James R. Balmforth: Correcting Errors In NICS Background Check

Utah state law does not restrict the use of official background checks for employment, housing, or loans. Utah follows the federal laws established through the Fair Credit Reporting Act, the Equal Employment Opportunity Commission, and the Federal Trade Commission. Utah is a ban the box state, but only for public employers. Private employers may request information about arrests and convictions provided they remain within the guidelines established by federal law.

Unofficial background checks can be useful for finding out about the character of Utah residents, but cannot be used for employment decisions, tenancy, or loans. Utah residents can get unofficial background checks by accessing law enforcement and court records on line or in person to find out about:
• Neighbors
• Friends
• Romantic interests
• Members of the Church
• Family
Utah Public Records Act and Laws for Background Check

Government Records Access and Management Act (GRAMA)

Utah’s public records act is called the Government Records Access and Management Act (GRAMA). many documents are public information in Utah, including conviction records, civil and criminal court cases, DUI convictions, and many other related documents. Utah makes all state and local government documents publicly accessible, which includes meeting minutes, decisions made by governing boards, and other processes through state agencies public information. Utah conducts background checks for state convictions through the Utah Department of Public Safety. Official background checks in Utah follow the federal guidelines established by the FCRA and EEOC. Additional restrictions on who may access data and how the data can be used are included in state law, but largely allow most private employers to use criminal background checks for hiring purposes.

Can you get a Free Background Report in Utah?

Official state background checks are not free in Utah. Utah uses both name-based and fingerprint-based background checks, depending on specific circumstances.

Individuals seeking background information for unofficial purposes can access records in person at local courts, or can access documents online through Utah’s public fee-based portal. Utah restricts the access of background checks through the Bureau of Criminal Information. under state law in Utah, an employer may not directly request a background check on an individual. Rather, the individual is required to obtain a background check on themselves and submit the results to the employer. This procedure can be accomplished through the BCI website.

Utah Data Repository

Individual courts and state agencies are responsible for maintaining public document records in Utah. Court cases more than 50 years old are retained in the Archived Court Record. Records are available in person or by online or mail-in request. Utah restricts the types of jobs that require a background check. In most cases, an employer in Utah can request that an applicant submit a records check for criminal conduct, but must ensure that convictions would prevent the employee from safely or legally performing the job.

Under the Utah Selection Procedures Act, employers are prevented from inquiring about social security numbers, driver’s license information, or date of birth in almost all cases.

• Childcare – Utah requires any person involved in childcare, whether as an employee or a volunteer, to undergo both FBI and BCI background checks. BCI and FBI background checks may be provided directly to the employer. Unofficial background checks can be conducted in person at the relevant court or law enforcement station.

• Education – Applicants to positions that deal with education will be required to undergo a fingerprint-based background check. Background checks may be provided to the employer directly.

• Finance– Applicants and employees in the financial sector are required to undergo criminal background checks through the BCI and FBI using fingerprint-based inquiries. BCI and FBI may submit results directly to financial institutions.

Most private employers in Utah may not request a background check to be conducted on an individual through a third party or through official channels. Instead, employers must request that applicants generate background checks themselves and provide a sealed copy to the employer.

Firearm Background Checks Utah

Utah uses state and federal fingerprint-based background checks for all gun sales through licensed dealers. Utah does not have state laws requiring background checks at gun shows and does not prohibit private sales of firearms. A permit to conceal carry is required and necessitates an FBI and BCI background check.

Utah Gun Laws

Utah has fairly permissive laws related to firearms. The state does not impose a waiting period for either hand guns or long gun purchases by residents of the state. Utah prevents private sales to felons when the seller knows the individual is not allowed a firearm. The state of Utah does not require a permit for gun ownership or sales but does require a permit for concealed carry of weapons; there are some legal peculiarities about whether a weapon must be permitted if it is unloaded or more than two actions from being fired. Background checks may be made by law enforcement when applying for a concealed carry permit.

Utah Criminal Background Checks

Background checks for criminal history is a frequent benchmark for many sorts of applications, including those who seek to immigrate into the country, those who wish to adopt a child, those who want to join the service, those who are applying for a job, and those who wish to work with or volunteer in a place where children or the elderly are housed. Getting a copy of your criminal background record is helpful to understand what employers or recruiters will be looking at and to correct any errors or omissions (such as incomplete records).

