Expungement (also called “expunction”) is a court-ordered process in which the legal record of an arrest or a criminal conviction is sealed, or erased in the eyes of the law. When a conviction is expunged, the process may also be referred to as “setting aside a criminal conviction.” The availability of expungement, and the procedure for getting an arrest or conviction expunged, will vary according to several factors, including the state or county in which the arrest or conviction occurred. In some jurisdictions, it’s not possible to get an expungement. An expungement ordinarily means that an arrest or convictions sealed, or erased from a person’s criminal record for most purposes. After the expungement process is complete, an arrest or a criminal conviction ordinarily does not need to be disclosed by the person who was arrested or convicted. For example, when filling out an application for a job or apartment, an applicant whose arrest or conviction has been expunged doesn’t need to disclose that arrest or conviction. In most cases, no record of an expunged arrest or conviction will appear if a potential employer, educational institution, or other company conducts a public records inspection or background search of an individual’s criminal record. An expunged arrest or conviction is not necessarily completely erased, in the literal sense of the word.
An expungement will ordinarily be an accessible part of a person’s criminal record, viewable by certain government agencies, including law enforcement and the criminal courts. This limited accessibility are sometimes referred to as a criminal record being “under seal.” In some legal proceedings, such as during sentencing for any crimes committed after an expungement, or in immigration/deportation proceedings, an expunged conviction that is “under seal” may still be considered as proof of a prior conviction.
Factors Determining Eligibility for Expungement
Whether you may get a criminal record expunged depends on a number of factors, including the jurisdiction; the nature of the crime or charge; the amount of time that has passed since the arrest or conviction; and your criminal history. Some states don’t allow for the expungement of criminal convictions at all. Having your criminal records sealed is similar to having them expunged, but much less “hidden.” If your records are sealed, then it means they are not available to the public; this would include private investigators, credits, and employers. However, these records still exist in the context of the criminal justice system. For example, the sealed convictions will still be considered prior offenses if you are arrested in the future.
Eligibility for Expungement
Since an expungement can offer a fresh start of sorts, one of the most important actions that people who have been arrested or convicted can take is to investigate their jurisdiction’s expungement procedures. Start by checking with your county’s criminal court, or even the law enforcement agency that handled your arrest. Specifically, ask the following questions about eligibility for expungement and the procedure that’s involved:
• Is a particular offense eligible for expungement? For example, a jurisdiction may allow expungement only for arrests and misdemeanor convictions and not allow felony convictions to be expunged.
• When is a person eligible for an expungement? For example, expungement may be available only after people have finished serving their sentences, including any term of probation. (But, if there’s a good reason, a judge may shorten a period of probation in order to allow expungement to take place earlier.)
• What does the expungement process involve? Expungement doesn’t necessarily require hiring an attorney. Many courts have forms available, with titles along the lines of “Motion for Expungement.”
• What are the consequences of expungement? Even if a conviction has been expunged, could it still show up in some circumstances? For example, police departments and some licensing boards may be able to find out about job applicants’ expunged records.
Getting a “Certificate of Actual Innocence”
A Certificate of Actual Innocence is perhaps the most powerful form of expungement. This certificate does more than seal a prior record; it proves that a record should never have existed at all.
Drug Crimes and Juvenile Offenses
In many jurisdictions, people who have been arrested or convicted for drug crimes and juvenile offenders may have an easier path to expungement.
• Drug offenses: Many people arrested for drug offenses are eligible for diversion programs. These programs typically provide for the expungement of records following the satisfactory completion of a program.
• Juvenile offenses: People who were arrested or convicted as juvenile offenders may have an easier time getting their criminal records expunged or sealed. Usually this is an option once the person reaches the age of 18, and they’ve otherwise stayed out of trouble with the law.
It may come as no surprise that Utah was one of the first states to outlaw marijuana. The criminalization of this substance happened clear back in 1915. Marijuana is classified as a Schedule I controlled substance in Utah. Citizens who favor legalization for either medicinal or recreational use can find themselves in a frustrating place. In many ways, the societal views of cannabis, weed, or pot use have changed and will probably continue to do so. Regardless of what our neighboring states are doing, one thing is still certain. It is illegal to carry any amount of cannabis in Utah without specific approval; if you or a loved one has been arrested for possession, the following charges depending on the amount in your possession at the time of the arrest.
• One ounce or less – class B misdemeanor
• Up to six months of jail time
• Up to $1,940 in fines and an assessment
• Possession in a drug-free zone such as a school, church, or park can result in a charge being upgraded to a class A misdemeanor
• Between one ounce and one pound – class A misdemeanor
• Up to 12 months of jail time
• Up to $4,790 in fines and an assessment
• Between one and 100 pounds – a third-degree felony
• Up to five years in Utah State Prison
• Up to $9,540 in fines
• Over 100 pounds – a second-degree felony
• Up to 15 years in Utah State Prison
• Up to $19,040 in fines and an assessment
The implication of weed charges
Most people find themselves in a position where they have less than one pound of marijuana. Relative to other drug charges, the penalties can seem relatively light. This is especially true if you are a first time offender and happened to find yourself in the wrong place at the wrong time. When you have a small amount of marijuana or paraphernalia in your possession, the central area of concern may be other areas besides fines or jail time.
Utah Marijuana Laws
For the most part, marijuana possession and sale are illegal in Utah. Lawmakers have yet to compromise on expected amendments to the medical marijuana law after its Dec. 6, 2018 enactment date. However, the law will allow those with a physician’s recommendation to purchase marijuana from a licensed dispensary (or grow their own medicine if they live more than 100 miles from the nearest dispensary). State law allows patients suffering from epileptic disorders to use cannabidiol (CBD) in limited concentrations for medical treatment (prior to the broader 2018 medical marijuana law). As far as recreational use is concerned, conviction for selling pot in the state constitutes a felony punishable by up to 15 years in prison, depending on the amount and location of the sale, and the criminal history of the seller. While state marijuana laws regulate pot within the state, marijuana possession, sale, and trafficking remain illegal under federal law by way of the Controlled Substance Act.
Utah Misdemeanor Crimes by Class and Sentences
• Misdemeanors in Utah are punishable by up to 364 days in county or local jail, and are designated as class A, B, or C.
• Misdemeanors in Utah are punishable by up to 364 days in county or local jail, and are designated as class A, B, or C. Some misdemeanors are unclassified and punished as infractions.
Felonies (more serious crimes) are punishable by incarceration in state prison.
Class A Misdemeanors
A class A misdemeanor is the most serious type of misdemeanor in Utah, punishable by up to 364 days in jail and a fine of as much as $2,500. Theft of services or property worth between $500 and $1,500 is a class A misdemeanor.
Class B Misdemeanors
Under Utah’s laws, class B misdemeanors are punishable by up to six months in jail and a fine of up to $1,000. For example, an adult who knowingly furnishes alcohol to a minor can be convicted of a class B misdemeanor in Utah.
Class C Misdemeanors
A conviction in Utah for a class C misdemeanor can result in up to 90 days in jail and a fine of up to $750. Class C misdemeanors are the least serious misdemeanor crimes under Utah’s laws. Driving on a suspended license, for instance, is typically a class C misdemeanor.
If a statute designates an offense as a misdemeanor but fails to classify or specify a punishment for it, the crime is punishable as an infraction. Potential punishments include:
• a fine of up to $750
• compensatory service (unpaid work for a government agency, nonprofit, or other court-approved organization)
• forfeiture (government seizure of property from the convicted person)
• disqualification from public or private office, or
• any combination of those punishments.
