Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 208 First Substitute (2017GS)

Sponsor

Rep. Ivory, K.

Final action

Governor Signed 3/23/2017

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• defines terms;
• modifies the conditions under which an arresting law enforcement agency may release an individual arrested for certain offenses against a child or vulnerable adult or sexual assault; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

JAIL RELEASE ORDERS AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Ken Ivory
Senate Sponsor: 
____________
LONG TITLE
General Description:
This bill modifies provisions related to jail release agreements and jail release court
orders. 
Highlighted Provisions:
This bill:
▸ defines terms;
▸ modifies the conditions under which an arresting law enforcement agency may
release an individual arrested for certain offenses against a child or vulnerable adult
or sexual assault; and
▸ makes technical and conforming changes. 
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
53-10-403
, as last amended by Laws of Utah 2015, Chapter 386
77-20-1
, as last amended by Laws of Utah 2016, Chapter 234
77-36-1
, as last amended by Laws of Utah 2016, Chapter 422
77-36-2.1
, as last amended by Laws of Utah 2011, Chapter 113
77-36-2.4
, as last amended by Laws of Utah 2010, Chapter 384
77-36-2.7
, as last amended by Laws of Utah 2010, Chapter 384
77-36-6
, as last amended by Laws of Utah 2010, Chapter 384
RENUMBERS AND AMENDS:
77-20-3.5
, (Renumbered from 77-36-2.5, as last amended by Laws of Utah 2016,
Chapter 422)
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
53-10-403
 is amended to read:
53-10-403.
DNA specimen analysis -- Application to offenders, including minors.
(1) Sections 
53-10-404
, 
53-10-404.5
, 
53-10-405
, and 
53-10-406
 apply to any person
who:
(a) has pled guilty to or has been convicted of any of the offenses under Subsection
(2)(a) or (b) on or after July 1, 2002;
(b) has pled guilty to or has been convicted by any other state or by the United States
government of an offense which if committed in this state would be punishable as one or more
of the offenses listed in Subsection (2)(a) or (b) on or after July 1, 2003;
(c) has been booked on or after January 1, 2011, through December 31, 2014, for any
offense under Subsection (2)(c);
(d) has been booked:
(i) by a law enforcement agency that is obtaining a DNA specimen on or after May 13,
2014, through December 31, 2014, under Subsection 
53-10-404
(4)(b) for any felony offense; or
(ii) on or after January 1, 2015, for any felony offense; or
(e) is a minor under Subsection (3).
(2) Offenses referred to in Subsection (1) are:
(a) any felony or class A misdemeanor under the Utah Code;
(b) any offense under Subsection (2)(a):
(i) for which the court enters a judgment for conviction to a lower degree of offense
under Section 
76-3-402
; or
(ii) regarding which the court allows the defendant to enter a plea in abeyance as
defined in Section 
77-2a-1
; or
(c) (i) any violent felony as defined in Section 
53-10-403.5
;
(ii) sale or use of body parts, Section 
26-28-116
;
(iii) failure to stop at an accident that resulted in death, Section 
41-6a-401.5
;
(iv) driving with any amount of a controlled substance in a person's body and causing
serious bodily injury or death, Subsection 
58-37-8
(2)(g);
(v) a felony violation of enticing a minor over the Internet, Section 
76-4-401
;
(vi) a felony violation of propelling a substance or object at a correctional officer, a
peace officer, or an employee or a volunteer, including health care providers, Section
76-5-102.6
;
(vii) aggravated human trafficking and aggravated human smuggling, Section
76-5-310
;
(viii) a felony violation of unlawful sexual activity with a minor, Section 
76-5-401
;
(ix) a felony violation of sexual abuse of a minor, Section 
76-5-401.1
;
(x) unlawful sexual contact with a 16 or 17-year old, Section 
76-5-401.2
;
(xi) sale of a child, Section 
76-7-203
;
(xii) aggravated escape, Subsection 
76-8-309
(2);
(xiii) a felony violation of assault on an elected official, Section 
76-8-315
;
(xiv) influencing, impeding, or retaliating against a judge or member of the Board of
Pardons and Parole, Section 
