1     
COHABITANT ABUSE PROCEDURES ACT REVISIONS

2     
2016 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Lyle W. Hillyard

5     
House Sponsor: Jack R. Draxler

6     

7     LONG TITLE
8     General Description:
9          This bill amends the Cohabitant Abuse Procedures Act in relation to sentencing and
10     conditional release from jail.
11     Highlighted Provisions:
12          This bill:
13          ▸     defines terms;
14          ▸     prevents the release of a person arrested for a domestic violence offense before
15     appearing before a magistrate or signing a jail release agreement;
16          ▸     requires the arresting officer to:
17               •     provide certain notices to the alleged victim and the person arrested for
18     domestic violence; and
19               •     inform the magistrate if the alleged victim waives certain release conditions;
20          ▸     creates certain procedures for the release of a person arrested for domestic violence
21     between the person's appearance before a magistrate and the person's appearance
22     before a court;
23          ▸     amends a sentencing requirement regarding treatment or therapy in a domestic
24     violence treatment program; and
25          ▸     makes technical changes.
26     Money Appropriated in this Bill:
27          None
28     Other Special Clauses:
29          None
30     Utah Code Sections Affected:
31     AMENDS:
32          77-36-1, as last amended by Laws of Utah 2015, Chapter 426
33          77-36-2.5, as last amended by Laws of Utah 2013, Chapters 245 and 278
34          77-36-5, as last amended by Laws of Utah 2010, Chapter 384
35     

36     Be it enacted by the Legislature of the state of Utah:
37          Section 1. Section 77-36-1 is amended to read:
38          77-36-1. Definitions.
39          As used in this chapter:
40          (1) "Cohabitant" [has the same meaning as] means the same as that term is defined in
41     Section 78B-7-102.
42          (2) "Department" means the Department of Public Safety.
43          (3) "Divorced" means an individual who has obtained a divorce under Title 30, Chapter
44     3, Divorce.
45          (4) "Domestic violence" or "domestic violence offense" means any criminal offense
46     involving violence or physical harm or threat of violence or physical harm, or any attempt,
47     conspiracy, or solicitation to commit a criminal offense involving violence or physical harm,
48     when committed by one cohabitant against another. "Domestic violence" or "domestic
49     violence offense" also means commission or attempt to commit, any of the following offenses
50     by one cohabitant against another:
51          (a) aggravated assault, as described in Section 76-5-103;
52          (b) assault, as described in Section 76-5-102;
53          (c) criminal homicide, as described in Section 76-5-201;
54          (d) harassment, as described in Section 76-5-106;
55          (e) electronic communication harassment, as described in Section 76-9-201;
56          (f) kidnapping, child kidnapping, or aggravated kidnapping, as described in Sections
57     76-5-301, 76-5-301.1, and 76-5-302;
58          (g) mayhem, as described in Section 76-5-105;
59          (h) sexual offenses, as described in Title 76, Chapter 5, Part 4, Sexual Offenses, and
60     Section 76-5b-201, Sexual Exploitation of a Minor;
61          (i) stalking, as described in Section 76-5-106.5;
62          (j) unlawful detention or unlawful detention of a minor, as described in Section
63     76-5-304;
64          (k) violation of a protective order or ex parte protective order, as described in Section
65     76-5-108;
66          (l) any offense against property described in Title 76, Chapter 6, Part 1, Property
67     Destruction, Title 76, Chapter 6, Part 2, Burglary and Criminal Trespass, or Title 76, Chapter 6,
68     Part 3, Robbery;
69          (m) possession of a deadly weapon with intent to assault, as described in Section
70     76-10-507;
71          (n) discharge of a firearm from a vehicle, near a highway, or in the direction of any
72     person, building, or vehicle, as described in Section 76-10-508;
73          (o) disorderly conduct, as defined in Section 76-9-102, if a conviction of disorderly
74     conduct is the result of a plea agreement in which the defendant was originally charged with a
75     domestic violence offense otherwise described in this Subsection (4). Conviction of disorderly
76     conduct as a domestic violence offense, in the manner described in this Subsection (4)(o), does
77     not constitute a misdemeanor crime of domestic violence under 18 U.S.C. [Section] Sec. 921,
78     and is exempt from the provisions of the federal Firearms Act, 18 U.S.C. [Section] Sec. 921 et
79     seq.; or
80          (p) child abuse as described in Section 76-5-109.1.
81          (5) "Jail release agreement" means a written agreement:
82          (a) specifying and limiting the contact a person arrested for a domestic violence offense
83     may have with an alleged victim or other specified individuals; and
84          (b) specifying other conditions of release from jail as required in Subsection
85     77-36-2.5(2).
