Draft Expungement Code & Request for Comments

At the direction of the Southern Ute Indian Tribal Council, the Tribe’s Legal Department is seeking comments on a draft Expungement Code, a copy of which is attached.

Deadline for submission of written comments: Please provide any written comments on the draft code by Tuesday, January 31, 2017. Please submit your comments to James Washinawatok or Anthony Maestas, Legal Department, by one of the following methods:

E-mail: jwash@southernute-nsn.gov or amaestas@southernute-nsn.gov
Mail: James Washinawatok or Anthony Maestas, Legal Department, Southern Ute Indian Tribe, P.O. Box 737, Ignacio, Colorado, 81137.
Hand delivery: Legal Department, Leonard C. Burch Tribal Administration Building, Ignacio, Colorado, 81137
Phone: 970-563-0100 (ext. 2210 or 2143)

Summary of draft code: The draft Expungement Code would be a new Title of the Tribal Code. The Code “provides the grounds and procedures to expunge Southern Ute criminal records where a petition is authorized under this Code. This Code’s purpose is to provide an opportunity for people who rehabilitate themselves, and who now live their lives in a manner consistent with our community’s standards, to have a second chance to live without the stigma and legal disabilities from a criminal record.” To that end, the Expungement Code provides a process that allows a person who meets strict eligibility requirements, and where the Tribal Court determines that granting the expungement is not contrary to the interests of public safety, to have his record of arrest, investigation, detention, and conviction expunged.

The draft Code was developed by reference to other tribes’ similar codes and with participation by representatives from the Tribal Court, Department of Justice and Regulatory, and the Legal Department. The draft Expungement Code has been reviewed by the Tribal Council and authorized it for proposal to the Tribe’s membership.

For further information contact: James Washinawatok or Anthony Maestas, Legal Department, Southern Ute Indian Tribe, P.O. Box 737, Ignacio, Colorado, 81137; telephone number 970-563-0100 (ext. 2210 or 2143); e-mail jwash@southernute-nsn.gov or amaestas@southernute-nsn.gov.

TITLE 28

SOUTHERN UTE INDIAN TRIBAL CODE

EXPUNGEMENT

28-1-101. Legislative Declaration. This Code provides the grounds and procedures to expunge Southern Ute criminal records where a petition is authorized under this Code. This Code’s purpose is to provide an opportunity for people who rehabilitate themselves, and who now live their lives in a manner consistent with our community’s standards, to have a second chance to live without the stigma and legal disabilities from a criminal record.

28-1-102. Definitions.

(1) Expungement. Expungement means the physical sealing of an official record and the release from all penalties and disabilities resulting from the offense with which petitioner had been charged or convicted.

(2) Disability. For purposes of this Code, disability means a revoked legal right or privilege as a result of a criminal conviction or other governmental action, as when a person’s driver’s license is revoked as a result of a Driving Under the Influence (DUI) conviction.

(3) Petitioner. The person seeking to expunge a Southern Ute criminal record, or his attorney, if represented.

(4) Tribal Court. The Southern Ute Indian Tribal Court.

(5) Tribal Prosecutor. The Southern Ute Indian Tribal Prosecutor.

28-1-103. Expungement Procedure. The procedure to expunge Southern Ute records for the arrest, investigation, detention, and conviction of a petitioner is as follows:

(1) The petitioner shall file a petition for expungement in the Tribal Court.

(2) The petitioner shall serve a copy of the petition to the Tribal Prosecutor’s Office.

(3) The Tribal Court shall set a hearing and notify the petitioner, Tribal Prosecutor, and victim, if any, of the hearing date.

28-1-104. Eligibility to Expunge Southern Ute Criminal Records of Offenses without Convictions. A person who has been arrested or formally charged with a criminal offense, but never convicted of the charged offense, may petition to expunge the record of arrest and any investigation made in a case, subject to the following conditions:

(1) There are no criminal proceedings pending against the petitioner and one of the following occurred:

(a) The case was dismissed with prejudice;

(b) The person was acquitted at trial on all of the offenses charged in the case; or

28-1-105. Eligibility to Expunge Southern Ute Criminal Records of Offenses with Convictions.

