1     
DOMESTIC VIOLENCE AMENDMENTS

2     
2015 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Todd Weiler

5     
House Sponsor: Angela Romero

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions in the Cohabitant Abuse Procedures Act.
10     Highlighted Provisions:
11          This bill:
12          ▸     amends provisions related to a plea of guilty or no contest to a domestic violence
13     offense.
14     Money Appropriated in this Bill:
15          None
16     Other Special Clauses:
17          None
18     Utah Code Sections Affected:
19     AMENDS:
20          77-36-1, as last amended by Laws of Utah 2012, Chapter 39
21          77-36-1.1, as last amended by Laws of Utah 2005, Chapter 55
22     ENACTS:
23          77-36-1.2, Utah Code Annotated 1953
24     

25     Be it enacted by the Legislature of the state of Utah:
26          Section 1. Section 77-36-1 is amended to read:
27          77-36-1. Definitions.

28          As used in this chapter:
29          (1) "Cohabitant" has the same meaning as in Section 78B-7-102.
30          (2) "Department" means the Department of Public Safety.
31          (3) "Divorced" means an individual who has obtained a divorce under Title 30, Chapter
32     3, Divorce.
33          (4) "Domestic violence" or "domestic violence offense" means any criminal offense
34     involving violence or physical harm or threat of violence or physical harm, or any attempt,
35     conspiracy, or solicitation to commit a criminal offense involving violence or physical harm,
36     when committed by one cohabitant against another. "Domestic violence" or "domestic
37     violence offense" also means commission or attempt to commit, any of the following offenses
38     by one cohabitant against another:
39          (a) aggravated assault, as described in Section 76-5-103;
40          (b) assault, as described in Section 76-5-102;
41          (c) criminal homicide, as described in Section 76-5-201;
42          (d) harassment, as described in Section 76-5-106;
43          (e) electronic communication harassment, as described in Section 76-9-201;
44          (f) kidnapping, child kidnapping, or aggravated kidnapping, as described in Sections
45     76-5-301, 76-5-301.1, and 76-5-302;
46          (g) mayhem, as described in Section 76-5-105;
47          (h) sexual offenses, as described in Title 76, Chapter 5, Part 4, Sexual Offenses, and
48     Section 76-5b-201, Sexual Exploitation of a Minor;
49          (i) stalking, as described in Section 76-5-106.5;
50          (j) unlawful detention or unlawful detention of a minor, as described in Section
51     76-5-304;
52          (k) violation of a protective order or ex parte protective order, as described in Section
53     76-5-108;
54          (l) any offense against property described in Title 76, Chapter 6, Part 1, Property
55     Destruction, Part 2, Burglary and Criminal Trespass, or Part 3, Robbery;
56          (m) possession of a deadly weapon with intent to assault, as described in Section
57     76-10-507;
58          (n) discharge of a firearm from a vehicle, near a highway, or in the direction of any

59     person, building, or vehicle, as described in Section 76-10-508;
60          (o) disorderly conduct, as defined in Section 76-9-102, if a conviction of disorderly
61     conduct is the result of a plea agreement in which the defendant was originally charged with
62     [any of the] a domestic violence [offenses] offense otherwise described in this Subsection (4).
63     Conviction of disorderly conduct as a domestic violence offense, in the manner described in
64     this Subsection (4)(o), does not constitute a misdemeanor crime of domestic violence under 18
65     U.S.C. Section 921, and is exempt from the provisions of the federal Firearms Act, 18 U.S.C.
66     Section 921 et seq.; or
67          (p) child abuse as described in Section 76-5-109.1.
68          (5) "Jail release agreement" means a written agreement:
69          (a) specifying and limiting the contact a person arrested for a domestic violence offense
70     may have with an alleged victim or other specified individuals; and
71          (b) specifying other conditions of release from jail as required in Subsection
72     77-36-2.5(2).
73          (6) "Jail release court order" means a written court order:
74          (a) specifying and limiting the contact a person arrested for a domestic violence offense
75     may have with an alleged victim or other specified individuals; and
76          (b) specifying other conditions of release from jail as required in Subsection
77     77-36-2.5(2).
78          (7) "Marital status" means married and living together, divorced, separated, or not
79     married.
80          (8) "Married and living together" means a man and a woman whose marriage was
81     solemnized under Section 30-1-4 or 30-1-6 and who are living in the same residence.
82          (9) "Not married" means any living arrangement other than married and living together,
83     divorced, or separated.
84          (10) "Pretrial protective order" means a written order:
85          (a) specifying and limiting the contact a person who has been charged with a domestic
86     violence offense may have with an alleged victim or other specified individuals; and
87          (b) specifying other conditions of release pursuant to Subsection 77-36-2.5(3)(c),
88     Subsection 77-36-2.6(3), or Section 77-36-2.7, pending trial in the criminal case.
89          (11) "Sentencing protective order" means a written order of the court as part of

