's records under the control of the juvenile
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court and any of petitioner's records [in] under the [custody] control of any other agency or official
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pertaining to the petitioner's adjudicated juvenile court cases[, except fingerprint records.
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Fingerprint records shall be retained in the custody of the juvenile court and any other agency or
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official. Copies of the order shall be sent to each agency or official named in the order and any
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entity notified of the original adjudication under Subsection
78-3a-118
(1)(b).] if the court finds
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that:
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(i) the petitioner has not, since the termination of the court's jurisdiction or his
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unconditional release from the Division of Youth Corrections, been convicted of a:
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(A) felony; or
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(B) misdemeanor involving moral turpitude; and
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(ii) no proceeding involving a felony or misdemeanor is pending or being instituted against
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him.
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(3) The petitioner shall be responsible for service of the order of expungement to all
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affected state, county, and local entities, agencies, and officials. To avoid destruction or sealing
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of the records in whole or in part, the agency or entity receiving the expungement order shall only
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expunge all references to the petitioner's name in the records pertaining to the petitioner's
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adjudicated juvenile court cases. [The petitioner, based on good cause, may petition the court to
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expunge the records in whole or in part.]
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[(b)] (4) Upon the entry of the order, the proceedings in the petitioner's case shall be
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considered never to have occurred and the petitioner may properly reply accordingly upon any
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inquiry in the matter. Inspection of the records may thereafter only be permitted by the court upon
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petition by the person who is the subject of the records, and only to persons named in the petition.
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(5) The court may not expunge a juvenile court record if the record contains an
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adjudication of:
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(a) Section
76-5-202
, aggravated murder; or
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(b) Section
76-5-203
, murder.
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(6) (a) A person whose juvenile court record consists solely of nonjudicial adjustments as
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provided in Section
78-3a-502
may petition the court for expungement of his record if the person:
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(i) has reached 18 years of age; and
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(ii) has completed the conditions of the nonjudicial adjustments.
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(b) The court shall, without a hearing, order sealed all petitioner's records under the control
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of the juvenile court and any of petitioner's records under the control of any other agency or official
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pertaining to the petitioner's nonjudicial adjustments.
Legislative Review Note
as of 11-15-01 1:25 PM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.
Office of Legislative Research and General Counsel
Committee Note
The Judiciary Interim Committee recommended this bill.
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