86          (6) "Jail release court order" means a written court order:
87          (a) specifying and limiting the contact a person arrested for a domestic violence offense
88     may have with an alleged victim or other specified individuals; and
89          (b) specifying other conditions of release from jail as required in Subsection
90     77-36-2.5(2).
91          (7) "Marital status" means married and living together, divorced, separated, or not
92     married.
93          (8) "Married and living together" means a man and a woman whose marriage was
94     solemnized under Section 30-1-4 or 30-1-6 and who are living in the same residence.
95          (9) "Not married" means any living arrangement other than married and living together,
96     divorced, or separated.
97          (10) "Pretrial protective order" means a written order:
98          (a) specifying and limiting the contact a person who has been charged with a domestic
99     violence offense may have with an alleged victim or other specified individuals; and
100          (b) specifying other conditions of release pursuant to Subsection 77-36-2.5[(3)(c)](2),
101     Subsection 77-36-2.6(3), or Section 77-36-2.7, pending trial in the criminal case.
102          (11) "Sentencing protective order" means a written order of the court as part of
103     sentencing in a domestic violence case that limits the contact a person who has been convicted
104     of a domestic violence offense may have with a victim or other specified individuals pursuant
105     to Sections 77-36-5 and 77-36-5.1.
106          (12) "Separated" means a man and a woman who have had their marriage solemnized
107     under Section 30-1-4 or 30-1-6 and who are not living in the same residence.
108          (13) "Victim" means a cohabitant who has been subjected to domestic violence.
109          Section 2. Section 77-36-2.5 is amended to read:
110          77-36-2.5. Conditions for release after arrest for domestic violence -- Jail release
111     agreements -- Jail release court orders.
112          (1) (a) Upon arrest for domestic violence, and before the person is released on bail,
113     recognizance, or otherwise, the person may not personally contact the alleged victim of
114     domestic violence.
115          (b) A person who violates Subsection (1)(a) is guilty of a class B misdemeanor.
116          (2) (a) [Upon] After an arrest for domestic violence, [a person] the offender may not be
117     released [on bail, recognizance, or otherwise prior to the close of the next court day following
118     the arrest, unless as a condition of that release the person is ordered by the court or agrees in
119     writing that until further order of the court, the person will:] before:
120          (i) the matter is submitted to a magistrate in accordance with Section 77-7-23; or
121          (ii) the offender signs a jail release agreement in accordance with Subsection (2)(d)(i).
122          [(a) have no personal contact with the alleged victim;]
123          [(b) not threaten or harass the alleged victim; and]
124          [(c) not knowingly enter onto the premises of the alleged victim's residence or any
125     premises temporarily occupied by the alleged victim.]
126          (b) The arresting officer shall ensure that the information presented to the magistrate
127     includes whether the victim has made a waiver described in Subsection (5)(a).
128          (c) If the magistrate determines there is probable cause to support the charge or charges
129     of domestic violence, the magistrate shall determine:
130          (i) whether grounds exist to hold the arrested person without bail, in accordance with
131     Section 77-20-1;
132          (ii) if no grounds exist to hold the arrested person without bail, whether any release
133     conditions, including electronic monitoring, are necessary to protect the victim; or
134          (iii) any bail that is required to guarantee the defendant's subsequent appearance in
135     court.
136          (d) (i) The magistrate may not release a person arrested for domestic violence before
137     the initial court appearance, before the court with jurisdiction over the offense for which the
138     person was arrested, unless the arrested person agrees in writing or the magistrate orders, as a
139     release condition, that, until the arrested person appears at the initial court appearance, the
140     person will not:
141          (A) have personal contact with the alleged victim;
142          (B) threaten or harass the alleged victim; or
143          (C) knowingly enter onto the premises of the alleged victim's residence or any premises
144     temporarily occupied by the alleged victim.
145          (ii) The magistrate shall schedule the appearance described in Subsection (2)(d)(i) to
146     take place no more than 96 hours after the time of the arrest.
147          (iii) The arrested person may make the appearance described in Subsection (2)(d)(i) by
148     video if the arrested person is not released.
149          (3) (a) If a person charged with domestic violence fails to appear at the time scheduled
150     by the magistrate to appear, as described in Subsection (2)(d), the person shall comply with the
151     release conditions described in Subsection (2)(d)(i) until the arrested person makes an initial
152     appearance.
