S.B. 91

1

WEAPONS - TECHNICAL AMENDMENTS
2 1999 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Michael G. Waddoups
5 AN ACT RELATING TO CRIMINAL CODE; SEPARATING INTO TWO SECTIONS
6 PROVISIONS RELATING TO DEFINITIONS AND UNIFORM LAW TO FACILITATE THE
7 ADDITION OF DEFINITIONS IN THE FUTURE; AND MAKING TECHNICAL
8 CORRECTIONS.
9 This act affects sections of Utah Code Annotated 1953 as follows:
10 AMENDS:
11 76-8-311.3, as last amended by Chapter 288, Laws of Utah 1997
12 76-10-501, as last amended by Chapter 263, Laws of Utah 1998
13 ENACTS:
14 76-10-500, Utah Code Annotated 1953
15 Be it enacted by the Legislature of the state of Utah:
16 Section 1. Section 76-8-311.3 is amended to read:
17 76-8-311.3. Items prohibited in correctional and mental health facilities -- Penalties.
18 (1) As used in this section:
19 (a) "Contraband" means any item not specifically prohibited for possession by offenders
20 under this section or Title 58, Chapter 37, Utah Controlled Substances Act.
21 (b) "Controlled substance" means any substance defined as a controlled substance under
22 Title 58, Chapter 37, Utah Controlled Substances Act.
23 (c) "Correctional facility" means:
24 (i) any facility operated by the Department of Corrections to house offenders in either a
25 secure or nonsecure setting;
26 (ii) any facility operated by a municipality or a county to house or detain criminal
27 offenders;

28 (iii) any juvenile detention facility; and
29 (iv) any building or grounds appurtenant to the facility or lands granted to the state,
30 municipality, or county for use as a correctional facility.
31 (d) "Medicine" means any prescription drug as defined in Title 58, Chapter 17a, Pharmacy
32 Practice Act, but does not include any controlled substances as defined in Title 58, Chapter 37,
33 Utah Controlled Substances Act.
34 (e) "Mental health facility" has the same meaning as defined in Section 62A-12-202 .
35 (f) "Offender" means a person in custody at a correctional facility.
36 (g) "Secure area" has the same meaning as provided in Section 76-8-311.1 .
37 (2) Notwithstanding [any other statute to the contrary, including Subsection 76-10-501 (b)]
38 Section 76-10-500 , a correctional or mental health facility may provide by rule that no firearm,
39 ammunition, dangerous weapon, implement of escape, explosive, controlled substance, spirituous
40 or fermented liquor, medicine, or poison in any quantity may be:
41 (a) transported to or upon a correctional or mental health facility;
42 (b) sold or given away at any correctional or mental health facility;
43 (c) given to or used by any offender at a correctional or mental health facility; or
44 (d) knowingly or intentionally possessed at a correctional or mental health facility.
45 (3) It is a defense to any prosecution under this section if the accused in committing the
46 act made criminal by this section:
47 (a) with respect to a correctional facility operated by the Department of Corrections, acted
48 in conformity with departmental rule or policy;
49 (b) with respect to a correctional facility operated by a municipality, acted in conformity
50 with the policy of the municipality;
51 (c) with respect to a correctional facility operated by a county, acted in conformity with
52 the policy of the county; or
53 (d) with respect to a mental health facility, acted in conformity with the policy of the
54 mental health facility.
55 (4) (a) Any person who transports to or upon a correctional facility, or into a secure area
56 of a mental health facility, any firearm, ammunition, dangerous weapon, explosive, or implement
57 of escape with intent to provide or sell it to any offender, is guilty of a second degree felony.
58 (b) Any person who provides or sells to any offender at a correctional facility, or any