(1) A petitioner’s record is not eligible for expungement:

(a) If a criminal case punishable by imprisonment, except minor traffic or petty offenses, is pending in any jurisdiction against the petitioner;

(b) If the petitioner’s criminal record contains three or more criminal convictions, except minor traffic or petty offenses, arising from separate incidents in any jurisdiction;

(d) If the petitioner has been convicted in any court of a new offense, except minor traffic or petty offenses, within five years prior to filing of the petition for expungement;

(e) If the petitioner is the restrained party under a protection order in any jurisdiction; and

(f) Until all of the following have occurred:

i. Ten years have passed from the date the petitioner was convicted or released from incarceration, parole, or probation, whichever occurred last, for each conviction the petitioner seeks to expunge;

ii. All criminal fines, fees, and restitution ordered by the court have been paid in full; and

iii. Any and all restitution ordered by the Tribal Court has been paid in full.

(2) The following offenses are not eligible for expungement:

(a) Homicide or related offenses, and any attempt, conspiracy, or solicitation of such an offense;

(b) Abduction or related offenses, and any attempt, conspiracy, or solicitation of such an offense;

(d) Fraud and related offenses;

(e) Crimes of dishonesty, including but not limited to:

i. Theft

ii. Robbery

iii. Burglary

iv. Embezzlement, Theft of Property Lawfully Obtained

v. Forgery

vi. Bribery

vii. Perjury

viii. Criminal impersonation

(f) Assault and Battery on a Peace Officer;

(g) Offenses involving a deadly weapon, serious bodily injury, or strangulation;

(h) Domestic Violence offenses involving a deadly weapon, serious bodily injury, or strangulation; and

(i) Alcohol and drug-related driving offenses.

28-1-106. Contents of Petition. A petition for expungement shall be signed under oath by the petitioner and shall include the following:

(1) Petitioner’s full name, all other legal names or aliases ever used by petitioner, petitioner’s date of birth, and social security number.

(2) All of the petitioner’s physical addresses from the date of the offense or alleged offense, in connection with which an expungement order is sought, to the date of the petition.

(3) An FBI Identity History Summary or proof that one does not exist. If any physical address provided under subsection (2) above is located on an Indian reservation, for each such reservation address, a certified criminal history record from the Tribal Court or the law enforcement agency having criminal jurisdiction over the petitioner and over the territory where the physical address is located, or proof that such a record does not exist.

(4) The reason(s) for which the petitioner requests expungement, if it is for employment, licensure, or other purposes, and why it should be granted.

(5) A statement that the petitioner meets the eligibility requirements in this Code.

(6) Details of the offense or arrest for which expungement is sought, including the date of the occurrence, the court file number, and the date of conviction; either the names of any victims or that there were no identifiable victims; whether there is a current order for protection, restraining order, or other no contact order prohibiting the petitioner from contacting the victims or whether there has ever been a prior order for protection or restraining order prohibiting the petitioner from contacting the victims.

(7) For expungement of convictions, a statement on what steps the petitioner has taken since the time of the offense toward personal rehabilitation, including treatment, classes, employment, or other personal history that demonstrates rehabilitation.

(8) Petitioner’s criminal conviction record indicating all convictions under the laws of the Southern Ute Indian Tribe; all convictions in any state court, federal court, tribal court, or foreign country; and whether the convictions occurred before or after the arrest or conviction for which expungement is sought.

(9) Petitioner’s criminal history, indicating all prior and pending criminal charges against the petitioner under any state court, federal court, tribal court, or foreign country, including all criminal charges that have been continued for dismissal or stayed for adjudication, or have been the subject of pretrial diversion; and

(10) All prior requests by the petitioner, whether for the present offense or for any other offenses, in the Tribal Court or any other tribal, state, or federal court, for pardon, return of arrest records, or expungement or sealing of a criminal record, whether granted or not, and all stays of adjudication or imposition of sentence involving the petitioner.

28-1-107. Service of Petition.

