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S.B. 79
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5 AN ACT RELATING TO THE CRIMINAL CODE; CREATING CATEGORIES FOR
6 PURCHASE AND POSSESSION OF DANGEROUS WEAPONS; DEFINING VIOLENT
7 MISDEMEANORS FOR THE PURCHASE AND POSSESSION OF FIREARMS; ALLOWING
8 THE BUREAU OF CRIMINAL IDENTIFICATION TO ACCESS JUVENILE COURT
9 RECORDS FOR THE PURPOSE OF BACKGROUND CHECKS FOR FIREARM
10 PURCHASES; AND MAKING TECHNICAL CHANGES.
11 This act affects sections of Utah Code Annotated 1953 as follows:
12 AMENDS:
13 53-10-208, as last amended by Chapter 187 and renumbered and amended by Chapter 263,
14 Laws of Utah 1998
15 62A-12-247, as last amended by Chapter 161, Laws of Utah 1989
16 76-10-501, as last amended by Chapters 5, 97 and 366, Laws of Utah 1999
17 76-10-504, as last amended by Chapter 289, Laws of Utah 1997
18 76-10-509.6, as enacted by Chapter 10, Laws of Utah 1993, Second Special Session
19 76-10-526, as last amended by Chapter 227, Laws of Utah 1999
20 78-3a-206, as last amended by Chapter 377, Laws of Utah 1999
21 ENACTS:
22 53-10-208.1, Utah Code Annotated 1953
23 REPEALS AND REENACTS:
24 76-10-503, as last amended by Chapter 97, Laws of Utah 1999
25 Be it enacted by the Legislature of the state of Utah:
26 Section 1. Section 53-10-208 is amended to read:
27 53-10-208. Definition -- Offenses included on statewide warrant system --
28 Transportation fee to be included -- Statewide warrant system responsibility -- Quality
29 control -- Training -- Technical support -- Transaction costs.
30 (1) "Statewide warrant system" means the portion of the state court computer system that
31 is accessible by modem from the state mainframe computer and contains:
32 (a) records of criminal warrant information; and
33 (b) after notice and hearing, records of protective orders issued pursuant to:
34 (i) Title 30, Chapter 6, Cohabitant Abuse Act; or
35 (ii) Title 77, Chapter 36, Cohabitant Abuse Procedures Act.
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48 issued for felony offenses and class A, B, and C misdemeanor offenses in the state.
49 (ii) For each offense the division shall indicate whether the magistrate ordered under
50 Section 77-7-5 and Rule 6, Utah Rules of Criminal Procedure, that the accused appear in court.
51 (b) Infractions shall not be included on the statewide warrant system, including any
52 subsequent failure to appear warrants issued on an infraction.
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54 (a) ensure quality control of all warrants of arrest or commitment and protective orders
55 contained in the statewide warrant system by conducting regular validation checks with every clerk
56 of a court responsible for entering the information on the system;
57 (b) upon the expiration of the protective orders and in the manner prescribed by the
58 division, purge information regarding protective orders described in Subsection [
59 53-10-208.1 (3) within 30 days of the time after expiration;
60 (c) establish system procedures and provide training to all criminal justice agencies having
61 access to information contained on the state warrant system;
62 (d) provide technical support, program development, and systems maintenance for the
63 operation of the system; and
64 (e) pay data processing and transaction costs for state, county, and city law enforcement
65 agencies and criminal justice agencies having access to information contained on the state warrant
66 system.
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68 appropriation shall be paid on a pro rata basis by all agencies using the system during the fiscal
69 year.
70 (b) This subsection supersedes any conflicting provision in Subsection [
71 Section 2. Section 53-10-208.1 is enacted to read:
72 53-10-208.1. Magistrates and court clerks to supply information.
73 Every magistrate or clerk of a court responsible for court records in this state shall, within
74 30 days of the disposition and on forms and in the manner provided by the division, furnish the
75 division with information pertaining to:
76 (1) all dispositions of criminal matters, including:
77 (a) guilty pleas;
78 (b) convictions;
79 (c) dismissals;
80 (d) acquittals;
81 (e) pleas held in abeyance;
82 (f) judgments of not guilty by reason of insanity;
83 (g) judgments of guilty and mentally ill;
84 (h) findings of mental incompetence to stand trial; or
85 (i) current orders of civil commitment under the terms of Section 62A-12-234 ; or
86 (j) probations granted;
87 (2) the issuance, recall, cancellation, or modification of all warrants of arrest or
88 commitment as described in Rule 6, Utah Rules of Criminal Procedure and Section 78-32-4 , within
89 one day of the action and in a manner provided by the division; and
90 (3) protective orders issued after notice and hearing, pursuant to:
91 (a) Title 30, Chapter 6, Cohabitant Abuse Act; or
92 (b) Title 77, Chapter 36, Cohabitant Abuse Procedures Act.