59 detainee at a secure area of a mental health facility, any firearm, ammunition, dangerous weapon,
60 explosive, or implement of escape is guilty of a second degree felony.
61 (c) Any offender who possesses at a correctional facility, or any detainee who possesses
62 at a secure area of a mental health facility, any firearm, ammunition, dangerous weapon, explosive,
63 or implement of escape is guilty of a second degree felony.
64 (d) Any person who, without the permission of the authority operating the correctional
65 facility or the secure area of a mental health facility, knowingly possesses at a correctional facility
66 or a secure area of a mental health facility any firearm, ammunition, dangerous weapon, implement
67 of escape, or explosive is guilty of a third degree felony.
68 (5) (a) A person is guilty of a third degree felony who, without the permission of the
69 authority operating the correctional facility or secure area of a mental health facility, knowingly
70 transports to or upon a correctional facility or into a secure area of a mental health facility any:
71 (i) spirituous or fermented liquor;
72 (ii) medicine, whether or not lawfully prescribed for the offender; or
73 (iii) poison in any quantity.
74 (b) A person is guilty of a third degree felony who knowingly violates correctional or
75 mental health facility policy or rule by providing or selling to any offender at a correctional facility
76 or detainee within a secure area of a mental health facility any:
77 (i) spirituous or fermented liquor;
78 (ii) medicine, whether or not lawfully prescribed for the offender; or
79 (iii) poison in any quantity.
80 (c) An inmate is guilty of a third degree felony who, in violation of correctional or mental
81 health facility policy or rule, possesses at a correctional facility or in a secure area of a mental
82 health facility any:
83 (i) spirituous or fermented liquor;
84 (ii) medicine, other than medicine provided by the facility's health care providers in
85 compliance with facility policy; or
86 (iii) poison in any quantity.
87 (d) A person is guilty of a class A misdemeanor who, without the permission of the
88 authority operating the correctional or mental health facility, fails to declare or knowingly
89 possesses at a correctional facility or in a secure area of a mental health facility any:

90 (i) spirituous or fermented liquor;
91 (ii) medicine; or
92 (iii) poison in any quantity.
93 (e) A person is guilty of a class B misdemeanor who, without the permission of the
94 authority operating the facility, knowingly engages in any activity that would facilitate the
95 possession of any contraband by an offender in a correctional facility.
96 (f) Exemptions may be granted for worship for Native American inmates pursuant to
97 Section 64-13-40 .
98 (6) The possession, distribution, or use of a controlled substance at a correctional facility
99 or in a secure area of a mental health facility shall be prosecuted in accordance with Title 58,
100 Chapter 37, Utah Controlled Substances Act.
101 Section 2. Section 76-10-500 is enacted to read:
102 76-10-500. Uniform law.
103 (1) The individual right to keep and bear arms being a constitutionally protected right, the
104 Legislature finds the need to provide uniform laws throughout the state. Except as specifically
105 provided by state law, a citizen of the United States or a lawfully admitted alien shall not be:
106 (a) prohibited from owning, possessing, purchasing, transporting, or keeping any firearm
107 at his place of residence, property, business, or in any vehicle under his control; or
108 (b) required to have a permit or license to purchase, own, possess, transport, or keep a
109 firearm.
110 (2) This part is uniformly applicable throughout this state and in all its political
111 subdivisions and municipalities. All authority to regulate firearms shall be reserved to the state
112 except where the Legislature specifically delegates responsibility to local authorities. Unless
113 specifically authorized by the Legislature by statute, a local authority may not enact or enforce any
114 ordinance, regulation, or rule pertaining to firearms.
115 Section 3. Section 76-10-501 is amended to read:
116 76-10-501. Uniform law -- Definitions.
117 [(1) (a) The individual right to keep and bear arms being a constitutionally protected right,
118 the Legislature finds the need to provide uniform laws throughout the state. Except as specifically
119 provided by state law, a citizen of the United States or a lawfully admitted alien shall not be:]
120 [(i) prohibited from owning, possessing, purchasing, transporting, or keeping any firearm