(1) The petitioner shall serve the petition for expungement on the Tribal Prosecutor.

(2) If the case for which expungement is sought involved a victim, the Tribal Prosecutor shall make reasonable efforts to serve the victim with a copy of the petition for expungement and notify the victim of the right to respond to the petition by filing a recommendation, an objection, or statement with the Tribal Court and the right to testify at the hearing.

28-1-108. Objections, Responses, and Setting. When a petition for expungement is filed, the Tribal Court shall set a date for a hearing on the petition and shall give notice to the petitioner, or his attorney if represented, the Tribal Prosecutor, and the victim, if applicable.

(1) Within 21 days after receipt of the petition, the Tribal Prosecutor shall file a consent or objection to the petition and serve copies on the petitioner or his attorney, if represented.

(2) The victim, if applicable, may respond to the petition by filing a recommendation or objection with the Tribal Court at least seven days before the hearing on the petition.

(3) A hearing shall be set within 45 days of service of the petition upon the Tribal Prosecutor.

28-1-109. Hearing.

(1) At the hearing, the parties shall be afforded an opportunity to be heard.

(2) Any person who may have relevant information about the petitioner may testify at the hearing.

(3) A victim of the offense for which expungement is sought has a right to submit a written statement to the Tribal Court or testify at the time of the hearing, including the victim’s recommendation on whether expungement should be granted or denied.

(4) Following the hearing, the Tribal Court shall enter an order granting or denying the petition within 30 days.

(5) The Tribal Court shall issue an order of expungement if it finds by clear and convincing evidence that:

(a) The petition and petitioner’s eligibility are sufficient under the provisions of this Code;

(b) The record for which expungement is sought is the type eligible for expungement under the provisions of this Code; and

(6) If the Tribal Court grants the petition for expungement, the Tribal Court shall enter an order directing expungement that includes the following language:

This expungement order releases the petitioner from all penalties and disabilities resulting from the offense with which petitioner had been charged or convicted and removes those disabilities that otherwise would be imposed under applicable law.

Any entity in possession of the criminal records expunged by this order shall physically seal and conspicuously indicate on the face of the record, or at the beginning of the computerized file of the record, that the record has been ordered expunged. Access to or disclosure of the contents of an expunged file is allowed only by Tribal Court order.

(7) If the Tribal Court denies the petition for expungement, the Tribal Court shall enter an order denying the petition and stating the reasons for the denial.

(8) The granting or denying a petition is an appealable final order.

28-1-110. Effects of Expungement Order.

(1) Expungement shall be effectuated by physically sealing and conspicuously indicating on the face of the record or at the beginning of the computerized file of the record that the record has been designated as expunged. Access to an expunged file is allowed only by Tribal Court order.

(2) An expungement granted by the Tribal Court regarding a conviction releases the petitioner from all penalties and disabilities resulting from the offense for which petitioner had been charged or convicted and removes those disabilities that otherwise would be imposed under applicable law.

(3) The fact that the person has been charged with or convicted of the expunged offense shall not be included in the person’s criminal history.

(4) For all purposes, including responding to questions on any application for employment, license, civil right or privilege, or any question when testifying as a witness, a person whose conviction of an offense has been expunged under this Code may state that such person has never been convicted of such offense.

28-1-111. Distribution of Expungement Order and Prohibition on Further Disclosure of Expungements.

(1) A petitioner who is granted an expungement order under this Code shall be responsible for delivering a certified court copy of the expungement order to all affected agencies and officials, including the Southern Ute Police Department and the Southern Ute Detention Center.

(2) Within 15 calendar days of granting an expungement order, the Tribal Court shall submit a certified copy of the expungement order to the Federal Bureau of Investigation (FBI) Criminal Justice Information Services Division to ensure that the criminal history records with the National Crime Information System and related databases are expunged.

(3) Every Southern Ute Indian Tribal entity that receives the expungement order shall expunge the petitioner’s identifying information contained in records in its possession relating to the incident for which expungement is ordered.

(4) Once the Tribal Court grants an expungement, Southern Ute Indian Tribal entities are prohibited from disseminating or disclosing that record.