93 Section 3. Section 62A-12-247 is amended to read:
94 62A-12-247. Confidentiality of information and records -- Exceptions -- Penalty.
95 (1) All certificates, applications, records, and reports made for the purpose of this part,
96 including those made on judicial proceedings for involuntary commitment, that directly or
97 indirectly identify a patient or former patient or an individual whose commitment has been sought
98 under this part, shall be kept confidential and may not be disclosed by any person except insofar
99 as:
100 (a) the individual identified or his legal guardian, if any, or, if a minor, his parent or legal
101 guardian shall consent;
102 (b) disclosure may be necessary to carry out [
103 (i) this part; or
104 (ii) Section 53-10-208.1 ; or
105 (c) a court may direct, upon its determination that disclosure is necessary for the conduct
106 of proceedings before it, and that failure to make the disclosure would be contrary to the public
107 interest.
108 (2) A person who [
109 information not authorized by this section is guilty of a class B misdemeanor.
110 Section 4. Section 76-10-501 is amended to read:
111 76-10-501. Definitions.
112 As used in this part:
113 (1) (a) "Concealed dangerous weapon" means a dangerous weapon that is covered, hidden,
114 or secreted in a manner that the public would not be aware of its presence and is readily accessible
115 for immediate use.
116 (b) A dangerous weapon shall not be considered a concealed dangerous weapon if it is a
117 firearm which is unloaded and is securely encased.
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124 conducted by a licensed firearms dealer on every purchaser of a handgun through the division or
125 the local law enforcement agency where the firearms dealer conducts business.
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127 use is capable of causing death or serious bodily injury. The following factors shall be used in
128 determining whether a knife, or any other item, object, or thing not commonly known as a
129 dangerous weapon is a dangerous weapon:
130 (i) the character of the instrument, object, or thing;
131 (ii) the character of the wound produced, if any;
132 (iii) the manner in which the instrument, object, or thing was used; and
133 (iv) the other lawful purposes for which the instrument, object, or thing may be used.
134 (b) "Dangerous weapon" does not include any explosive, chemical, or incendiary device
135 as defined by Section 76-10-306 .
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137 procedure, 18 U.S.C. 923 and engaged in the business of selling, leasing, or otherwise transferring
138 a handgun, whether the person is a retail or wholesale dealer, pawnbroker, or otherwise.
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140 of the Department of Public Safety, created in Section 53-10-103 .
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143 sawed-off rifle, or any device that could be used as a dangerous weapon from which is expelled
144 a projectile by action of an explosive.
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146 completed by a person purchasing, selling, or transferring a handgun from a dealer in the state.
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148 can be readily restored to fire, automatically more than one shot without manual reloading by a
149 single function of the trigger.
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151 or unloaded, from which any shot, bullet, or other missile can be discharged, the length of which,
152 not including any revolving, detachable, or magazine breech, does not exceed 12 inches.
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154 building set apart primarily for the purpose of worship in which religious services are held and the
155 main body of which is kept for that use and not put to any other use inconsistent with its primary
156 purpose.
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159 weapon is carried on the person or within such close proximity and in such a manner that it can
160 be retrieved and used as readily as if carried on the person.
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162 primary or secondary residence.
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164 barrels of fewer than 18 inches in length, or in the case of a rifle, having a barrel or barrels of fewer
165 than 16 inches in length, or any dangerous weapon made from a rifle or shotgun by alteration,
166 modification, or otherwise, if the weapon as modified has an overall length of fewer than 26
167 inches.
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169 held in a gun rack, or in a closed case or container, whether or not locked, or in a trunk or other
170 storage area of a motor vehicle, not including a glove box or console box.
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172 institution, officer, corporation, fund, division, office, committee, authority, laboratory, library,
173 unit, bureau, panel, or other administrative unit of the state.