121 at his place of residence, property, business, or in any vehicle under his control; or]
122 [(ii) required to have a permit or license to purchase, own, possess, transport, or keep a
123 firearm.]
124 [(b) This part is uniformly applicable throughout this state and in all its political
125 subdivisions and municipalities. All authority to regulate firearms shall be reserved to the state
126 except where the Legislature specifically delegates responsibility to local authorities. Unless
127 specifically authorized by the Legislature by statute, a local authority may not enact or enforce any
128 ordinance, regulation, or rule pertaining to firearms.]
129 [(2)] As used in this part:
130 [(a) (i)] (1) (a) "Concealed dangerous weapon" means a dangerous weapon that is covered,
131 hidden, or secreted in a manner that the public would not be aware of its presence and is readily
132 accessible for immediate use.
133 [(ii)] (b) A dangerous weapon shall not be considered a concealed dangerous weapon if it
134 is a firearm which is unloaded and is securely encased.
135 [(b)] (2) "Crime of violence" means aggravated murder, murder, manslaughter, rape,
136 mayhem, kidnapping, robbery, burglary, housebreaking, extortion, or blackmail accompanied by
137 threats of violence, assault with a dangerous weapon, assault with intent to commit any offense
138 punishable by imprisonment for more than one year, arson punishable by imprisonment for more
139 than one year, or an attempt to commit any of these offenses.
140 [(c)] (3) "Criminal history background check" means a criminal background check
141 conducted by a licensed firearms dealer on every purchaser of a handgun through the division or
142 the local law enforcement agency where the firearms dealer conducts business.
143 [(d)] (4) "Dangerous weapon" means any item that in the manner of its use or intended use
144 is capable of causing death or serious bodily injury. The following factors shall be used in
145 determining whether a knife, or any other item, object, or thing not commonly known as a
146 dangerous weapon is a dangerous weapon:
147 [(i)] (a) the character of the instrument, object, or thing;
148 [(ii)] (b) the character of the wound produced, if any;
149 [(iii)] (c) the manner in which the instrument, object, or thing was used; and
150 [(iv)] (d) the other lawful purposes for which the instrument, object, or thing may be used.
151 [(e)] (5) "Dealer" means every person who is licensed under crimes and criminal

152 procedure, 18 U.S.C. 923 and engaged in the business of selling, leasing, or otherwise transferring
153 a handgun, whether the person is a retail or wholesale dealer, pawnbroker, or otherwise.
154 [(f)] (6) "Division" means the Criminal Investigations and Technical Services Division of
155 the Department of Public Safety, created in Section 53-10-103 .
156 [(g)] (7) "Firearm" means a pistol, revolver, shotgun, sawed-off shotgun, rifle or
157 sawed-off rifle, or any device that could be used as a dangerous weapon from which is expelled
158 a projectile by action of an explosive.
159 [(h)] (8) "Fully automatic weapon" means any firearm which fires, is designed to fire, or
160 can be readily restored to fire, automatically more than one shot without manual reloading by a
161 single function of the trigger.
162 [(i)] (9) "Firearms transaction record form" means a form created by the division to be
163 completed by a person purchasing, selling, or transferring a handgun from a dealer in the state.
164 [(j)] (10) "Handgun" means a pistol, revolver, or other firearm of any description, loaded
165 or unloaded, from which any shot, bullet, or other missile can be discharged, the length of which,
166 not including any revolving, detachable, or magazine breech, does not exceed 12 inches.
167 [(k)] (11) "Prohibited area" means any place where it is unlawful to discharge a firearm.
168 [(l)] (12) "Readily accessible for immediate use" means that a firearm or other dangerous
169 weapon is carried on the person or within such close proximity and in such a manner that it can
170 be retrieved and used as readily as if carried on the person.
171 [(m)] (13) "Sawed-off shotgun" or "sawed-off rifle" means a shotgun having a barrel or
172 barrels of fewer than 18 inches in length, or in the case of a rifle, having a barrel or barrels of fewer
173 than 16 inches in length, or any dangerous weapon made from a rifle or shotgun by alteration,
174 modification, or otherwise, if the weapon as modified has an overall length of fewer than 26
175 inches.
176 [(n)] (14) "Securely encased" means not readily accessible for immediate use, such as held
177 in a gun rack, or in a closed case or container, whether or not locked, or in a trunk or other storage
178 area of a motor vehicle, not including a glove box or console box.

Legislative Review Note
as of 1-13-99 11:31 AM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel