TITLE 67

STATE GOVERNMENT AND STATE AFFAIRS

CHAPTER 30

CRIMINAL HISTORY RECORDS AND CRIME INFORMATION

67-3014.  expungement for victims of human trafficking. (1) The provisions of this section shall only apply to individuals who are victims of human trafficking as defined in section 18-8602, Idaho Code, and shall only apply to arrests, criminal prosecutions and convictions that are the result of acts induced by human traffickers.

(2)  Any person who was arrested, prosecuted and/or convicted of a violation of section 18-5613, Idaho Code, or any other offense determined by the court to be appropriate, except convictions for offenses for which a defense of coercion would not be available and that was committed during a period of time when the person was a victim of human trafficking and that was the result of acts required by the human trafficker, may bring a petition under the provisions of this section to vacate such conviction and/or to expunge the criminal history records taken in connection with the conviction, including the arrest and prosecution resulting in such conviction or to expunge any criminal history records related to any arrest or prosecution that resulted in a dismissal or acquittal. Actions brought under this section are civil actions and the petitioner shall not be entitled to the appointment of counsel. Jury trial shall not be available in actions brought under this section.

(3)  Relief shall not be available under this section if the petitioner raised the affirmative defense of coercion at trial and was convicted.

(4)  Any action brought under this section shall be filed within a reasonable time after the arrest, prosecution or conviction that is the subject of the action brought under this section, except that a petition to expunge an arrest that did not result in a prosecution shall not be brought until two (2) years after the arrest.

(5)  If an action is filed under this section while a criminal case against the petitioner is pending and the charges in the criminal case are the same as the ones sought to be expunged or vacated in the action under this section, then the petition under this section shall be dismissed without prejudice.

(6)  The petition filed in this action shall:

(a)  Identify the petitioner, the case number and court in which any conviction or prosecution resulting in acquittal or dismissal occurred, the date and place of arrest and the agency that performed any arrest;

(b)  Include a short, plain statement under oath of the facts demonstrating that the petitioner is entitled to relief under the provisions of this section, including the identity of the human trafficker to the best of the petitioner’s knowledge; the approximate date, place and manner in which the petitioner became a victim of human trafficking; the petitioner’s age at the time the petitioner became a victim of human trafficking; and how the petitioner became involved in the activities resulting in the arrest, prosecution and/or conviction; and

(c)  Include a request for an order vacating the conviction and/or to expunge the criminal history records taken in connection with the arrest, conviction or prosecution.

(7)  If the petition is in regard to a prosecution resulting in acquittal or dismissal or a prosecution resulting in a conviction, then the petitioner shall serve a copy of the petition on the prosecuting attorney’s office that handled such prosecution. If the petition is in regard to an arrest that did not result in a prosecution, then the petitioner shall serve a copy of the petition on the police agency that effected the arrest. If such prosecuting attorney or police agency desires to contest the action under this section, an answer shall be filed in accordance with the Idaho rules of civil procedure.

(8)  The pretrial in any action under this section shall be set not later than sixty (60) days after the petition is served.

(9)  Evidence documenting the person’s status as a victim of human trafficking at the time of the offense from a federal, state or local governmental agency shall create a rebuttable presumption that the person was a victim of human trafficking at the time of the offense but shall not be required to obtain relief under this section.

(10) If the court finds that the petitioner has demonstrated by a preponderance of the evidence that the petitioner’s participation in the activities that resulted in the arrest, prosecution and/or conviction, that is the subject of the petition, occurred during a period of time when the petitioner was a victim of human trafficking and that the petitioner’s participation in the activities that resulted in the arrest, prosecution and/or conviction was the result of acts required by the human trafficker, then the court shall vacate the conviction, if any, and order that the criminal history records taken in connection with the arrest, prosecution and conviction be expunged. The court shall send notice of the order of expungement to each public office or agency that the court has reason to believe may have a record pertaining to the arrest, prosecution and conviction that is the subject of the order of expungement.

(11) If the court enters an order of expungement, then the arrest and all other proceedings that are the subject of the order of expungement shall be considered not to have occurred and the criminal history records taken in connection with the conviction shall be expunged. The criminal history records that are expunged shall not be used against the petitioner for any purpose.

(12) All pleadings and records filed with the court pursuant to the provisions of this section shall be sealed, and any hearing on an action under this section shall be closed to the public. Any information obtained in any pleading or other filing or at a hearing in an action under this section may be used to investigate and prosecute human traffickers.

(13) Upon the entry of an order of expungement under this section, the petitioner shall be deemed to have never been arrested, prosecuted or convicted with respect to the matters that are the subject of the order of expungement, and the petitioner may so swear under oath.

(14) The state of Idaho and any of its political subdivisions shall not be subject to any civil liability as a result of any arrest, conviction or prosecution that resulted in a dismissal or acquittal that is expunged pursuant to the provisions of this section.

(15) For the purposes of this section:

(a)  "Convicted" or "conviction" means that the person has pled guilty or has been found guilty, notwithstanding the form of the judgment or withheld judgment.

(b)  "Expunge" or "expungement" means to destroy, delete or erase a criminal history record as appropriate for the record’s physical or electronic form or characteristic so that the record is permanently irretrievable. Provided however, that all records in a petitioner’s case conducted in accordance with the provisions of this section that are in the custody of the court shall be sealed, and all references to an arrest and/or prosecution resulting in dismissal or acquittal or conviction shall be removed from all indices and records available to the public. A special index of the expungement proceedings and records shall be kept by the court ordering expungement but shall not be available to the public and shall be revealed only to the petitioner or upon order of a court of competent jurisdiction.

(c)  "Prosecuting attorney" has the same meaning as in section 18-6719, Idaho Code.

(d)  "Victim of human trafficking" means a person who is or who was a victim of a violation of section 18-8602, Idaho Code, regardless of whether any person has been convicted of or pled guilty to a violation of section 18-8602, Idaho Code.

History:

[67-3014, added 2015, ch. 308, sec. 1, p. 1212.]