Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 257 First Substitute (2022GS)

Sponsor

Rep. Christofferson, K.

Final action

Governor Signed 3/24/2022

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• modifies provisions related to a public prosecutor's pretrial duties;
• modifies provisions related to when a public prosecutor may dismiss a case;
• modifies provisions related to when a public prosecutor may charge an individual with a classification of the offense at one degree lower than the classification that is provided in statute;
• creates and describes a pre-filing diversion program; and
• makes technical changes.

Every vote on this bill

Bill text

PUBLIC PROSECUTOR MODIFICATIONS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Kay J. Christofferson
Senate Sponsor: 
____________
LONG TITLE
General Description:
This bill modifies provisions related to public prosecutors.
Highlighted Provisions:
This bill:
▸ modifies provisions related to a public prosecutor's pretrial duties;
▸ modifies provisions related to when a public prosecutor may dismiss a case;
▸ modifies provisions related to when a public prosecutor may charge an individual
with a classification of the offense at one degree lower than the classification that is
provided in statute;
▸ creates and describes a pre-filing diversion program; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
17-18a-402
, as enacted by Laws of Utah 2013, Chapter 237
17-18a-605
, as enacted by Laws of Utah 2013, Chapter 237
77-2-2
, as last amended by Laws of Utah 2021, Chapter 260
77-2-2.3
, as renumbered and amended by Laws of Utah 2021, Chapter 260
77-22b-1
, as last amended by Laws of Utah 2013, First Special Session, Chapter 1
78A-7-105
, as last amended by Laws of Utah 2020, Chapter 317
ENACTS:
77-2-10
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
17-18a-402
 is amended to read:
17-18a-402.
Pretrial responsibilities.
(1) [
(a)
] A public prosecutor shall:
[
(i)
] 
(a)
 institute proceedings before the proper court:
[
(A)
] 
(i)
 for the arrest of a person charged with a public offense; or
[
(B)
] 
(ii)
 if the prosecutor has probable cause to believe that a public offense has been
committed and a grand jury has been convened by a court;
[
(ii)
] 
(b)
 draw all indictments and information for offenses against:
[
(A)
] 
(i)
 the laws of the state occurring within the county; and
[
(B)
] 
(ii)
 the criminal ordinances of the county;
(c) file and present all indictments and information with the proper court in accordance
with the offense classification provided in the relevant statute or ordinance:
(i) including any sentencing enhancement or other statutory enhancement; and
(ii) subject to the provisions of Sections 
77-2-2.3
 and 
78A-7-105
;
[
(iii)
] 
(d)
 cause all persons under indictment or informed against to be speedily
arraigned for crimes charged; [
and
]
[
(iv)
] 
(e)
 issue subpoenas for all witnesses for the state or for the county in the
prosecution of a criminal ordinance[
.
]
;
(f) ensure that the constitutional and statutory rights of persons who suffer the
consequences of another's criminal acts are protected; and
(g) impartially apply criminal statutes and ordinances to each person who is charged
with a public offense without regard to race, color, sex, national origin, gender identity, sexual
orientation, religion, age, or disability.
[
(b)
] 
(2)
 A public prosecutor described in Subsection [
(1)(a)(i)(B)
] 
(1)(a)(ii)
 shall:
[
(i)
] 
(a)
 assist and attend the deliberations of the grand jury; and
[
(ii)
] 
(b)
 prepare all necessary indictments and arrange for the subpoena of witnesses to
appear before the grand jury.
[
(2)
] 
(3)
 The public prosecutor may:
(a) examine as to the sufficiency of an appearance bond that may be tendered to the
court; and
(b) upon a court order:
(i) institute proceedings for the recovery upon forfeiture of a bond running to the state
or county; and
(ii) enforce the collection of a bond described in Subsection [
(2)
] 
(3)
(b)(i).
[
(3)
] 
(4)
 The public prosecutor is authorized to grant transactional immunity to a
witness for violation of a state statute or county criminal ordinance.
Section 2. Section 
17-18a-605
 is amended to read:
17-18a-605.
Prohibited acts.
(1) Within the state, the attorney may not consult with or otherwise represent a person
charged with a crime, misdemeanor, or breach of a criminal statute or ordinance.