Statutes of Limitations
A statute of limitations is a time period, set by lawmakers, during which the state must begin criminal prosecution. The statute of limitations begins to “run” when the crime is committed. Most misdemeanors in Utah have a statute of limitations of two years. The laws relating to expungement are highly variable and different jurisdictions may have different requirements that need to be met before an expungement can be granted. It’s a good idea to contact a criminal defense attorney who can advise you about the requirements to have your prior conviction expunged, taking into account local rules and the facts of your case.
Utah Marijuana Possession Laws
The requirements to charge an individual with marijuana possession and other drug crimes are listed under Utah’s Controlled Substances Act. A combination of state and federal laws makes it illegal to not only possess a certain amount of marijuana but also to possess any drug paraphernalia needed to use marijuana. Marijuana possession, sometimes referred to as simple possession, is an offense that arises out of possession of marijuana for personal use. This contrast with an offense for possession with intent to distribute (PWID), a crime that focuses on the offender manufacturing and distributing drugs. The possession of marijuana is also referred to by terms like “actual possession” and “constructive possession,” depending on how law enforcement located the drugs. If an offender actually possessed marijuana when they were arrested, it means that they had it on their person or in an item that they were carrying. If an offender constructively possessed marijuana, it implies that they had knowledge of and control over the drugs found by law enforcement. For example, if you hid drugs in the trunk of your car or in a safe in your home, you will likely be charged with possession if law enforcement finds it, even if you did not have the drugs on your person.
Penalties for First Offense Marijuana Possession
To reiterate, the penalties for marijuana possession are directly correlated to the amount of marijuana that you are discovered with. If the weight of the drugs in your possession is over a certain limit, you risk being charged with a felony instead of a misdemeanor, even if this was the first time you were arrested for possession. If you are found with less than 100 pounds of marijuana, you will likely receive a class B misdemeanor charge. The penalties for a class B misdemeanor are a maximum of six months in jail and up to $1,000 in criminal fines. If you receive a class B misdemeanor conviction for marijuana possession, you may be given the option to perform compensatory service instead of paying a fine. The hours you will have to work typically depend on the amount of your criminal fine. If you were granted the option of compensatory service, you could volunteer with:
• A charity
• Utah state or local government agencies
• A business or organization approved by a Utah court
If you are arrested with over 100 pounds of marijuana in your possession, you can be charged with a second degree felony. In Utah, second degree felonies carry a maximum penalty of 15 years in prison and $10,000 in fines. Additionally, there are other factors that could make a possession charge even more severe. For example, if you are arrested with drugs in a school zone, the penalties for possession may be increased, or you may even be charged with an additional crime. However, it is important to note that if you are a nonviolent, juvenile or first time offender, you may be eligible for drug rehabilitation programs instead of being incarcerated.
Facing Marijuana Possession Charges In Utah
Utah law states that it is illegal for a person to “knowingly and intentionally” possess any controlled substance unless it is through a lawful medical prescription. Marijuana is classified as a Schedule I controlled substance, and use of medical marijuana is still criminalized in Utah. Drug possession can also include what is called “constructive possession,” which usually happens when a person has an illegal substance in a car or home, and other people in the car or home know about it and do not specifically disclaim it. In these cases, a person can be charged with marijuana possession even if he or she never bought, used, or actually possessed the drug. Although classified as a Schedule I drug, marijuana is treated differently than other drugs in this category. Rather than automatically being classified as a felony, possession of marijuana may be charged as a misdemeanor if the amount is less than one pound and not intended for sale or distribution. This does not mean, however, that the potential consequences of a marijuana possession charge are not severe. Along with stiff criminal penalties, there are various collateral consequences that may result from the conviction going onto your criminal record, such as:
• Losing your job or not getting a job or promotion because of a background check
• Driver’s license suspension or revocation
• Loss of student financial aid
• Loss of reputation or community responsibilities
• Loss of hunting license and right to own a gun
• Loss of ability to volunteer at certain non-profit agencies
When you need legal help with Cannabis Law in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506