153          (b) If the prosecutor has not filed charges against a person who was arrested for a
154     domestic violence offense and who appears in court at the time scheduled by the magistrate
155     under Subsection (2)(d), or by the court under Subsection (3)(b)(ii), the court:
156          (i) may, upon the motion of the prosecutor and after allowing the arrested person an
157     opportunity to be heard on the motion, extend the release conditions described in Subsection
158     (2)(d)(i) by no more than three court days; and
159          (ii) if the court grants the motion described in Subsection (3)(b)(i), shall order the
160     arrested person to appear at a time scheduled before the end of the granted extension.
161          [(3) (a) The] (4) Unless extended under Subsection (3), the jail release agreement or
162     [jail release court order] the magistrate order described in Subsection (2)(d)(i) expires at
163     midnight on the day on which the person arrested [appears in person or by video for
164     arraignment or an initial appearance.] is scheduled to appear, as described in Subsection (2)(d).
165          [(b) (i) If criminal charges have not been filed against the arrested person, the court
166     may, for good cause and in writing, extend the jail release agreement or jail release court order
167     beyond the time period under Subsection (3)(a) as provided in Subsection (3)(b)(ii).]
168          [(ii) (A) The court may extend a jail release agreement or jail release court order under
169     Subsection (3)(b)(i) to no longer than midnight of the third business day after the arrested
170     person's first court appearance.]
171          [(B) If criminal charges are filed against the arrested person within the three business
172     days under Subsection (3)(b)(ii)(A), the jail release agreement or the jail release court order
173     continues in effect until the arrested person appears in person or by video at the arrested
174     person's next scheduled court appearance.]
175          [(c) If criminal charges have been filed against the arrested person the court may, upon
176     the request of the prosecutor or the victim or upon the court's own motion, issue a pretrial
177     protective order.]
178          [(4) As a condition of release, the court may order the defendant to participate in an
179     electronic or other monitoring program and to pay the costs associated with the program.]
180          (5) (a) Subsequent to an arrest for domestic violence, an alleged victim may waive in
181     writing [any or all of] the release conditions described in Subsection (2)[(a) or (c)](d)(i)(A) or
182     (C). Upon waiver, those release conditions do not apply to the alleged perpetrator.
183          (b) A court or magistrate may modify the release conditions described in Subsection
184     (2)[(a) or (c)](d)(i), in writing or on the record, and only for good cause shown.
185          (6) (a) When a person is released pursuant to Subsection (2), the releasing agency shall
186     notify the arresting law enforcement agency of the release, conditions of release, and any
187     available information concerning the location of the victim. The arresting law enforcement
188     agency shall then make a reasonable effort to notify the victim of that release.
189          (b) (i) When a person is released pursuant to Subsection (2) based on a written jail
190     release agreement, the releasing agency shall transmit that information to the statewide
191     domestic violence network described in Section 78B-7-113.
192          (ii) When a person is released pursuant to [Subsection (2) or (3)] Subsections (2)
193     through (4) based upon a jail release court order or if a written jail release agreement is
194     modified pursuant to Subsection (5)(b), the court shall transmit that order to the statewide
195     domestic violence network described in Section 78B-7-113.
196          (iii) A copy of the jail release court order or written jail release agreement shall be
197     given to the person by the releasing agency before the person is released.
198          (c) This Subsection (6) does not create or increase liability of a law enforcement officer
199     or agency, and the good faith immunity provided by Section 77-36-8 is applicable.
200          (7) (a) If a law enforcement officer has probable cause to believe that a person has
201     violated a jail release court order or jail release agreement executed pursuant to Subsection (2)
202     the officer shall, without a warrant, arrest the alleged violator.
203          (b) Any person who knowingly violates a jail release court order or jail release
204     agreement executed pursuant to Subsection (2) is guilty as follows:
205          (i) if the original arrest was for a felony, an offense under this section is a third degree
206     felony; or
207          (ii) if the original arrest was for a misdemeanor, an offense under this section is a class
208     A misdemeanor.
209          (c) City attorneys may prosecute class A misdemeanor violations under this section.
210          (8) An individual who was originally arrested for a felony under this chapter and
211     released pursuant to this section may subsequently be held without bail if there is substantial
212     evidence to support a new felony charge against him.