(2) A public prosecutor may not prosecute or dismiss in the name of the state a case in
which the public prosecutor has previously acted as legal counsel for the accused.
[
(3) A public prosecutor may not after the filing of an indictment or information and
without the consent of the court:
]
[
(a) compromise a prosecution; or
]
[
(b) enter a plea of nolle prosequi.
]
(3) A public prosecutor may not negligently or willfully disregard an enacted statute or
ordinance, including any element or provision of a statute or ordinance, when presenting and
filing an information charging an individual with an offense.
(4) After the filing of an indictment or information, a public prosecutor may not do the
following without the consent of the court:
(a) compromise a prosecution;
(b) enter a plea of nolle prosequi; or
(c) dismiss a case without a significant and compelling evidentiary basis that shall be
stated with particularity within a motion and may not be based on the number of cases being
prosecuted by the prosecutor or the court.
(5) A public prosecutor may only establish or oversee a pre-filing diversion program if
the pre-filing diversion program meets the requirements of Section 
77-2-10
.
(6) The violation of this section by a public prosecutor constitutes malfeasance in
office under Section 
77-6-1
 and may subject the public prosecutor to removal under Title 77,
Chapter 6, Removal by Judicial Proceedings.
Section 3. Section 
77-2-2
 is amended to read:
77-2-2.
Definitions.
As used in this chapter:
(1) "Commencement of prosecution" means the filing of an information or an
indictment.
(2) "Diversion" means suspending criminal proceedings before conviction on the
condition that a defendant agree to:
(a) participate in a rehabilitation program;
(b) pay restitution to a victim; or
(c) fulfill some other condition.
(3) "Pre-filing diversion" means an agreement between a prosecuting attorney and an
individual:
(a) entered into before the individual is charged with a crime and before an information
is filed; and
(b) in which the individual is diverted from the traditional justice system and agrees to
participate in and successfully complete a program in accordance with Section 
77-2-10
.
[
(3)
] 
(4)
 "Restitution" means the same as that term is defined in Section 
77-38b-102
.
[
(4)
] 
(5)
 "Screening" means the process used by a prosecuting attorney to:
(a) terminate an investigative action;
(b) proceed with prosecution;
(c) move to dismiss a prosecution that has been commenced; or
(d) cause a prosecution to be diverted.
Section 4. Section 
77-2-2.3
 is amended to read:
77-2-2.3.
Reducing the level of an offense.
(1) Notwithstanding any other provision of law, 
and subject to the provisions of this
section,
 a prosecuting attorney may:
(a) present and file an information charging an individual for an offense under
Subsections 
76-3-103
(1)(b) through (d), Subsection 
76-3-103
(2), or Section 
76-3-104
 with a
classification of the offense at one degree lower than the classification that is provided in
statute
, including any sentencing or other statutory enhancement,
 if the prosecuting attorney
[
believes
] 
determines
 that the sentence would be disproportionate to the offense because [
there
are special circumstances relating to the offense
] 
the individual suffers from an intellectual
disability or other mental illness, as those terms are defined in Section 
76-2-305
; or
(b) subject to the approval of the court, amend an information, as part of a plea
agreement, to charge an individual for an offense under Subsections 
76-3-103
(1)(b) through
(d), Subsection 
76-3-103
(2), or Section 
76-3-104
 with a classification of the offense at one
degree lower than the classification that is provided in statute.
(2) Subsection (1)(a) may not be used by a prosecuting attorney if the individual being
charged was under the influence of voluntarily consumed, injected, or ingested alcohol,
controlled substances, or volatile substances at the time of the alleged offense and the alcohol
or substance caused, triggered, or substantially contributed to the intellectual disability or other
mental illness of the individual.
(3) Subsection (1) may not be used:
(a) in conjunction with any other statute or county or municipal ordinance, to present
and file an information or to amend an information charging an individual with an offense two
or more degrees lower than the classification that is provided in statute, including any
sentencing or other statutory enhancement;
(b) if the individual is being charged with an offense under Title 76, Chapter 5, Part 4,
Sexual Offenses, or a violent felony as defined in Section 
76-3-203.5
; or
(c) if, at the time the offense was committed, the individual being charged:
(i) has a prior conviction for a violation of the same offense;
(ii) has a prior felony conviction for any offense;
(iii) is on parole or probation with the Department of Corrections or a similar entity in
any other state;
(iv) is on probation with a court or other private probation provider;
(v) is subject to requirements of a plea-in-abeyance; or
(vi) was previously incarcerated in a correctional facility as that terms is defined in
Section 
76-8-311.3
.