174 (18) "Violent felony" means the same as defined in Section 76-3-203.5 .
175 (19) "Violent misdemeanor" means:
176 (a) a class A misdemeanor violation of Section 76-10-522 , alteration of number or mark
177 on pistol or revolver;
178 (b) a class A misdemeanor violation of Section 76-6-102 , arson;
179 (c) a class A misdemeanor violation of Section 76-5-102 , assault;
180 (d) a class A misdemeanor violation of Section 76-5-102.3 , assault against a school
181 employee;
182 (e) a class A misdemeanor violation of Section 76-5-102.4 , assault against a peace officer;
183 (f) a class A misdemeanor violation of Section 76-5-102.6 , assault on a correctional
184 officer;
185 (g) a class A or B misdemeanor violation of Section 76-10-504 , carrying a concealed
186 dangerous weapon;
187 (h) a class A misdemeanor violation of Section 76-5-109 , child abuse;
188 (i) a class A misdemeanor violation of Section 58-37c-11 , controlled substance precursor
189 act;
190 (j) a class A or B misdemeanor violation of Section 76-9-301 , cruelty to animals;
191 (k) a class B misdemeanor violation of Section 76-6-108 , damage to or interruption of
192 communication device;
193 (l) a class A misdemeanor violation of Section 58-37-8 , controlled substances act;
194 (m) a class B misdemeanor violation of Section 76-5-106 , harassment;
195 (n) a class A misdemeanor violation of Section 58-37c-20 , improper possession of
196 ephedrine or pseudoephedrine;
197 (o) a class A misdemeanor violation of Section 58-37c-19 , improper sales of crystal
198 iodine;
199 (p) a class B misdemeanor violation of Section 76-8-305 , interference with arresting
200 officer;
201 (q) a class A misdemeanor violation of Section 76-9-702.5 , lewdness involving a child;
202 (r) a class A misdemeanor violation of Section 76-5-206 , negligent homicide;
203 (s) a class A misdemeanor violation of Section 58-37a-5 , possession of drug paraphernalia
204 with intent to deliver;
205 (t) a class A misdemeanor violation of Section 76-10-503 , possession of a dangerous
206 weapon by a restricted person;
207 (u) a class A misdemeanor violation of Section 76-10-507 , possession of a dangerous
208 weapon with intent to assault;
209 (v) a class B misdemeanor violation of Section 76-10-529 , possession of dangerous
210 weapons, firearms, or explosives in airport secure areas;
211 (w) a class B misdemeanor violation of Section 53-5-704 , providing false information on
212 concealed firearms application;
213 (x) a class A misdemeanor violation of Section 76-5-401.1 , sexual abuse of a minor;
214 (y) a class A misdemeanor violation of Section 76-9-702 , sexual battery;
215 (z) a class A misdemeanor violation of Section 76-5-106.5 , stalking;
216 (aa) a class B misdemeanor violation of Section 76-5-107 , terroristic threat;
217 (bb) a class A misdemeanor violation of Section 76-6-406 , theft by extortion;
218 (cc) a class A misdemeanor violation of Section 76-10-506 , threatening with or using a
219 dangerous weapon in a fight or quarrel;
220 (dd) a class A misdemeanor violation of Section 76-8-311.3 , transportation or possession
221 of items prohibited in correctional and mental health facilities;
222 (ee) a class A misdemeanor violation of Section 76-6-204 , vehicle burglary;
223 (ff) a class A misdemeanor violation of Section 77-36-2.5 , violation of condition for
224 release after arrest for misdemeanor domestic violence; or
225 (gg) a class B misdemeanor violation of Section 76-10-528 , carrying a dangerous weapon
226 while under the influence of alcohol or a controlled substance.
227 Section 5. Section 76-10-503 is repealed and reenacted to read:
228 76-10-503. Restrictions on possession, purchase, transfer, and ownership of
229 dangerous weapons by certain persons.
230 (1) For purposes of this section:
231 (a) A Category I restricted person is a person who:
232 (i) has been convicted of any violent felony as defined in Section 76-3-203.5 ;
233 (ii) is on probation or parole for any felony;
234 (iii) is on parole from a secure facility as defined in Section 62A-7-101 ; or
235 (iv) within the last ten years has been adjudicated delinquent for an offense which if
236 committed by an adult would have been a violent felony as defined in Section 76-3-203.5 .