76-8-316
;
(xv) advocating criminal syndicalism or sabotage, Section 
76-8-902
;
(xvi) assembly for advocating criminal syndicalism or sabotage, Section 
76-8-903
;
(xvii) a felony violation of sexual battery, Section 
76-9-702.1
;
(xviii) a felony violation of lewdness involving a child, Section 
76-9-702.5
;
(xix) a felony violation of abuse or desecration of a dead human body, Section
76-9-704
;
(xx) manufacture, possession, sale, or use of a weapon of mass destruction, Section
76-10-402
;
(xxi) manufacture, possession, sale, or use of a hoax weapon of mass destruction,
Section 
76-10-403
;
(xxii) possession of a concealed firearm in the commission of a violent felony,
Subsection 
76-10-504
(4);
(xxiii) assault with the intent to commit bus hijacking with a dangerous weapon,
Subsection 
76-10-1504
(3);
(xxiv) commercial obstruction, Subsection 
76-10-2402
(2);
(xxv) a felony violation of failure to register as a sex or kidnap offender, Section
77-41-107
;
(xxvi) repeat violation of a protective order, Subsection 
77-36-1.1
(2)(c); or
(xxvii) violation of condition for release after arrest [
for domestic violence, Section
77-36-2.5
] 
under Section 77-20-3.5
 .
(3) A minor under Subsection (1) is a minor 14 years of age or older whom a Utah
court has adjudicated to be within the jurisdiction of the juvenile court due to the commission
of any offense described in Subsection (2), and who is:
(a) within the jurisdiction of the juvenile court on or after July 1, 2002 for an offense
under Subsection (2); or
(b) in the legal custody of the Division of Juvenile Justice Services on or after July 1,
2002 for an offense under Subsection (2).
Section 2. Section 
77-20-1
 is amended to read:
77-20-1.
Right to bail -- Denial of bail -- Hearing.
(1) As used in this chapter:
(a) "Bail bond agency" means the same as that term is defined in Section 
31A-35-102
.
(b) "Surety" and "sureties" mean a surety insurer or a bail bond agency.
(c) "Surety insurer" means the same as that term is defined in Section 
31A-35-102
.
(2) A person charged with or arrested for a criminal offense shall be admitted to bail as
a matter of right, except if the person is charged with a:
(a) capital felony, when the court finds there is substantial evidence to support the
charge;
(b) felony committed while on probation or parole, or while free on bail awaiting trial
on a previous felony charge, when the court finds there is substantial evidence to support the
current felony charge;
(c) felony when there is substantial evidence to support the charge and the court finds
by clear and convincing evidence that the person would constitute a substantial danger to any
other person or to the community, or is likely to flee the jurisdiction of the court, if released on
bail; or
(d) felony when the court finds there is substantial evidence to support the charge and
it finds by clear and convincing evidence that the person violated a material condition of
release while previously on bail.
(3) Any person who may be admitted to bail may be released either on the person's own
recognizance or upon posting bail, on condition that the person appear in court for future court
proceedings in the case, and on any other conditions imposed in the discretion of the magistrate
or court that will reasonably:
(a) ensure the appearance of the accused;
(b) ensure the integrity of the court process;
(c) prevent direct or indirect contact with witnesses or victims by the accused, if
appropriate; and
(d) ensure the safety of the public.
(4) (a) Except as otherwise provided, the initial order denying or fixing the amount of
bail shall be issued by the magistrate or court issuing the warrant of arrest.
(b) A magistrate may set bail upon determining that there was probable cause for a
warrantless arrest.
(c) A bail commissioner may set bail in a misdemeanor case in accordance with
Sections 
10-3-920
 and 
17-32-1
.
(d) A person arrested for a violation of a jail release agreement or jail release order
issued [
pursuant to
] 
in accordance with
 Section [
77-36-2.5
] 
77-20-3.5
:
(i) may not be released before the accused's first judicial appearance; and
(ii) may be denied bail by the court under Subsection [
77-36-2.5
(8)
] 
77-20-3.5
(9)
 or
(12).