[
(2)
] 
(4)
 A court may:
(a) enter a judgment of conviction for an offense filed under Subsection (1) at one
degree lower than classified in statute; and
(b) impose a sentence for the offense filed under Subsection (1) at one degree lower
than classified in statute.
[
(3)
] 
(5)
 A conviction of an offense at one degree lower than classified in statute under
Subsection [
(2)
] 
(4)
 does not affect the requirements for registration of the offense under Title
77, Chapter 41, Sex and Kidnap Offender Registry, or Title 77, Chapter 43, Child Abuse
Offender Registry, if the elements of the offense for which the defendant is convicted are the
same as the elements of an offense described in Section 
77-41-102
 or 
77-43-102
.
[
(4)
] 
(6)
 This section does not preclude an individual from obtaining and being granted
an expungement for the individual's record in accordance with Title 77, Chapter 40, Utah
Expungement Act.
Section 5. Section 
77-2-10
 is enacted to read:
 77-2-10.
Pre-filing diversion.
(1) As used in this section:
(a) "Prosecuting entity" means:
(i) the attorney general's office;
(ii) a county or district attorney's office; or
(iii) a city attorney's office.
(b) "Program" means a pre-filing diversion program as described in this section.
(2) A prosecuting entity may establish a pre-filing diversion program by partnering
with a provider that:
(a) is a licensed private probation provider under Title 58, Chapter 50, Private
Probation Provider Licensing Act; and
(b) has at least two full-time employees who are licensed under one or more of the
following:
(i) Title 58, Chapter 42a, Occupational Therapy Practice Act;
(ii) Title 58, Chapter 60, Part 2, Social Worker Licensing Act;
(iii) Title 58, Chapter 60, Part 4, Clinical Mental Health Counselor Licensing Act;
(iv) Title 58, Chapter 60, Part 5, Substance Use Disorder Counselor Act;
(v) Title 58, Chapter 61, Psychologist Licensing Act; and
(vi) Title 58, Chapter 78, Vocational Rehabilitation Counselors Licensing Act.
(3) Before implementing a pre-filing diversion program, a prosecuting entity that is a
county or district attorney's office or that is a city attorney's office shall ensure that the program
and the provider are approved by:
(a) the prosecuting entity's local health department;
(b) the prosecuting entity's county sheriff;
(c) the chief executive officer of each local police department located within the
jurisdiction of the prosecuting entity; and
(d) the director of the public defender organization that operates within the jurisdiction
of the prosecuting entity.
(4) Before an attorney of a prosecuting entity may invite an individual to participate in
a pre-filing diversion program, the attorney shall:
(a) review the factual basis and statutory elements of the alleged criminal offense and
comply with the Rules of Professional Conduct, Rule 3.8; and
(b) obtain the written approval to invite the individual to participate in the program
from each individual or entity that suffered injury as a result of the alleged criminal offense.
(5) A prosecuting entity may not invite an individual to participate in a pre-filing
diversion program unless the individual agrees in writing to pay, before the end of the program
contract period, full restitution to each person or entity that suffered injury as a result of the
alleged criminal offense.
(6) After determining that an individual qualifies for participation in a pre-filing
diversion program, a prosecuting entity shall serve, in the same manner as described in Utah
Rules of Civil Procedure, Rule (4)(d), an invitation to participate in the program, which
invitation shall include:
(a) a declaration and explanation of the individual's rights;
(b) the time constraints for acceptance; and
(c) directions on how to contact the prosecuting entity and the program provider.
(7) An individual may not be admitted into a pre-filing diversion program without
entering into a written contract with the program provider and the prosecuting entity, which
contract clearly states:
(a) all duties and obligations of the individual and the program provider;
(b) the cost and fee requirements of the program;
(c) the duration of the program, which shall be at least eight months and no more than
two years; and
(d) the individual's duty to pay any restitution within the program contract period.
