Public Safety, Criminal Investigations and Technical Services, Criminal Identification

Rule R722-350

Certificate of Eligibility

Notice of Proposed Rule

(New Rule)

DAR File No.: 34324
Filed: 12/21/2010 09:54:53 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this proposed rule is to establish procedures for applying for a certificate of eligibility to expunge certain criminal records and to carry out the statutory change found at H.B. 21 in the 2010 General Session of the Utah Legislature. (DAR NOTE: H.B. 21 (2010) is found at Chapter 283, Laws of Utah 2010, and was effective 05/11/2010.)

Summary of the rule or change:

The new rule establishes procedures for applying for a certificate of eligibility to expunge certain criminal records.

State statutory or constitutional authorization for this rule:

• Title 77, Chapter 40

Anticipated cost or savings to:

the state budget:

There are no aggregate anticipated costs or savings to the state budget. This proposed rule addresses the actual process of applying for a certificate of eligibility to expunge certain types of criminal records and the adjudicative proceedings, thus no aggregate cost or savings to the state budget is anticipated.

local governments:

There are no aggregate anticipated costs or savings to local government. This proposed rule addresses the actual process of applying for a certificate of eligibility to expunge certain types of criminal records and the adjudicative proceedings, thus no aggregate cost or savings to local government is anticipated.

small businesses:

There are no aggregate anticipated costs or savings to small businesses. This proposed rule addresses the actual process of applying for a certificate of eligibility to expunge certain types of criminal records and the adjudicative proceedings, thus no aggregate cost or savings to small businesses is anticipated.

persons other than small businesses, businesses, or local governmental entities:

There are no aggregate anticipated cost or savings to persons other than small businesses, businesses, or local government entities. This proposed rule addresses the actual process of applying for a certificate of eligibility to expunge certain types of criminal records and the adjudicative proceedings, thus no aggregate cost or savings to persons other than small businesses, businesses, or local government entities is anticipated.

Compliance costs for affected persons:

There are no compliance costs. As this rule addresses the application for a certificate of eligibility to expunge certain criminal records, and certain adjudicative proceedings relating to the expungement process, there are no anticipated compliance costs.

Comments by the department head on the fiscal impact the rule may have on businesses:

This should not have any particular effect on business since it is only implementing procedures for the application and issuance of a certificate of eligibility according to statutory requirements.

D. Lance Davenport, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Public Safety
Criminal Investigations and Technical Services, Criminal Identification
3888 W 5400 S
TAYLORSVILLE, UT 84118

Direct questions regarding this rule to:

• Alice Moffat at the above address, by phone at 801-965-4939, by FAX at 801-965-4944, or by Internet E-mail at aerickso@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

02/14/2011

This rule may become effective on:

02/21/2011

Authorized by:

Alice Moffat, Bureau Chief

R722. Public Safety, Criminal Investigations and Technical Services, Criminal Identification.

R722-350. Certificate of Eligibility.

R722-350-1. Purpose.

The purpose of these rules is to establish procedures by which a petitioner may seek a certificate of eligibility pursuant to Title 77 Chapter 40.

 

R722-350-2. Authority.

Section 77-40-111 authorizes the department to promulgate rules to implement procedures for the application and issuance of certificates of eligibility.

 

R722-350-2. Definitions.

Terms used in this rule are defined in Section 77-40-102.

 

R722-350-3. Application for a Certificate of Eligibility.

(1)(a) An application for a certificate of eligibility must be made in writing to the bureau by filing out the application form established by the bureau.

(b) An application form must be accompanied by a payment of $25.00 in the form of cash, check, money order, or credit card.

(2) Upon receipt of a completed application form and payment of the application fee, the bureau shall determine whether the petitioner meets the requirements for a certificate of eligibility found in Sections 77-40-104 and 77-40-105 by reviewing federal, state and local government records.

(3) If the bureau has insufficient information to determine if the petitioner meets the requirements for a certificate of eligibility, the bureau may request that the petitioner submit additional information.

