First Substitute H.B. 240

Representative Brent H. Goodfellow proposes to substitute the following bill:

1 DOMESTIC VIOLENCE DEFINITION AMENDMENT
2 1999 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Brent H. Goodfellow
5 AN ACT RELATING TO COHABITANT ABUSE PROCEDURES ACT; INCLUDING THE
6 CRIME OF DISORDERLY CONDUCT WITHIN THE DEFINITION OF DOMESTIC
7 VIOLENCE UNDER CERTAIN CONDITIONS; AND EXEMPTING SPECIFIED
8 CONVICTION FROM FEDERAL FIREARMS ACT.
9 This act affects sections of Utah Code Annotated 1953 as follows:
10 AMENDS:
11 77-36-1, as last amended by Chapter 79, Laws of Utah 1996
12 Be it enacted by the Legislature of the state of Utah:
13 Section 1. Section 77-36-1 is amended to read:
14 77-36-1. Definitions.
15 As used in this chapter:
16 (1) "Cohabitant" has the same meaning as in Section 30-6-1 .
17 (2) "Domestic violence" means any criminal offense involving violence or physical harm
18 or threat of violence or physical harm, or any attempt, conspiracy, or solicitation to commit a
19 criminal offense involving violence or physical harm, when committed by one cohabitant against
20 another. "Domestic violence" also means commission or attempt to commit, any of the following
21 offenses by one cohabitant against another:
22 (a) aggravated assault, as described in Section 76-5-103 ;
23 (b) assault, as described in Section 76-5-102 ;
24 (c) criminal homicide, as described in Section 76-5-201 ;
25 (d) harassment, as described in Section 76-5-106 ;

26 (e) telephone harassment, as described in Section 76-9-201 ;
27 (f) kidnaping, child kidnaping, or aggravated [kidnapping] kidnaping, as described in
28 Sections 76-5-301 , 76-5-301.1 , and 76-5-302 ;
29 (g) mayhem, as described in Section 76-5-105 ;
30 (h) sexual offenses, as described in Title 76, Chapter 5, Part 4, and Title 76, Chapter 5a;
31 (i) stalking, as described in Section 76-5-106.5 ;
32 (j) unlawful detention, as described in Section 76-5-304 ;
33 (k) violation of a protective order or ex parte protective order, as described in Section
34 76-5-108 ;
35 (l) any offense against property described in Title 76, Chapter 6, Part 1, 2, or 3;
36 (m) possession of a deadly weapon with intent to assault, as described in Section
37 76-10-507 ; [or]
38 (n) discharge of a firearm from a vehicle, near a highway, or in the direction of any person,
39 building, or vehicle, as described in Section 76-10-508 [.]; or
40 (o) disorderly conduct, as defined in Section 76-9-102 , if a conviction of disorderly
41 conduct is the result of a plea agreement in which the defendant was originally charged with any
42 of the domestic violence offenses otherwise described in this Subsection (2). Conviction of
43 disorderly conduct as a domestic violence offense, in the manner described in this Subsection (o),
44 does not constitute a misdemeanor crime of domestic violence under 18 U.S.C. Section 921, and
45 is exempt from the provisions of the federal Firearms Act, 18 U.S.C. Section 921 et seq.
46 (3) "Victim" means a cohabitant who has been subjected to domestic violence.

Legislative Review Note
as of 2-4-99 5:15 PM

This legislation raises the following constitutional or statutory concerns:

This bill defines "disorderly conduct" as a domestic violence offense (committed by one cohabitant
against another) if the conviction of disorderly conduct is the result of a plea agreement where the
original charge was another domestic violence offense, as currently defined in the Utah Code.
The bill further exempts such a conviction of "disorderly conduct-domestic violence" from the
provisions of the federal Firearms Act, 18 U.S.C. Section 921, et seq.
However, the federal act covers, by definition, an offense that is a misdemeanor under state law
and that includes, as an element of the offense, "the use or attempted use of physical force". 18
U.S.C. Subsection 921(33). The Utah crime of disorderly conduct is a misdemeanor offense which
includes, as an element of the offense, "engaging in fighting, or in violent, tumultuous, or
threatening behavior". Utah Code Annotated Subsection 76-9-102(1)(b)(i).
Because of this there is a risk that the state is federally preempted from exempting this re-defined
offense of "disorderly conduct-domestic violence" from the provisions of the federal law.

Office of Legislative Research and General Counsel