(8) After the written contract described in Subsection (7) is completed, the prosecuting
entity may not maintain or exert any control over the pre-filing diversion program, the program
provider, or the participating individual, except that the program provider shall provide a report
to the prosecuting entity that the participant has:
(a) failed to comply with program requirements; or
(b) completed the program successfully.
(9) Except for the information that is to be reported to a prosecuting entity as described
in Subsection (8), a program provider is subject to all laws pertaining to client or patient
confidentiality.
(10) If an individual successfully completes a pre-filing diversion program, the
individual is not subject to prosecution for the offense involved.
(11) (a) If an individual fails to enter into a written contract within 15 days after the
day on which the individual is served an invitation to participate in a pre-filing diversion
program, or if an individual fails to comply with program requirements as shown by a report
described in Subsection (8), the prosecuting entity shall file an information charging the
individual with the applicable criminal offense as classified in statute, including any sentencing
or other statutory enhancement within 15 days after the day on which the prosecuting entity
becomes aware of the failure.
(b) Failure of a prosecuting attorney to comply with the provisions of Subsection (6) is
an affirmative defense to a prosecution resulting from a violation of this Subsection (11).
(12) A prosecuting entity and a program provider may not use public funds to establish,
operate, or manage a pre-filing diversion program.
(13) An individual may not participate in a pre-filing diversion program if the
individual:
(a) has a prior conviction for the violation or attempted violation of the same offense;
(b) has a prior felony conviction for any offense;
(c) was on parole or probation with the Department of Corrections or a similar entity in
any other state;
(d) was on probation with a court or private probation provider;
(e) was a subject to requirements of a plea in abeyance for any offense;
(f) has two or more misdemeanor convictions for any offense;
(g) has a prior conviction for any offense involving violence;
(h) was incarcerated in any correctional facility as defined in Section 
76-8-311.3
; or
(i) previously participated in a pre-filing diversion program and did not complete the
requirements of the program.
(14) A prosecuting entity may not invite an individual to participate in a pre-filing
diversion program for the following offenses:
(a) an offense that is classified as a felony in statute, including any sentencing or other
statutory enhancement;
(b) an offense involving or against a person under 18 years old;
(c) an offense described in Title 76, Chapter 5, Offenses Against the Person;
(d) an offense involving a weapon under Section 
76-3-203.2
 or Title 76, Chapter 10,
Part 5, Weapons;
(e) a domestic violence offense as defined in Section 
77-36-1
; and
(f) an offense that is classified as an infraction in statute.
Section 6. Section 
77-22b-1
 is amended to read:
77-22b-1.
 Immunity granted to witness.
(1) (a) A witness who refuses, or is likely to refuse, on the basis of the witness's
privilege against self-incrimination to testify or provide evidence or information in a criminal
investigation, including a grand jury investigation or prosecution of a criminal case, or in aid of
an investigation or inquiry being conducted by a government agency or commission, or by
either house of the Legislature, a joint committee of the two houses, or a committee or
subcommittee of either house, may be compelled to testify or provide evidence or information
by any of the following, after being granted use immunity with regards to the compelled
testimony or production of evidence or information:
(i) the attorney general or any assistant attorney general authorized by the attorney
general;
(ii) a district attorney or any deputy district attorney authorized by a district attorney;
(iii) in a county not within a prosecution district, a county attorney or any deputy
county attorney authorized by a county attorney;
(iv) a special counsel for the grand jury;
(v) a prosecutor pro tempore appointed under the Utah Constitution, Article VIII, Sec.
16; or
(vi) legislative general counsel in the case of testimony pursuant to subpoena before:
(A) the Legislature;
(B) either house of the Legislature; or
(C) a committee of the Legislature, including a joint committee, a committee of either
house, a subcommittee, or a special investigative committee.
(b) If any prosecutor authorized under Subsection (1)(a) intends to compel a witness to
testify or provide evidence or information under a grant of use immunity, the prosecutor shall
notify the witness by written notice. The notice shall include the information contained in
Subsection (2) and advise the witness that the witness may not refuse to testify or provide
evidence or information on the basis of the witness's privilege against self-incrimination. The
notice need not be in writing when the grant of use immunity occurs on the record in the course
of a preliminary hearing, grand jury proceeding, or trial.
