Interviewer: Is there any way that someone can get it expunged or removed from their record?
Court Koehler: Yeah. It is possible to get them expunged. In Utah, basically, there’s a waiting period. There’s a list of crimes that cannot be expunged. Assault, just regular assault is expungeable, so that’s good news. For a Class B misdemeanor you have to wait four years though. For four years it’s going to be on your record, and then you get it expunged, then you can get it taken care of. You can get it off your record and you’re okay. It’s going to follow you around for that time period while you’re waiting for the waiting period to go through. If it’s a Class A misdemeanor, I believe the waiting period is six years. For a 3rd degree felony, it’s long. I don’t want to say off the top of my head without looking. The bottom line is you’re looking at a long period of time. The more serious the crime is the longer the wait is going to be for you to be able to get it expunged.
Individuals May Face Obstacles When Engaged in Expungement of an Assault Charge
Interviewer: Are people going to have any sort of barriers during the expungement process? Is there still going to be some sort of barriers that I’m going to face through either the prosecution or the judge?
Court Koehler: Yeah. There can be. Typically expungements go pretty smoothly, but you do have some cases where a prosecutor will object. Then it can become a little sticker. The basic process is once you are eligible for expungement, meaning you’ve gone through the time period that you have to wait, and your crime is a crime that’s expungeable under the law, then what you do is you apply to the bureau of criminal identification at the Utah state carbon of safety. You get a certificate of eligibility. You take that certificate of eligibility which just says that they certified that you have this charge on your record and it is eligible to be expunged according to the law. Then you take that certificate and you file it with the state, or with the court. It’d be the court where whatever your charge was originally, where ever you were convicted. You file it with them and you basically make a motion for expungement.
Mostly Prosecutors Do Not Oppose Expungement If it is an Expungeable Crime
The prosecutor has an opportunity to object to that motion. Usually they don’t, but if it’s a situation where the facts of the crime were particularly violent or the prosecutor’s worried about your criminal history or something like that, then they can object to it. In which case it would go before a judge and you would argue your side of the story. Hopefully the judge would side with you and give you the expungement. It may or may not work. Most of the time it goes pretty smoothly. Most of the time the prosecutors aren’t going to bother to object, as long as you have waited the right amount of time and your crime is something that’s expungeable. You can usually get it expunged.
An Attorney Can Convince a Judge Regarding the Conduct of His Client in Regards to an Assault Case
Interviewer: Are there individuals that actually do come back and it’s been like 15, 20 years since they’ve had an assault charge? An assault charge can affect another charge in the future. What’s an example of that?
Court Koehler: Certain charges are enhanceable. Let me speak to your first question first though. In terms of something happening a really long time ago. I’ve never seen someone with an assault charge that was really old and then they come back and they’ve got a new assault charge and that the first ones 15 years ago. I never really dealt with that. My experience is that when you’ve got something that’s really old, what you want is you want an attorney that’s going to be able to tell your side of the story to the judge in an effective way. That’s why you get an attorney. An attorney knows how to tell the right stories to the judge. The attorney knows how to show the judge that “Look, this is this guy’s second charge, but that first one was really long time ago. Since then he’s done this and this and this.” Maybe you’ve done anger management, or you’ve completed probation and things like that. If something’s that far apart, you’re definitely going not sort of see the same consequences as if you’ve assaulted two people in a span of a year. It’s a different situation.
If An Individual is Charged With An Enhanceable Offense then on a 2nd Offense , they Get Stiffer Mandatory Minimum Sentencing
If you’ve got a situation like that, it’s even more important to have an attorney to make sure that when sentencing comes around, he knows how to sort of let the judge know what the real story is behind those charges. As far as aggravating or enhancing offenses, when you get a certain offense, like a domestic violence offense, I think, is enhanceable. I don’t know that just a regular assault is enhanceable. When you get an enhanceable offense, what it means is that if you get the second offense, then you’ve got stiffer mandatory minimum sentencing that the judge gives you. It’s even, in some cases, it’s out of the judges hands, as far as what he’s going to sentence you. There’s a minimum he now has to give you a certain amount of jail time because this is your second offense, for instance.