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WHAT IS UTAH SENATE BILL 85?
Senate Bill 85 is a bill that became effective in Utah on July 1, 2022,1See Utah State Legislature, S.B. 85 Protective Order and Stalking Injunction Expungement, https://le.utah.gov/~2022/bills/static/SB0085.html#78b-7-1001 (accessed Jan. 17, 2022) and it addresses the expungement of protective orders and stalking injunctions.
The American Bar Association defines expunge as to “erase or remove completely.” In law, “expunge” means to seal or otherwise restrict access to an individual’s record held by an agency when the record includes a civil order.2See Utah Code § 78B-7-1001(3) Expungement means that the records are sealed, and the case is treated as if it never occurred.
A protective order is an order from a court, and it provides orders as to how two parties are to act or refrain from acting concerning one another; it is typically used to protect the petitioner (the person making the protective order request) from the respondent (the person who the petitioner seeks to be protected from), and it lays out certain rules that the respondent must follow concerning the petitioner (such as staying a certain distance away from the petitioner).
Getting a Protective Order
A person needing protection from someone can request the court to get a protective order against the person they need protection from. Per Utah Code § 78-B-102, a civil protective order is issued by a court after a hearing on the request for a protective order of which the petitioner and the respondent have been given notice.
Types of Protective Orders Available
The types of civil protective orders available in Utah include (i) child protective orders, (ii) dating violence protective orders, (iii) sexual violence protective orders, and (iv) cohabitant abuse protective orders.3See Utah Code § 78B-7-102(3)(a)(b)(c)(d) The court can order a respondent not to contact, visit, or otherwise harass the petitioner. The court can also make the respondent give up any firearms, ammunition, or weapons and even limit their ability to obtain them.
Hearing on Protective Order
A hearing is usually held first to determine if a protective order is necessary.
After the hearing, the court may order that, for example, (i) the parties have no communication with one another; that (ii) the offender (the respondent) not contact the victim (the petitioner) in any manner; that (iii) there are temporary custody orders regarding the minor children (if any); that (iv) there are temporary orders as to the ownership of the residence the couple resides in (if they are living together); and even that (v) there are orders of child support (if there are minor children) in the protective order.
Protective Orders and Weapons Possession
Judges can also order that the offender turn over all weapons in their possession. This can create issues for seasonal hunters and people who use weapons for their own protection—or anybody wanting to preserve their Second Amendment rights! Guns and ammunition are expensive, and most people would not be thrilled to have to turn them over to law enforcement.
A stalking injunction is very similar to a protective order. If someone is being stalked by a person, they may file with a court to have the stalker ordered to leave them alone. In Utah, if an individual believes they are the victim of stalking, they may file a petition for a civil stalking injunction against the alleged stalker.
Specifically, the court can order, for example, that (i) the stalker stop committing stalking against the other party; (ii) the stalker be restrained from coming near the residence, place of employment, or school of the other party, or other specifically designated locations or persons; that (iii) the stalker be restrained from contacting, directly or indirectly, the other party, including personal, written, or telephonic contact with the other party, the other party’s employers, employees, fellow workers, or others whom would be likely to cause annoyance or alarm to the other party; or that (iv) the court order any other relief necessary.
A stalking injunction can also potentially instruct the stalker to refrain from any alcohol or drug use. If the judge deems it necessary, the court can order the stalker to give up any firearms, ammunition, or weapons and even limit the stalker’s ability to obtain them.4See Utah Code § 78B-7-701(3)
Definition of Stalking
A person is guilty of stalking when they intentionally or knowingly engage in a course of conduct directed at a specific person and knows or should know that the course of conduct would cause a reasonable person to (i) fear for their own safety or the safety of a third person, or to (ii) suffer other emotional distress.
It is not a defense that the alleged stalker did not intend to cause the victim fear or other emotional distress; if the victim feels fear or emotional distress as a result of the actions that the alleged stalker took, then the alleged stalker could potentially be charged with stalking.
Expunging an Injunction
A protective order or stalking injunction against a respondent or alleged stalker, respectively, can cause significant and unfair inconveniences for the respondent or alleged stalker. Therefore, the law allows expunging a protective order or stalking injunction, as exemplified by Utah Senate Bill 85.
EXPUNGING A PROTECTIVE ORDER OR STALKING INJUNCTION
The record of a lawsuit (including a civil action such as a protective order or stalking injunction) is usually a permanent public record. However, a court may expunge a civil protective order or civil stalking injunction—thereby removing the record from the public’s access—if the following factors exist:
- The civil protective order or civil stalking injunction has been dismissed, dissolved, vacated, or expired;
- three years have passed from the day on which the civil protective order or the civil stalking injunction is dismissed, dissolved, vacated, or expired;
- the person against whom the action was made has not been arrested, charged, or convicted for violating the civil protective order or the civil stalking injunction; and
- no criminal proceedings are pending in the state against the person against whom the action was made.5See Utah Code § 78B-7-1003(5)
Initiating an Expungement Request
To initiate an expungement proceeding, a person must file an application for criminal history with the Utah Bureau of Criminal Identification (BCI), which will require fingerprinting and paying a fee. Once BCI has completed the request and sent it back to the person making the request, the person must fill out a civil cover sheet, a petition for expungement, and a proposed order on the petition for expungement. The person must then file the above forms and a criminal history report with the court.
It is important to note that the person filing for the expungement of a civil protective order or a civil stalking injunction is required to serve a copy of the petition for expungement to the petitioner (i.e., the alleged victim) of the original protective order or stalking injunction that was made against the person seeking the expungement.
Objections to Expungement
The petitioner of the original protective order or stalking injunction may file an objection to the expungement. If the court receives an objection to the expungement, a hearing will be set on the petition for expungement. If no objection is filed with the court within 60 days from the date the petition for expungement is filed, the court may grant the expungement without a hearing.6See Utah Code § 78B-7-1003(2)
After Expungement—A Clean Record
After an expungement has been ordered by the court, the criminal case will no longer appear on the person’s record.
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