(2) Testimony, evidence, or information compelled under Subsection (1) may not be
used against the witness in any criminal or quasi-criminal case, nor any information directly or
indirectly derived from this testimony, evidence, or information, unless the testimony,
evidence, or information is volunteered by the witness or is otherwise not responsive to a
question. Immunity does not extend to prosecution or punishment for perjury or to giving a
false statement in connection with any testimony.
(3) If a witness is granted immunity under Subsection (1) and is later prosecuted for an
offense that was part of the transaction or events about which the witness was compelled to
testify or produce evidence or information under a grant of immunity, the burden is on the
prosecution to show by a preponderance of the evidence that no use or derivative use was made
of the compelled testimony, evidence, or information in the subsequent case against the
witness, and to show that any proffered evidence was derived from sources totally independent
of the compelled testimony, evidence, or information. The remedy for not establishing that any
proffered evidence was derived from sources totally independent of the compelled testimony,
evidence, or information is suppression of that evidence only.
(4) Nothing in this section prohibits or limits prosecutorial authority granted in Section
77-22-4.5
.
(5) A county attorney within a prosecution district shall have the authority to grant
immunity only as provided in Subsection 
17-18a-402
[
(3)
]
(4)
.
(6) For purposes of this section, "quasi-criminal" means only those proceedings that are
determined by a court to be so far criminal in their nature that a defendant has a constitutional
right against self-incrimination.
Section 7. Section 
78A-7-105
 is amended to read:
78A-7-105.
Territorial jurisdiction -- Voting.
(1) (a) The territorial jurisdiction of county justice courts extends to the limits of the
precinct for which the justice court is created and includes all cities or towns within the
precinct, other than cities where a municipal justice court exists.
(b) [
A
] 
Subject to the provisions of this Subsection (1), a
 county or district attorney
may file a class B [
or C
] misdemeanor offense in a county justice court, regardless of where the
act occurred, if:
(i) the same offense could have been filed as a class A misdemeanor in district court;
(ii) statute provides that an attempt to commit the offense described in Subsection
(1)(b)(i) is a class B [
or class C
] misdemeanor; and
(iii) the case was submitted to the county or district attorney's office for prosecution.
(c) Subsection (1)(b) may not be used by a county or district attorney:
(i) in conjunction with any other statute or county or municipal ordinance to present
and file an information charging an individual with an offense two or more degrees lower than
the classification that is provided in statute, including any sentencing or statutory enhancement,
or county or municipal ordinance;
(ii) if the individual is being charged with an offense under Title 76, Chapter 5, Part 4,
Sexual Offenses; or
(iii) if, at the time the offense was committed, the individual being charged:
(A) has a prior conviction for a violation of the same offense;
(B) has a prior felony conviction for any offense;
(C) is on parole or probation with the Department of Corrections or a similar entity in
any other state;
(D) is on probation with a court or other private probation provider;
(E) is subject to requirements of a plea-in-abeyance; or
(F) was previously incarcerated in a correctional facility as that term is defined in
Section 
76-8-311.3
.
[
(c)
] 
(d)
 Notwithstanding Subsection (1)(a), the territorial jurisdiction of a county
justice court extends to the place where the act, filed as a class B [
or C
] misdemeanor under
Subsection (1)(b), occurred.
(2) The territorial jurisdiction of municipal justice courts extends to the corporate
limits of the municipality in which the justice court is created.
(3) Justice court judges have the same authority regarding matters within their
jurisdiction as judges of courts of record.
(4) A justice court may issue all extraordinary writs and other writs as necessary to
carry into effect its orders, judgments, and decrees.
(5) (a) Except as provided in this Subsection (5), a judgment rendered in a justice court
does not create a lien upon any real property of the judgment debtor unless the judgment or
abstract of the judgment:
(i) is recorded in the office of the county recorder of the county in which the real
property of the judgment debtor is located; and
(ii) contains the information identifying the judgment debtor in the judgment or
abstract of judgment as required in Subsection 
78B-5-201
(4)(b) or as a separate information
statement of the judgment creditor as required in Subsection 
78B-5-201
(5).
(b) The lien runs for eight years from the date the judgment was entered in the district
court under Section 
78B-5-202
 unless the judgment is earlier satisfied.
(c) State agencies are exempt from the recording requirement of Subsection (5)(a).