Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 165 First Substitute (2018GS)

Sponsor

Rep. Romero, A.

Final action

House/ filed 3/8/2018

Outcome

Failed / filed without passage

Summary

What it does

• This bill:
• addresses right to bail involving qualifying offenses;
• modifies terms related to jail release agreements and jail release court orders;
• addresses conditions for release after arrest for domestic violence and other offenses;
• amends provisions related to dismissal of certain offenses;
• addresses contents of pretrial protective orders;
• repeals language regarding privileged communications; and
• makes technical and conforming amendments.

Every vote on this bill

Bill text

PRETRIAL RELEASE AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Angela Romero
Senate Sponsor: 
Todd Weiler
LONG TITLE
General Description:
This bill modifies pretrial release provisions. 
Highlighted Provisions:
This bill:
▸ addresses right to bail involving qualifying offenses;
▸ modifies terms related to jail release agreements and jail release court orders;
▸ addresses conditions for release after arrest for domestic violence and other
offenses;
▸ amends provisions related to dismissal of certain offenses;
▸ addresses contents of pretrial protective orders;
▸ repeals language regarding privileged communications; and
▸ makes technical and conforming amendments. 
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
77-20-1
, as last amended by Laws of Utah 2017, Chapters 289, 311, and 332
77-20-3.5
, as renumbered and amended by Laws of Utah 2017, Chapter 289
77-36-1
, as last amended by Laws of Utah 2017, Chapters 289 and 332
77-36-2.7
, as last amended by Laws of Utah 2017, Chapter 289
Be it enacted by the Legislature of the state of Utah:
Section 1. 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[
.
]
; or
(e) domestic violence offense when the court finds that:
(i) there is substantial evidence to support the charge; and
(ii) by clear and convincing evidence, the person would constitute a substantial danger
to an alleged victim of domestic violence if released on bail.
(3) Any person who may be admitted to bail may be released by written undertaking or
an equal amount of cash bail, or on the person's own recognizance, 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 
court
order issued in accordance with Section 
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 [
77-20-3.5
(9) or (11)
] 
(2)
.
(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 2. Section 
77-20-3.5
 is amended to read:
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 as 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 
 is entered into by an arrested person 
:
[
(i) limits the contact an individual arrested for a qualifying offense may have with an
alleged victim; and
]
(i) under which the arrested person agrees to not :
(A) have personal contact with the alleged victim;
(B) threaten or harass the alleged victim; and
(C) knowingly enter on the premises of the alleged victim's residence or on premises
temporarily occupied by the alleged victim; and
(ii) 
that
 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
]
(i) orders an arrested person not to:
(A) have personal contact with the alleged victim;
(B) threaten or harass the alleged victim; and
(C) knowingly enter on the premises of the alleged victim's residence or on premises
temporarily occupied by the 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. 
(2) (a) Upon arrest for a qualifying offense and before the person is released on bail,
recognizance, or otherwise, the person may not personally contact the alleged victim.
(b) A person who violates Subsection (2)(a) is guilty of a class B misdemeanor.
(3) (a) After 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 person signs a jail release agreement [
in accordance with Subsection (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 (6)(a).
(c) 
(i)
 If the magistrate determines there is probable cause to support the charge or
charges of one or more qualifying offenses , the magistrate shall determine[
: (i)
] whether
[
grounds exist to hold
] the arrested person 
may be held
 without bail, in accordance with
Section 
77-20-1
[
;
]
.
(ii) [
if no grounds exist to hold
] 
 If the magistrate determines that 
 the arrested person
[
without
] 
 has the right to be admitted to
 bail, 
the magistrate shall determine:
(A)
 whether any release conditions, including electronic monitoring, are necessary to
protect the alleged victim; [
or
] 
and
[
(iii)
] 
(B)
 any bail that is required to guarantee the arrested person's subsequent
appearance in court.
(d) [
(i)
] The magistrate may not release a person arrested for a qualifying offense 
[
before the person's initial court appearance before the court with jurisdiction over the offense
for which the person was arrested, unless the arrested person agrees in writing or the magistrate
orders, as a release condition, that, until the arrested person appears at the initial court
appearance, the arrested person will not:
] 
 unless the magistrate issues a jail release court order
or the arrested person signs a jail release agreement. 
[
(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 (3)(d)(i) to
take place no more than 96 hours after the time of the arrest.
]
[
(iii) The arrested person may make the appearance described in Subsection (3)(d)(i) by
video if the arrested person is not released.
]
(4) (a) If a person charged with a qualifying offense fails to 
either schedule an initial
appearance or to
 appear at the time scheduled by the magistrate [
under Subsection (3)(d)
] 
not
more than 96 hours after the time of arrest
, the person shall comply with the release conditions
[
described in Subsection (3)(d)(i)
] 
of a jail release agreement or jail release court order
 until the
person makes an initial appearance.
(b) If the prosecutor has not filed charges against a person who was arrested for a
qualifying offense and who appears in court at the time scheduled by the magistrate under
Subsection (3)[
(d)
], or by the court under Subsection (4)(b)(ii), the court:
(i) may, upon the motion of the prosecutor and after allowing the person an opportunity
to be heard on the motion, extend the release conditions described in [
Subsection (3)(d)(i)
] 
the
jail release court order or the jail release agreement
 by no more than three court days; and
(ii) if the court grants the motion described in Subsection (4)(b)(i), shall order the
arrested person to appear at a time scheduled before the end of the granted extension.
(c) (i) If the prosecutor determines that there is insufficient evidence to file charges
before an initial appearance scheduled under Subsection (4)(a), the prosecutor shall transmit a
notice of declination to either the magistrate who signed a jail release court order or to the
