36-2862. Expungement; petition; appeal; dismissal of complaints; rules

Full 36-2862. Expungement; petition; appeal; dismissal of complaints; rules

36-2862. Expungement; petition; appeal; dismissal of complaints; rules

  (Caution:  1998 Prop. 105 applies)

A. Beginning July 12, 2021, an individual who was arrested for, charged with, adjudicated or convicted by trial or plea of, or sentenced for, any of the following offenses based on or arising out of conduct occurring before the effective date of this section may petition the court to have the record of that arrest, charge, adjudication, conviction or sentence expunged:

1. Possessing, consuming or transporting two and one-half ounces or less of marijuana, of which not more than twelve and one-half grams was in the form of marijuana concentrate.

2. Possessing, transporting, cultivating or processing not more than six marijuana plants at the individual's primary residence for personal use.

3. Possessing, using or transporting paraphernalia relating to the cultivation, manufacture, processing or consumption of marijuana.

B. If the court receives a petition for expungement pursuant to this section:

1. The court shall notify the prosecuting agency of the filing of the petition, and allow the prosecuting agency to respond to the petition within thirty days.

2. The court may hold a hearing:

   (a) On the request of either the petitioner or the prosecuting agency.

   (b) If the court concludes there are genuine disputes of fact regarding whether the petition should be granted.

3. The court shall grant the petition unless the prosecuting agency establishes by clear and convincing evidence that the petitioner is not eligible for expungement.

4. The court shall issue a signed order or minute entry granting or denying the petition in which it makes findings of fact and conclusions of law.

C. If the court grants a petition for expungement:

1. The signed order or minute entry required pursuant to subsection B, paragraph 4 of this section shall do all of the following:

   (a) If the petitioner was adjudicated or convicted of an offense set forth in subsection A of this section, vacate the judgment of adjudication or conviction.

   (b) State that it expunges any record of the petitioner's arrest, charge, conviction, adjudication and sentence.

   (c) If the petitioner was convicted or adjudicated of an offense set forth in subsection A of this section, state that the petitioner's civil rights, including the right to possess firearms, are restored, unless the petitioner is otherwise not eligible for the restoration of civil rights on grounds other than a conviction for an offense set forth in subsection A of this section.

   (d)  Require the clerk of the court to notify the department of public safety, the prosecuting agency and the arresting law enforcement agency, if applicable, of the expungement order.

   (e) Require the clerk of the court to seal all records relating to the expunged arrest, charge, adjudication, conviction or sentence and allow the records to be accessed only by the individual whose record was expunged or the individual's attorney.

2. The department of public safety shall seal and separate the expunged record from its records and inform all appropriate state and federal law enforcement agencies of the expungement. Unless the petitioner is indigent, the department of public safety may charge the successful petitioner a reasonable fee determined by the director of the department of public safety to research and correct the petitioner's criminal history record.

3. The arresting and prosecuting agencies shall clearly identify in each agency's files and electronic records that the petitioner's arrest, charge, conviction, adjudication and sentence are expunged and shall not make any records of the expunged arrest, charge, conviction, adjudication or sentence available as a public record to any person except to the individual whose record was expunged or that individual's attorney.

D. An arrest, charge, adjudication, conviction or sentence that is expunged pursuant to this section may not be used in a subsequent prosecution by a prosecuting agency or court for any purpose.

E. An individual whose record of arrest, charge, adjudication, conviction or sentence is expunged pursuant to this section may state that the individual has never been arrested for, charged with, adjudicated or convicted of, or sentenced for the crime that is the subject of the expungement.

F. If the court denies a petition for expungement, the petitioner may file a direct appeal pursuant to section 13-4033, subsection A, paragraph 3.

G. On motion, the court shall dismiss with prejudice any pending complaint, information or indictment based on any offense set forth in subsection A of this section, to include charges or allegations based on or arising out of conduct occurring before the effective date of this chapter. The individual charged may thereafter petition the court to expunge records of the arrest and charge or allegation as provided in this section.  A motion brought pursuant to this subsection may be filed with the court before July 12, 2021.

H. The supreme court may adopt rules necessary to implement this section, and may also sponsor public service announcements or other notifications intended to provide notice to individuals who may be eligible to file petitions for expungement pursuant to this section.

I. A prosecuting agency may file a petition for expungement pursuant to this section on behalf of any individual who was prosecuted by that prosecuting agency, and the attorney general may file a petition for expungement pursuant to this section on behalf of any individual.