DUI Penalties and Statistics in Utah

The strict religious people in the state of Utah support a new law that would elevate the state among the toughest in the nation on Driving Under the Influence (DUI). A new law set to begin in 2018 would lower the threshold for DUI from .08 to .05 blood alcohol content. A survey of state DUI laws showed Utah with the harshest “preventative” measures but not the toughest criminal penalties for DUI, landing it in 8th place overall. In 2014, Utah law enforcement made more than 10,000 arrests related to DUI, which was responsible for 29 percent of motor vehicle fatalities in 2015, costing more than $44 billion a year. Utah is known for its large Mormon (The Church of Jesus Christ of Latter-day Saints) population, which comprises more than half of the adults in the state. Mormons do not drink alcohol. Legislators are apparently making slight revisions to the law to loosen requirements on DUI when related to certain activities like hunting. The penalty for DUI in Utah is generally a misdemeanor (discounting any moving violations or other related crimes), including 48 hours in jail (mandatory), fines up to $1,800, required community service, prohibited from getting a concealed carry permit for firearms, and a 120-day license suspension. The charge rises to a felony on the third DUI arrest within 10 years.

Felony Sentences in Utah

Those who are convicted of felonies are generally penalized for life in the following ways: they are not allowed to own or possess firearms, they may not vote or run for public office, they may not join the armed services without a special waiver, and they are unlikely to be allowed to live in subsidized public housing. If there are felonies in your background, you may request to have them expunged or sealed by the state. The list on this page shows which felonies are eligible for expungement – generally none that are violent or recent.

What Criminal Background Report in Utah includes?

Most criminal records retained by the state of Utah will be included in a background check. Utah allows reporting of arrests, convictions, and sentencing.

Are Public Criminal Records included in a background check?

Virtually all records generated by a state agency or law enforcement department will be retained as public documents in Utah and can be accessed by the public in person or by paid request online or through the mail.

Which Court Records Are Public in Utah?

Claims, convictions, and sentencing reports make up the bulk of the public documents available through official background checks. Sealed and expunged records are not public. In most cases, arrests that do not result in a conviction will not be reported. Juvenile records will not be reported unless the individual was convicted of a serious crime and tried as an adult.

What arrest records would show in a background report?

Common documents that are included in official background checks can often be obtained by members of the public through unofficial channels, like visiting a courthouse in person and requesting documents.

• Warrants – Active warrants will be reported on official state background checks. Individuals can contact local law enforcement in Utah to unofficially determine a warrant status.

• Dui – DUI convictions will be reported by official background checks. In most cases, members of the public can find out if they have a conviction for DUI on their record by contacting the local Department of Motor Vehicles or local law enforcement.

• Drug / Marijuana – Marijuana is heavily regulated in Utah. Convictions for possession or sale will be reported on a criminal background check. Utah is a medical marijuana state. Convictions can be unofficially found through the Utah courts online, in person, or by mail.

• sex offender – Convictions for sex-based crimes will be reported on official background checks. Individuals can investigate whether a person is a registered sex offender through the sex offender registry.

• Parole/Probation – Convictions that result in sentencing of parole or probation will be reported on an official background check. Individuals can check for criminal convictions through the Utah Department of Corrections.

• Mugshots – Photos, including mugshots, that are included with a court file will be available through a background check. Some local jurisdictions will provide copies of mugshots on request.

• Juvenile – Some juvenile records may be accessible by state agencies, but typically will not be included in an official background check unless the individual was convicted of a crime as an adult.
What if the information is incorrect on a Utah background check?
Errors of information reported on official or unofficial background checks can be requested to be corrected through the Utah BCI.

Your firearms rights can be denied based upon certain convictions (especially domestic violence, felonies, and drug crimes), the existence of civil protection orders, and other incidents in your past. If you choose to ignore the firearms disability, you are risking criminal prosecution and up to ten years in prison. However, there are often legal processes in place to restore your lost gun rights. Please contact our lawyers if you have reason to believe that you are prohibited from possessing firearms, and are interested in regaining your Second Amendment rights.