(5) The magistrate or court may rely upon information contained in:
(a) the indictment or information;
(b) any sworn probable cause statement;
(c) information provided by any pretrial services agency; or
(d) any other reliable record or source.
(6) (a) A motion to modify the initial order may be made by a party at any time upon
notice to the opposing party sufficient to permit the opposing party to prepare for hearing and
to permit any victim to be notified and be present.
(b) Hearing on a motion to modify may be held in conjunction with a preliminary
hearing or any other pretrial hearing.
(c) The magistrate or court may rely on information as provided in Subsection (5) and
may base its ruling on evidence provided at the hearing so long as each party is provided an
opportunity to present additional evidence or information relevant to bail.
(7) Subsequent motions to modify bail orders may be made only upon a showing that
there has been a material change in circumstances.
(8) An appeal may be taken from an order of any court denying bail to the Supreme
Court, which shall review the determination under Subsection (2).
(9) For purposes of this section, any arrest or charge for a violation of Section
76-5-202
, Aggravated murder, is a capital felony unless:
(a) the prosecutor files a notice of intent to not seek the death penalty; or
(b) the time for filing a notice to seek the death penalty has expired and the prosecutor
has not filed a notice to seek the death penalty.
Section 3. Section 
77-20-3.5
, which is renumbered from Section 77-36-2.5 is
renumbered and amended to read:
[
77-36-2.5
].
 77-20-3.5.
Conditions for release after arrest for domestic violence
and other offenses -- Jail release agreements -- Jail release court orders.
(1) As used in this section:
(a) "Domestic violence" means the same s a that term is defined in Section 
77-36-1
.
(b) "Jail release agreement" means a written agreement described in Subsection
77-20-3.5
(3) that:
(i) limits the contact an individual arrested for a qualifying offense may have with an
alleged victim; and
(ii) specifies other conditions of release from jail.
(c) "Jail release court order" means a written court order issued in accordance with
Subsection 
77-20-3.5
(3) that:
(i) limits the contact an individual arrested for a qualifying offense may have with an
alleged victim; and
(ii) specifies other conditions of release from jail.
(d) "Minor" means an unemancipated individual who is younger than 18 years of age.
(e) "Offense against a child or vulnerable adult" means the commission or attempted
commission of an offense described in Section 
76-5-109
, 
76-5-109.1
, 
76-5-110
, or 
76-5-111
.
(f) "Qualifying offense" means:
(i) domestic violence;
(ii) an offense against a child or vulnerable adult; or
(iii) the commission or attempted commission of an offense described in Title 76,
Chapter 5, Part 4, Sexual Offenses.
[
(1)
] 
(2)
 (a) Upon arrest for [
domestic violence,
] 
a qualifying offense
 and before the
person is released on bail, recognizance, or otherwise, the person may not personally contact
the alleged victim [
of domestic violence
].
(b) A person who violates Subsection [
(1)
] 
(2)
(a) is guilty of a class B misdemeanor.
[
(2)
] 
(3)
 (a) After [
an arrest for domestic violence, the offender
] 
a person is arrested for
a qualifying offense, the person
 may not be released before:
(i) the matter is submitted to a magistrate in accordance with Section 
77-7-23
; or
(ii) the [
offender
] 
person
 signs a jail release agreement in accordance with Subsection
[
(2)
] 
(3)
(d)(i).
(b) The arresting officer shall ensure that the information presented to the magistrate
includes whether the 
alleged
 victim has made a waiver described in Subsection [
(5)
] 
(6)
(a).
(c) If the magistrate determines there is probable cause to support the charge or charges
of [
domestic violence
] 
one or more qualifying offenses
 , the magistrate shall determine:
(i) whether grounds exist to hold the [
arrested person
] 
defendant
 without bail, in
accordance with Section 
77-20-1
;
(ii) if no grounds exist to hold the [
arrested person
] 
defendant
 without bail, whether
any release conditions, including electronic monitoring, are necessary to protect the 
alleged
victim; or
(iii) any bail that is required to guarantee the defendant's subsequent appearance in
court.