213          (9) At the time an arrest is made for domestic violence [is made], the arresting officer
214     shall provide the alleged victim with written notice containing:
215          (a) the release conditions described in [Subsection (2)] Subsections (2) through (4), and
216     notice that [those] the alleged perpetrator will not be released, before appearing before the
217     court with jurisdiction over the offense for which the alleged perpetrator was arrested, unless:
218          (i) the alleged perpetrator enters into a written agreement to comply with the release
219     conditions; or
220          (ii) the magistrate orders the release conditions [shall be ordered by a court or must be
221     agreed to by the alleged perpetrator prior to release];
222          (b) notification of the penalties for violation of any jail release court order or any jail
223     release agreement executed under Subsection (2);
224          (c) notification that the alleged perpetrator is to personally appear in court on the next
225     day the court is open for business after the day of the arrest;
226          (d) the address of the appropriate court in the district or county in which the alleged
227     victim resides;
228          (e) the availability and effect of any waiver of the release conditions; and
229          (f) information regarding the availability of and procedures for obtaining civil and
230     criminal protective orders with or without the assistance of an attorney.
231          (10) At the time an arrest is made for domestic violence [is made], the arresting officer
232     shall provide the alleged perpetrator with written notice containing:
233          (a) notification that the alleged perpetrator may not contact the alleged victim before
234     being released;
235          (b) the release conditions described in [Subsection (2)] Subsections (2) through (4) and
236     notice that [those] the alleged perpetrator will not be released, before appearing before the
237     court with jurisdiction over the offense for which the alleged perpetrator was arrested, unless:
238          (i) the alleged perpetrator enters into a written agreement to comply with the release
239     conditions; or
240          (ii) the magistrate orders the release conditions [shall be ordered by a court or shall be
241     agreed to by the alleged perpetrator prior to release];
242          (c) notification of the penalties for violation of any jail release court order or any
243     written jail release agreement executed under Subsection (2); and
244          (d) notification that the alleged perpetrator is to personally appear in court on the next
245     day the court is open for business after the day of the arrest.
246          [(11) (a) If the alleged perpetrator fails to personally appear in court as scheduled, the
247     jail release court order or jail release agreement does not expire and continues in effect until the
248     alleged perpetrator makes the personal appearance in court as required by Section 77-36-2.6.]
249          [(b) If, when the alleged perpetrator personally appears in court as required by Section
250     77-36-2.6, criminal charges have not been filed against the arrested person, the court may allow
251     the jail release court order or jail release agreement to expire at midnight on the day of the
252     court appearance or may extend it for good cause.]
253          [(12)] (11) In addition to the provisions of Subsections (2) through [(8)] (10), because
254     of the unique and highly emotional nature of domestic violence crimes, the high recidivism rate
255     of violent offenders, and the demonstrated increased risk of continued acts of violence
256     subsequent to the release of an offender who has been arrested for domestic violence, it is the
257     finding of the Legislature that domestic violence crimes, as defined in Section 77-36-1, are
258     crimes for which bail may be denied if there is substantial evidence to support the charge, and
259     if the court finds by clear and convincing evidence that the alleged perpetrator would constitute
260     a substantial danger to an alleged victim of domestic violence if released on bail.
261          Section 3. Section 77-36-5 is amended to read:
262          77-36-5. Sentencing -- Restricting contact with victim -- Electronic monitoring --
263     Counseling -- Cost assessed against defendant -- Sentencing protective order.
264          (1) (a) When a defendant is found guilty of a crime involving domestic violence and a
265     condition of the sentence restricts the defendant's contact with the victim, a sentencing
266     protective order may be issued under Subsection 77-36-5.1(2) for the length of the defendant's
267     probation.
268          (b) (i) The sentencing protective order shall be in writing, and the prosecutor shall
269     provide a certified copy of that order to the victim.
270          (ii) The court shall transmit the sentencing protective order to the statewide domestic
271     violence network.
272          (c) Violation of a sentencing protective order issued pursuant to this Subsection (1) is a
273     class A misdemeanor.
274          (2) In determining its sentence the court, in addition to penalties otherwise provided by
275     law, may require the defendant to participate in an electronic or other type of monitoring
276     program.
277          (3) The court may also require the defendant to pay all or part of the costs of
278     counseling incurred by the victim and any children affected by or exposed to the domestic
279     violence offense, as well as the costs for the defendant's own counseling.
280          (4) The court shall:
281          (a) assess against the defendant, as restitution, any costs for services or treatment
282     provided to the victim and affected children of the victim or the defendant by the Division of
283     Child and Family Services under Section 62A-4a-106; and
284          (b) order those costs to be paid directly to the division or its contracted provider.
285          (5) The court [shall] may order the defendant to obtain and satisfactorily complete
286     treatment or therapy in a domestic violence treatment program, as defined in Section
287     62A-2-101, that is licensed by the Department of Human Services[, unless the court finds that
288     there is no licensed program reasonably available or that the treatment or therapy is not
289     necessary].