You may be deemed to be under a federal firearm disability, and therefore barred from buying a firearm, if any of the following factors apply to you:
• Convictions in any court of a crime punishable by imprisonment for a term exceeding one year (Felonies)
• Fugitives from justice
• Unlawful users of or addicts to any controlled substances
• Those adjudicated as a mental defective or who have been committed to a mental institute
• One, being an alien, is illegally or unlawfully in the United States or have non-immigrant visas
• Dishonorable discharge from the Armed Forces
• One who has renounced their citizenship
• Subject to a protection order*
• Convicted of a misdemeanor crime of domestic violence

Protection orders include orders issued during court hearings. This includes agreed entries during a divorce or dissolution whereby an order is entered in the record for a party to refrain from harassing, stalking, or threatening, or other language that restrains one from conduct that would place an intimate partner or their child in reasonable fear of bodily harm. Any gun owner who has purchased a firearm from a licensed dealer is very familiar with the ATF form 4473 – the extensive background questionnaire that is required by federal law. Unfortunately, though the background check program is very good, it is not foolproof. If you have been improperly “denied,” or “delayed,” there are legal ways to find and correct errors in your NICS criminal record. Let us help you “clear your name” and resolve those problems.

There are many reasons why one’s criminal background check could have errors or omissions.

Correction of erroneous system information.

• An individual may request the reason for the denial from the agency that conducted the check of the NICS (the “denying agency,” which will be either the FBI or the state or local law enforcement agency serving as a POC). The FFL will provide to the denied individual the name and address of the denying agency and the unique transaction number (NTN or STN) associated with the NICS background check. The request for the reason for the denial must be made in writing to the denying agency. (POCs at their discretion may waive the requirement for a written request.)

• The denying agency will respond to the individual with the reasons for the denial within five business days of its receipt of the individual’s request. The response should indicate whether additional information or documents are required to support an appeal, such as fingerprints in appeals involving questions of identity (i.e., a claim that the record in question does not pertain to the individual who was denied).

• If the individual wishes to challenge the accuracy of the record upon which the denial is based, or if the individual wishes to assert that his or her rights to possess a firearm have been restored, he or she may make application first to the denying agency, i.e., either the FBI or the POC. If the denying agency is unable to resolve the appeal, the denying agency will so notify the individual and shall provide the name and address of the agency that originated the document containing the information upon which the denial was based. The individual may then apply for correction of the record directly to the agency from which it originated. If the record is corrected as a result of the appeal to the originating agency, the individual may so notify the denying agency, which will, in turn, verify the record correction with the originating agency (assuming the originating agency has not already notified the denying agency of the correction) and take all necessary steps to correct the record in the NICS.

• As an alternative to the above procedure where a POC was the denying agency, the individual may elect to direct his or her challenge to the accuracy of the record, in writing, to the FBI, NICS Operations Center, Criminal Justice Information Services Division, 1000 Custer Hollow Road, Module C-3, and Clarksburg, West Virginia 26306-0147. Upon receipt of the information, the FBI will investigate the matter by contacting the POC that denied the transaction or the data source. The FBI will request the POC or the data source to verify that the record in question pertains to the individual, who was denied, or to verify or correct the challenged record. The FBI will consider the information it receives from the individual and the response it receives from the POC or the data source. If the record is corrected as a result of the challenge, the FBI shall so notify the individual, correct the erroneous information in the NICS, and give notice of the error to any Federal department or agency or any state that was the source of such erroneous records.
• Upon receipt of notice of the correction of a contested record from the originating agency, the FBI or the agency that contributed the record shall correct the data in the NICS and the denying agency shall provide a written confirmation of the correction of the erroneous data to the individual for presentation to the FFL. If the appeal of a contested record is successful and thirty (30) days or less have transpired since the initial check, and there are no other disqualifying records upon which the denial was based, the NICS will communicate a “Proceed” response to the FFL. If the appeal is successful and more than thirty (30) days have transpired since the initial check, the FFL must recheck the NICS before allowing the sale to continue. In cases where multiple disqualifying records are the basis for the denial, the individual must pursue a correction for each record.

• An individual may also contest the accuracy or validity of a disqualifying record by bringing an action against the state or political subdivision responsible for providing the contested information, or responsible for denying the transfer, or against the United States, as the case may be, for an order directing that the contested information be corrected or that the firearm transfer be approved.
• An individual may provide written consent to the FBI to maintain information about himself or herself in a Voluntary Appeal File to be established by the FBI and checked by the NICS for the purpose of preventing the future erroneous denial or extended delay by the NICS of a firearm transfer. Such file shall be used only by the NICS for this purpose. The FBI shall remove all information in the Voluntary Appeal File pertaining to an individual upon receipt of a written request by that individual. However, the FBI may retain such information contained in the Voluntary Appeal File as long as needed to pursue cases of identified misuse of the system. If the FBI finds a disqualifying record on the individual after his or her entry into the Voluntary Appeal File, the FBI may remove the individual’s information from the file.