(d) (i) The magistrate may not release a [
person
] 
defendant
 arrested for [
domestic
violence
] 
a qualifying offense
 before the 
defendant's
 initial court appearance[
,
] before the court
with jurisdiction over the offense for which the [
person
] 
defendant
 was arrested, unless the
[
arrested person
] 
defendant
 agrees in writing or the magistrate orders, as a release condition,
that, until the [
arrested person
] 
defendant
 appears at the initial court appearance, the [
person
]
defendant
 will not:
(A) have personal contact with the alleged victim;
(B) threaten or harass the alleged victim; or
(C) knowingly enter onto the premises of the alleged victim's residence or any premises
temporarily occupied by the alleged victim.
(ii) The magistrate shall schedule the appearance described in Subsection [
(2)
] 
(3)
(d)(i)
to take place no more than 96 hours after the time of the arrest.
(iii) The [
arrested person
] 
defendant
 may make the appearance described in Subsection
[
(2)
] 
(3)
(d)(i) by video if the [
arrested person
] 
defendant
 is not released.
[
(3)
] 
(4)
 (a) If a [
person
] 
defendant
 charged with [
domestic violence
] 
a qualifying
offense
 fails to appear at the time scheduled by the magistrate to appear[
, as described in
] 
under
Subsection [
(2)
] 
(3)
(d), the [
person
] 
defendant
 shall comply with the release conditions
described in Subsection [
(2)
] 
(3)
(d)(i) until the [
arrested person
] 
defendant
 makes an initial
appearance.
(b) If the prosecutor has not filed charges against a person who was arrested for a
[
domestic violence
] 
qualifying
 offense and who appears in court at the time scheduled by the
magistrate under Subsection [
(2)
] 
(3)
(d), or by the court under Subsection [
(3)
] 
(4)
(b)(ii), the
court:
(i) may, upon the motion of the prosecutor and after allowing the [
arrested
] person an
opportunity to be heard on the motion, extend the release conditions described in Subsection
[
(2)
] 
(3)
(d)(i) by no more than three court days; and
(ii) if the court grants the motion described in Subsection [
(3)
] 
(4)
(b)(i), shall order the
arrested person to appear at a time scheduled before the end of the granted extension.
[
(4) Unless extended under
]
(5) Except as provided in
 Subsection [
(3), the
] 
(4) or otherwise ordered by a court, a
jail release agreement or [
the magistrate order described in Subsection (2)(d)(i)
] 
jail release
court order
 expires at midnight [
on the day on which the person arrested is scheduled to appear,
as
] 
after the defendant's initial court appearance
 described in Subsection [
(2)
] 
(3)
(d)
(i)
.
[
(5) (a) Subsequent to
]
(6) (a) After
 an arrest for [
domestic violence
] 
a qualifying offense
 , an alleged victim
who is not a minor
 may waive in writing the release conditions described in Subsection [
(2)
]
(3)
(d)(i)(A) or (C). Upon waiver, those release conditions do not apply to the [
alleged
perpetrator
] 
defendant
.
(b) A court or magistrate may modify the release conditions described in Subsection
[
(2)
] 
(3)
(d)(i), in writing or on the record, and only for good cause shown.
[
(6)
] 
(7)
 (a) When a [
person
] 
defendant
 is released [
pursuant to Subsection (2)
] 
in
accordance with Subsection (3)
, the releasing agency shall
:
(i)
 notify the arresting law enforcement agency of the release, conditions of release, and
any available information concerning the location of the 
alleged
 victim[
. The arresting law
enforcement agency shall then
]
;
(ii)
 make a reasonable effort to notify the 
alleged
 victim of [
that
] 
the
 release[
.
]
; and
(iii) before releasing the defendant, give the defendant a copy of the jail release
agreement or the jail release court order.
(b) (i) When a person 
arrested for domestic violence
 is released pursuant to Subsection
[
(2)
] 
(3)
 based on a written jail release agreement, the releasing agency shall transmit that
information to the statewide domestic violence network described in Section 
78B-7-113
.
(ii) When a person 
arrested for domestic violence
 is released pursuant to Subsections
[
(2)
] 
(3)
 through [
(4)
] 
(5)
 based upon a jail release court order or if a written jail release
agreement is modified pursuant to Subsection [
(5)
] 
(6)
(b), the court shall transmit that order to
the statewide domestic violence network described in Section 
78B-7-113
.
[
(iii) A copy of the jail release court order or written jail release agreement shall be
given to the person by the releasing agency before the person is released.
]
(c) This Subsection [
(6)
] 
(7)
 does not create or increase liability of a law enforcement
officer or agency, and the good faith immunity provided by Section 
77-36-8
 is applicable.
[
(7)
] 
(8)
 (a) If a law enforcement officer has probable cause to believe that a [
person
]
defendant
 has violated a 
jail release agreement or
 jail release court order [
or jail release
agreement executed pursuant to Subsection (2)
]
,
 the officer shall, without a warrant, arrest the
[
alleged violator
] 
defendant
.
(b) Any person who knowingly violates a jail release court order or jail release
agreement executed pursuant to Subsection [
(2)
] 
(3)
 is guilty as follows:
(i) if the original arrest was for a felony, an offense under this section is a third degree
felony; or
(ii) if the original arrest was for a misdemeanor, an offense under this section is a class
A misdemeanor.
(c) City attorneys may prosecute class A misdemeanor violations under this section.
[
(8) An individual who was originally
]
(9) A defendant who is 
 arrested for a 
qualifying offense that is a
 felony [
under this
chapter
] and released [
pursuant to
] 
in accordance with
 this section may subsequently be held
without bail if there is substantial evidence to support a new felony charge against [
him
] 
the
defendant
.
[
(9)
] 
(10)
 At the time an arrest is made for [
domestic violence
] 
a qualifying offense
 , the
arresting officer shall provide the alleged victim with written notice containing:
(a) the release conditions described in Subsections [
(2)
] 
(3)
 through [
(4)
] 
(5)
, and
notice that the alleged perpetrator will not be released, before appearing before the court with
jurisdiction over the offense for which the alleged perpetrator was arrested, unless:
(i) the alleged perpetrator enters into a written agreement to comply with the release
conditions; or
(ii) the magistrate orders the release conditions;
(b) notification of the penalties for violation of any 
jail release agreement or
 jail release
court order [
or any jail release agreement executed under Subsection (2)
];
(c) notification that the alleged perpetrator is to personally appear in court on the next
day the court is open for business after the day of the arrest;
(d) the address of the appropriate court in the district or county in which the alleged
victim resides;
(e) the availability and effect of any waiver of the release conditions; and
(f) information regarding the availability of and procedures for obtaining civil and
criminal protective orders with or without the assistance of an attorney.
[
(10)
] 
(11)
 At the time an arrest is made for [
domestic violence
] 
a qualifying offense
 ,
the arresting officer shall provide the alleged perpetrator with written notice containing:
(a) notification that the alleged perpetrator may not contact the alleged victim before
being released;
(b) the release conditions described in Subsections [
(2)
] 
(3)
 through [
(4)
] 
(5)
 and notice
that the alleged perpetrator will not be released, before appearing before the court with
jurisdiction over the offense for which the alleged perpetrator was arrested, unless:
(i) the alleged perpetrator enters into a written agreement to comply with the release
conditions; or
(ii) the magistrate orders the release conditions;
(c) notification of the penalties for violation of any 
jail release agreement or
 jail release
court order [
or any written jail release agreement executed under Subsection (2)
]; and
(d) notification that the alleged perpetrator is to personally appear in court on the next
day the court is open for business after the day of the arrest.
(12) (a) A pretrial or sentencing protective order supercedes a jail release agreement or
jail release court order.
(b) If a court dismisses the charges for the qualifying offense that gave rise to a jail
release agreement or jail release court order, the court shall dismiss the jail release agreement
or jail release court order.
[
(11)
] 
(13)
 In addition to the provisions of Subsections [
(2)
] 
(3)
 through [
(10)
] 
(12)
,
because of the unique and highly emotional nature of domestic violence crimes, the high
recidivism rate of violent offenders, and the demonstrated increased risk of continued acts of
violence subsequent to the release of an offender who has been arrested for domestic violence,
it is the finding of the Legislature that domestic violence crimes, as defined in Section 
77-36-1
,
are crimes for which bail may be denied if there is substantial evidence to support the charge,
and if the court finds by clear and convincing evidence that the alleged perpetrator would
constitute a substantial danger to an alleged victim of domestic violence if released on bail.
(14) The provisions of this section do not apply if the person arrested for the qualifying
offense is a minor, unless the qualifying offense is domestic violence.
Section 4. Section 
77-36-1
 is amended to read:
77-36-1.
Definitions.
As used in this chapter:
(1) "Cohabitant" means the same as that term is defined in Section 
78B-7-102
.
(2) "Department" means the Department of Public Safety.
(3) "Divorced" means an individual who has obtained a divorce under Title 30, Chapter
3, Divorce.
(4) "Domestic violence" or "domestic violence offense" means any criminal offense
involving violence or physical harm or threat of violence or physical harm, or any attempt,
conspiracy, or solicitation to commit a criminal offense involving violence or physical harm,
when committed by one cohabitant against another. "Domestic violence" or "domestic
violence offense" also means commission or attempt to commit, any of the following offenses
by one cohabitant against another:
(a) aggravated assault, as described in Section 
76-5-103
;
(b) assault, as described in Section 
76-5-102
;
(c) criminal homicide, as described in Section 
76-5-201
;
(d) harassment, as described in Section 
76-5-106
;
(e) electronic communication harassment, as described in Section 
76-9-201
;
(f) kidnapping, child kidnapping, or aggravated kidnapping, as described in Sections
76-5-301
, 
76-5-301.1
, and 
76-5-302
;
(g) mayhem, as described in Section 
76-5-105
;
(h) sexual offenses, as described in Title 76, Chapter 5, Part 4, Sexual Offenses, and
Section 
76-5b-201
, Sexual exploitation of a minor 
-- Offenses
;
(i) stalking, as described in Section 
76-5-106.5
;
(j) unlawful detention or unlawful detention of a minor, as described in Section
76-5-304
;
(k) violation of a protective order or ex parte protective order, as described in Section
76-5-108
;
(l) any offense against property described in Title 76, Chapter 6, Part 1, Property
Destruction, Title 76, Chapter 6, Part 2, Burglary and Criminal Trespass, or Title 76, Chapter 6,
Part 3, Robbery;
(m) possession of a deadly weapon with intent to assault, as described in Section
76-10-507
;
(n) discharge of a firearm from a vehicle, near a highway, or in the direction of any
person, building, or vehicle, as described in Section 
76-10-508
;
(o) disorderly conduct, as defined in Section 
76-9-102
, if a conviction of disorderly
conduct is the result of a plea agreement in which the defendant was originally charged with a
domestic violence offense otherwise described in this Subsection (4). Conviction of disorderly
conduct as a domestic violence offense, in the manner described in this Subsection (4)(o), does
not constitute a misdemeanor crime of domestic violence under 18 U.S.C. Sec. 921, and is
exempt from the provisions of the federal Firearms Act, 18 U.S.C. Sec. 921 et seq.; or
(p) child abuse as described in Section 
76-5-109.1
.
(5) "Jail release agreement" means [
a written agreement:
] 
the same as that term is
defined in Section 
77-20-3.5.
[
(a) specifying and limiting the contact a person arrested for a domestic violence
offense may have with an alleged victim or other specified individuals; and
]
[
(b) specifying other conditions of release from jail as required in Subsection
77-36-2.5
(2).
]
(6) "Jail release court order" means [
a written court order:
] 
the same as that term is
defined in Section 
77-20-3.5
.
[
(a) specifying and limiting the contact a person arrested for a domestic violence
offense may have with an alleged victim or other specified individuals; and
]
[
(b) specifying other conditions of release from jail as required in Subsection
77-36-2.5
(2).
]
(7) "Marital status" means married and living together, divorced, separated, or not
married.
(8) "Married and living together" means a man and a woman whose marriage was
solemnized under Section 
30-1-4
 or 
30-1-6
 and who are living in the same residence.
(9) "Not married" means any living arrangement other than married and living together,
divorced, or separated.
(10) "Pretrial protective order" means a written order:
(a) specifying and limiting the contact a person who has been charged with a domestic
violence offense may have with an alleged victim or other specified individuals; and
(b) specifying other conditions of release pursuant to Subsection [
77-36-2.5
(2)
]
77-20-3.5
(3)
, Subsection 
77-36-2.6
(3), or Section 
77-36-2.7
, pending trial in the criminal case.
(11) "Sentencing protective order" means a written order of the court as part of
sentencing in a domestic violence case that limits the contact a person who has been convicted
of a domestic violence offense may have with a victim or other specified individuals pursuant
to Sections 
77-36-5
 and 
77-36-5.1
.
(12) "Separated" means a man and a woman who have had their marriage solemnized
under Section 
30-1-4
 or 
30-1-6
 and who are not living in the same residence.
(13) "Victim" means a cohabitant who has been subjected to domestic violence.
Section 5. Section 
77-36-2.1
 is amended to read:
77-36-2.1.
Duties of law enforcement officers -- Notice to victims.
(1) A law enforcement officer who responds to an allegation of domestic violence shall
use all reasonable means to protect the victim and prevent further violence, including:
(a) taking the action that, in the officer's discretion, is reasonably necessary to provide
for the safety of the victim and any family or household member;
(b) confiscating the weapon or weapons involved in the alleged domestic violence;
(c) making arrangements for the victim and any child to obtain emergency housing or
shelter;
(d) providing protection while the victim removes essential personal effects;
(e) arrange, facilitate, or provide for the victim and any child to obtain medical
treatment; and
(f) arrange, facilitate, or provide the victim with immediate and adequate notice of the
rights of victims and of the remedies and services available to victims of domestic violence, in
accordance with Subsection (2).
(2) (a) A law enforcement officer shall give written notice to the victim in simple
language, describing the rights and remedies available under this chapter, Title 78B, Chapter 7,
Part 1, Cohabitant Abuse Act, and Title 78B, Chapter 7, Part 2, Child Protective Orders.
(b) The written notice shall also include:
(i) a statement that the forms needed in order to obtain an order for protection are
available from the court clerk's office in the judicial district where the victim resides or is
temporarily domiciled;
(ii) a list of shelters, services, and resources available in the appropriate community,
together with telephone numbers, to assist the victim in accessing any needed assistance; and
(iii) the information required to be provided to both parties in accordance with
[
Subsection 
77-36-2.5
(8)
] 
Subsections 
77-20-3.5
(10) and (11)
 .
Section 6. Section 
77-36-2.4
 is amended to read:
77-36-2.4.
Violation of protective orders -- Mandatory arrest -- Penalties.
(1) A law enforcement officer shall, without a warrant, arrest an alleged perpetrator
whenever there is probable cause to believe that the alleged perpetrator has violated any of the
provisions of an ex parte protective order or protective order.
(2) (a) Intentional or knowing violation of any ex parte protective order or protective
order is a class A misdemeanor, in accordance with Section 
76-5-108
, except where a greater
penalty is provided in this chapter, and is a domestic violence offense, pursuant to Section
77-36-1
.
(b) Second or subsequent violations of ex parte protective orders or protective orders
carry increased penalties, in accordance with Section 
77-36-1.1
.
(3) As used in this section, "ex parte protective order" or "protective order" includes:
(a) any protective order or ex parte protective order issued under Title 78B, Chapter 7,
Part 1, Cohabitant Abuse Act;
(b) any [
jail release agreement, jail release court order,
] pretrial protective order[
,
] or
sentencing protective order issued under Title 77, Chapter 36, Cohabitant Abuse Procedures
Act;
(c) any child protective order or ex parte child protective order issued under Title 78B,
Chapter 7, Part 2, Child Protective Orders; or
(d) a foreign protection order enforceable under Title 78B, Chapter 7, Part 3, Uniform
Interstate Enforcement of Domestic Violence Protection Orders Act.
Section 7. Section 
77-36-2.7
 is amended to read:
77-36-2.7.
Dismissal -- Diversion prohibited -- Plea in abeyance -- Pretrial
protective order pending trial.
(1) Because of the serious nature of domestic violence, the court, in domestic violence
actions:
(a) may not dismiss any charge or delay disposition because of concurrent divorce or
other civil proceedings;
(b) may not require proof that either party is seeking a dissolution of marriage before
instigation of criminal proceedings;
(c) shall waive any requirement that the victim's location be disclosed other than to the
defendant's attorney and order the defendant's attorney not to disclose the victim's location to
the client;
(d) shall identify, on the docket sheets, the criminal actions arising from acts of
domestic violence;
(e) may dismiss a charge on stipulation of the prosecutor and the victim; and
(f) may hold a plea in abeyance, in accordance with the provisions of Chapter 2a, Pleas
in Abeyance, making treatment or any other requirement for the defendant a condition of that
status.
(2) When the court holds a plea in abeyance in accordance with Subsection (1)(f), the
case against a perpetrator of domestic violence may be dismissed only if the perpetrator
successfully completes all conditions imposed by the court. If the defendant fails to complete
any condition imposed by the court under Subsection (1)(f), the court may accept the
defendant's plea.
(3) (a) Because of the likelihood of repeated violence directed at those who have been
victims of domestic violence in the past, when any defendant is charged with a crime involving
domestic violence, the court may, during any court hearing where the defendant is present,
issue a pretrial protective order, pending trial:
(i) enjoining the defendant from threatening to commit or committing acts of domestic
violence or abuse against the victim and any designated family or household member;
(ii) prohibiting the defendant from harassing, telephoning, contacting, or otherwise
communicating with the victim, directly or indirectly;
(iii) removing and excluding the defendant from the victim's residence and the
premises of the residence;
(iv) ordering the defendant to stay away from the residence, school, place of
employment of the victim, and the premises of any of these, or any specified place frequented
by the victim and any designated family member; and
(v) ordering any other relief that the court considers necessary to protect and provide
for the safety of the victim and any designated family or household member.
(b) Violation of an order issued pursuant to this section is punishable as follows:
(i) if the original arrest or subsequent charge filed is a felony, an offense under this
section is a third degree felony; and
(ii) if the original arrest or subsequent charge filed is a misdemeanor, an offense under
this section is a class A misdemeanor.
(c) (i) The court shall provide the victim with a certified copy of any pretrial protective
order that has been issued if the victim can be located with reasonable effort.
(ii) The court shall also transmit the pretrial protective order to the statewide domestic
violence network.
(d) Issuance of a pretrial or sentencing protective order supercedes a [
written
] jail
release agreement or [
a written
] jail release court order [
issued by the court at the time of
arrest
].
(4) (a) When a court dismisses criminal charges or a prosecutor moves to dismiss
charges against a defendant accused of a domestic violence offense, the specific reasons for
dismissal shall be recorded in the court file and made a part of the statewide domestic violence
network described in Section 
78B-7-113
.
(b) The court shall transmit the dismissal to the statewide domestic violence network.
(c) Any pretrial protective orders, including jail release court orders and jail release
agreements, related to the dismissed domestic violence criminal charge shall also be dismissed.
(5) When the privilege of confidential communication between spouses, or the
testimonial privilege of spouses is invoked in any criminal proceeding in which a spouse is the
victim of an alleged domestic violence offense, the victim shall be considered to be an
unavailable witness under the Utah Rules of Evidence.
(6) The court may not approve diversion for a perpetrator of domestic violence.
Section 8. Section 
77-36-6
 is amended to read:
77-36-6.
Enforcement of orders.
(1) Each law enforcement agency in this state shall enforce all orders of the court
issued pursuant to the requirements and procedures described in this chapter, and shall enforce:
(a) all protective orders and ex parte protective orders issued pursuant to Title 78B,
Chapter 7, Part 1, Cohabitant Abuse Act;
(b) [
jail release agreements, jail release court orders,
] pretrial protective orders[
,
] and
sentencing protective orders; and
(c) all foreign protection orders enforceable under Title 78B, Chapter 7, Part 3,
Uniform Interstate Enforcement of Domestic Violence Protection Orders Act.
(2) The requirements of this section apply statewide, regardless of the jurisdiction in
which the order was issued or the location of the victim or the perpetrator.
Legislative Review Note
Office of Legislative Research and General Counsel