(4) If the bureau is unable to obtain disposition information regarding the petitioner's criminal history or cannot determine whether the petitioner meets the requirements for a certificate of eligibility found in Sections 77-40-104 and 77-40-105, the bureau shall send a letter to the petitioner, at the address indicated on the application form, indicating that the petitioner may obtain a special certificate for each criminal episode upon the payment of $56.00, per special certificate.

(5) If the bureau determines that the petitioner meets the requirements for the issuance of a certificate of eligibility found in Section 77-40-104, the bureau shall send the certificate of eligibility to the petitioner, at the address indicated on the application form, unless the charges were dismissed pursuant to a plea in abeyance agreement under Title 77, Chapter 2a, Pleas in Abeyance, or a diversion agreement under Title 77, Chapter 2, Prosecution, Screening, and Diversion.

(6) If the bureau determines that the petitioner meets the requirements for the issuance of a certificate of eligibility under any other circumstances, the bureau shall send a letter to the petitioner, at the address indicated on the application form, indicating that the petitioner must pay $56.00 for each certificate of eligibility.

(7) If the bureau determines that the petitioner does not meet the criteria for the issuance of a certificate of eligibility, the bureau shall send a letter to the petitioner, at the address indicated on the application form, which describes the reasons why the petitioner's application was denied and notifies the petitioner that the petitioner may seek agency review of the bureau's decision by following the procedures outlined in R722-350-4.

 

R722-350-4. Agency Review of a Decision to Deny an Application for a Certificate of Eligibility.

(1) A petitioner may seek review of the denial of an application for a certificate of eligibility, as provided by Section 63G-4-301, by mailing a written request for review to the bureau within 30 days from the date the denial letter is issued.

(2) The request for review must:

(a) be signed by the petitioner;

(b) state the specific grounds upon which relief is requested;

(c) state the date upon which it was mailed; and

(d) include documentation which supports the petitioner's request for review.

(3) An employee of the bureau shall be designated to review the petitioner's written request, any accompanying documents supplied by the petitioner, and the materials contained in the application file to determine whether the petitioner meets the requirements for the issuance of a certificate found in Section 77-40-104 and 77-40-105.

(4)(a) Within a reasonable time after receiving the request for review, the bureau shall issue a final written order on review, which shall be mailed to the petitioner at the address indicated on the application.

(b) If upon further review the bureau is unable to determine whether the petitioner meets the requirements for a certificate of eligibility found in Sections 77-40-104 and 77-40-105, the bureau shall send a letter to the petitioner, at the address indicated on the application form, indicating that the petitioner may obtain a special certificate for each criminal episode upon the payment of $56.00, per special certificate.

(c) If further review indicates that the petitioner meets the requirements for the issuance of a certificate of eligibility found in Section 77-40-104, the bureau shall send a certificate of eligibility to the petitioner, unless the charges were dismissed pursuant to a plea in abeyance agreement under Title 77, Chapter 2a, Pleas in Abeyance, or a diversion agreement under Title 77, Chapter 2, Prosecution, Screening, and Diversion.

(d) If further review indicates that the petitioner meets the requirements for the issuance of a certificate of eligibility under any other circumstances, the order shall indicate that the petitioner must pay $56.00 for each certificate of eligibility.

(e) If further review indicates that the petitioner does not meet the requirements for the issuance of a certificate, the order shall describe the reasons why the bureau's decision was upheld and notify the petitioner that the petitioner's opportunity to review the bureau's decision is limited to review by the district court as described in R722-350-5.

 

R722-350-5. Judicial Review.

A petitioner may seek judicial review of the bureau's final written order on review denying an application for a certificate of eligibility, as provided by Section 63G-4-402, by filing a complaint in the district court within 30 days from the date that the bureau's final written order is issued.

 

KEY: expungement, certificate of eligibility

Date of Enactment or Last Substantive Amendment: February 21, 2011

Authorizing, and Implemented or Interpreted Law: 77-40