90     sentencing in a domestic violence case that limits the contact a person who has been convicted
91     of a domestic violence offense may have with a victim or other specified individuals pursuant
92     to Sections 77-36-5 and 77-36-5.1.
93          (12) "Separated" means a man and a woman who have had their marriage solemnized
94     under Section 30-1-4 or 30-1-6 and who are not living in the same residence.
95          (13) "Victim" means a cohabitant who has been subjected to domestic violence.
96          Section 2. Section 77-36-1.1 is amended to read:
97          77-36-1.1. Enhancement of offense and penalty for subsequent domestic violence
98     offenses.
99          (1) For purposes of this section, "qualifying domestic violence offense" means:
100          (a) a domestic violence offense in Utah; or
101          (b) an offense in any other state, or in any district, possession, or territory of the United
102     States, that would be a domestic violence offense under Utah law.
103          (2) A person who is convicted of a domestic violence offense is:
104          (a) guilty of a class B misdemeanor if:
105          (i) the domestic violence offense described in this Subsection (2) is designated by law
106     as a class C misdemeanor; and
107          (ii) (A) the domestic violence offense described in this Subsection (2) is committed
108     within five years after the person is convicted of a qualifying domestic violence offense; or
109          (B) the person is convicted of the domestic violence offense described in this
110     Subsection (2) within five years after the person is convicted of a qualifying domestic violence
111     offense;
112          (b) guilty of a class A misdemeanor if:
113          (i) the domestic violence offense described in this Subsection (2) is designated by law
114     as a class B misdemeanor; and
115          (ii) (A) the domestic violence offense described in this Subsection (2) is committed
116     within five years after the person is convicted of a qualifying domestic violence offense; or
117          (B) the person is convicted of the domestic violence offense described in this
118     Subsection (2) within five years after the person is convicted of a qualifying domestic violence
119     offense; or
120          (c) guilty of a felony of the third degree if:

121          (i) the domestic violence offense described in this Subsection (2) is designated by law
122     as a class A misdemeanor; and
123          (ii) (A) the domestic violence offense described in this Subsection (2) is committed
124     within five years after the person is convicted of a qualifying domestic violence offense; or
125          (B) the person is convicted of the domestic violence offense described in this
126     Subsection (2) within five years after the person is convicted of a qualifying domestic violence
127     offense.
128          [(3) For purposes of this section, a plea of guilty or no contest to any qualifying
129     domestic violence offense in Utah which plea is held in abeyance under Title 77, Chapter 2a,
130     Pleas in Abeyance, is the equivalent of a conviction, even if the charge has been subsequently
131     reduced or dismissed in accordance with the plea in abeyance agreement.]
132          Section 3. Section 77-36-1.2 is enacted to read:
133          77-36-1.2. Acceptance of a plea of guilty or no contest to domestic violence --
134     Restrictions.
135          (1) For purposes of this section, "qualifying domestic violence offense" means:
136          (a) a domestic violence offense in Utah; or
137          (b) an offense in any other state, or in any district, possession, or territory of the United
138     States, that would be a domestic violence offense under Utah law.
139          (2) For purposes of this section, a plea of guilty or no contest to any domestic violence
140     offense in Utah, which plea is held in abeyance under Title 77, Chapter 2a, Pleas in Abeyance,
141     is the equivalent of a conviction, even if the charge has been subsequently reduced or dismissed
142     in accordance with the plea in abeyance agreement.
143          (3) (a) Before agreeing to a plea of guilty or no contest or to filing an information, the
144     prosecutor shall examine the criminal history of the defendant.
145          (b) The court may not accept a plea of guilty or no contest to a domestic violence
146     offense, unless:
147          (i) the prosecutor agrees to the plea:
148          (A) in open court;
149          (B) in writing; or
150          (C) by another means of communication that the court finds adequate to record the
151     prosecutor's agreement; or

152          (ii) (A) the domestic violence offense is filed by information;
153          (B) the court receives a copy of the defendant's criminal history; and
154          (C) the criminal history contains no record of a conviction, arrest, or charge of a
155     qualifying domestic violence offense within five years before the date on which the plea is
156     entered.
157          (c) A plea of guilty or no contest is not made invalid by the failure of a court, a
158     prosecutor, or a law enforcement agency to comply with this section.






Legislative Review Note
     as of 1-13-15 8:37 AM


Office of Legislative Research and General Counsel