statewide domestic violence network described in Section 
78B-7-113
 if a releasing agency
obtains a jail release agreement from a released arrestee.
(ii) A prosecutor's notice of declination transmitted under this Subsection (4)(c) is
considered a motion to dismiss a jail release court order and a notice of expiration of a jail
release agreement.
(5) Except as provided in Subsection (4) or otherwise ordered by a court, a jail release
agreement or jail release court order expires at midnight after 
the sooner of:
(a)
 the arrested person's initial scheduled court appearance described in Subsection
[
(3)(d)(i).
] 
(4)(a);
(b) the declination is submitted under Subsection (4)(c); or
(c) 30 days from the day on which the arrested person is arrested.
(6) (a) 
(i)
 After an arrest for a qualifying offense , an alleged victim who is not a minor
may waive in writing the release conditions [
described in Subsection (3)(d)(i)(A) or (C).
]
prohibiting:
(A) personal contact with the alleged victim; or
(B) knowingly entering on the premises of the alleged victim's residence or on
premises temporarily occupied by the alleged victim.
(ii)
 Upon waiver, [
those
] 
the
 release conditions 
described in Subsection (6)(a)(i)
 do not
apply to the arrested person.
(b) A court or magistrate may modify [
the release conditions described in Subsection
(3)(d)(i),
] 
a jail release agreement or a jail release court order
 in writing or on the record, and
only for good cause shown.
(7) (a) When an arrested person is released 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;
(ii) make a reasonable effort to notify the alleged victim of the release; and
(iii) before releasing the arrested person, give the arrested person 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 (3)
] 
this section
 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
(3) through (5)
] 
this section
 based upon a jail release court order or if a [
written
] jail release
agreement is modified pursuant to Subsection (6)(b), the court shall transmit that order to the
statewide domestic violence network described in Section 
78B-7-113
.
(c) This Subsection (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.
(8) (a) If a law enforcement officer has probable cause to believe that a person has
violated a jail release agreement or jail release court order, the officer shall, without a warrant,
arrest the person.
(b) Any person who knowingly violates a jail release court order or jail release
agreement executed pursuant to Subsection (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
] 
A city attorney
 may prosecute class A misdemeanor violations
under this section.
(9) A person who is arrested for a qualifying offense that is a felony and released in
accordance with this section may subsequently be held without bail if there is substantial
evidence to support a new felony charge against the person.
(10) At the time an arrest is made for a qualifying offense , the arresting officer shall
provide the alleged victim with written notice containing:
(a) the release conditions described in [
Subsections (3) through (5)
] 
this section
, 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
] 
jail release
 agreement to comply with
the release conditions; or
(ii) the magistrate [
orders
] 
issues a jail release order that specifies
 the release
conditions;
(b) notification of the penalties for violation of any jail release agreement or jail release
court order;
[
(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)
] 
(c)
 the address of the appropriate court in the district or county in which the
alleged victim resides;
[
(e)
] 
(d)
 the availability and effect of any waiver of the release conditions; and
[
(f)
] 
(e)
 information regarding the availability of and procedures for obtaining civil and
criminal protective orders with or without the assistance of an attorney.
(11) At the time an arrest is made for 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 (3) through (5)
] 
this section
 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
] 
jail release
 agreement to comply with
the release conditions; or
(ii) the magistrate [
orders the release conditions
] 
issues a jail release court order
;
(c) notification of the penalties for violation of any jail release agreement or jail release
court order; 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.
[
(13) In addition to the provisions of Subsections (3) through (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
]
(13) This section does
 not apply if the person arrested for the qualifying offense is a
minor, unless the qualifying offense is domestic violence. 
Section 3. 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 the same as that term is defined in Section
77-20-3.5.
(6) "Jail release court order" means the same as that term is defined in Section
77-20-3.5
.
(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) "Protective order" includes an order issued under Subsection 
77-36-5.1
(6).
(11) "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
] 
Section
77-20-3.5
[
(3)
], Subsection 
77-36-2.6
(3), or Section 
77-36-2.7
, pending trial in the criminal
case.
(12) "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
.
(13) "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.
(14) "Victim" means a cohabitant who has been subjected to domestic violence.
Section 4. 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; 
and
[
(e) may dismiss a charge on stipulation of the prosecutor and the victim; and
]
[
(f)
] 
(e)
 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 
and the vulnerability of victims of other qualifying
offenses as defined in Section 
77-20-3.5
, when any defendant is charged with a crime involving
[
domestic violence
] 
a qualifying offense
, 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) If the court is unable to locate the victim, the court shall provide the victim's
certified copy to the prosecutor.
[
(ii)
] 
(iii)
 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 jail release
agreement or jail release court order.
(e) If the alleged victim and the defendant share custody of one or more minor children,
the court may include in a pretrial protective order provisions for indirect or limited contact to
temporarily facilitate parent visitation with a minor child.
(f) In a pretrial protective order the court shall determine whether to allow provisions
for transfer of personal property to decrease the need for contact between the parties.
(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 
any related order or agreement
on
 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)
] 
(5)
 The court may not approve diversion for a perpetrator of domestic violence.
Legislative Review Note
Office of Legislative Research and General Counsel