237 (b) A Category II restricted person is a person who:
238 (i) has been convicted of any felony;
239 (ii) within the last seven years has been adjudicated delinquent for an offense which if
240 committed by an adult would have been a felony;
241 (iii) is an unlawful user of a controlled substance or has been convicted of two or more
242 violations, arising from separate criminal incidents, one of which convictions is within the last
243 three years, of:
244 (A) Title 58, Chapter 37, Utah Controlled Substances Act;
245 (B) Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
246 (C) Title 58, Chapter 37b, Imitation Controlled Substances Act;
247 (D) Title 58, Chapter 37c, Utah Controlled Substance Precursor Act;
248 (E) Title 58, Chapter 37d, Clandestine Drug Lab Act;
249 (iv) has been found not guilty by reason of insanity;
250 (v) has been found guilty and mentally ill;
251 (vi) has been found mentally incompetent to stand trial;
252 (vii) is under current order of civil commitment under the terms of Section 62A-12-234 ;
253 (viii) is an alien who is illegally or unlawfully in the United States;
254 (ix) has been dishonorably discharged from the armed forces; or
255 (x) has renounced his citizenship after having been a citizen of the United States.
256 (c) A Category III restricted person is a person who, within the last three years:
257 (i) has been convicted of a class A misdemeanor which is an attempt, conspiracy, or
258 solicitation to commit a felony;
259 (ii) has been convicted of a violent misdemeanor as defined in Section 76-10-501 ; or
260 (iii) has been adjudicated delinquent for an offense which would have been a violent
261 misdemeanor if committed by an adult.
262 (2) A Category I restricted person who purchases, transfers, possesses, uses or has under
263 his custody or control:
264 (a) any firearm is guilty of a second degree felony; or
265 (b) any explosive, chemical, or incendiary device as those terms are defined in Section
266 76-10-306 or any dangerous weapon other than a firearm is guilty of a third degree felony.
267 (3) A Category II restricted person who purchases, transfers, possesses, uses or has under
268 his custody or control:
269 (a) any firearm is guilty of a third degree felony; or
270 (b) any explosive, chemical, or incendiary device as those terms are defined in Section
271 76-10-306 or any dangerous weapon other than a firearm is guilty of a class A misdemeanor.
272 (4) A Category III restricted person who purchases, transfers, possesses, uses or has under
273 his custody or control:
274 (a) any firearm is guilty of a class A misdemeanor; or
275 (b) any explosive, chemical, or incendiary device as those terms are defined in Section
276 76-10-306 , or any dangerous weapon other than a firearm is guilty of a class B misdemeanor.
277 (5) The exception authorized by Section 76-10-512 does not apply to a Category I or II
278 restricted person but does apply to a Category III restricted person.
279 (6) A person may be subject to the restrictions of more than one category at the same time.
280 Section 6. Section 76-10-504 is amended to read:
281 76-10-504. Carrying concealed dangerous weapon -- Penalties.
282 (1) Except as provided in Section 76-10-503 and in Subsections (2) and (3):
283 (a) a person who carries a concealed dangerous weapon, as defined in Section 76-10-501 ,
284 which is not a firearm on his person or one that is readily accessible for immediate use which is
285 not securely encased, as defined in this part, in a place other than his residence, property, or
286 business under his control is guilty of a class B misdemeanor; and
287 (b) a person without a valid concealed firearm permit who carries a concealed dangerous
288 weapon which is a firearm and that contains no ammunition is guilty of a class B misdemeanor,
289 but if the firearm contains ammunition the person is guilty of a class A misdemeanor.
290 (2) A person who carries concealed a sawed-off shotgun or a sawed-off rifle is guilty of
291 a second degree felony.
292 (3) If the concealed firearm is used in the commission of a [
293 felony as defined in Section [
294 person is guilty of a second degree felony.
295 (4) Nothing in Subsection (1) shall prohibit a person engaged in the lawful taking of
296 protected or unprotected wildlife as defined in Title 23, [
297 from carrying a concealed weapon or a concealed firearm with a barrel length of four inches or
298 greater as long as the taking of wildlife does not occur:
299 (a) within the limits of a municipality in violation of that municipality's ordinances; or
300 (b) upon the highways of the state as defined in Section 41-6-1 .
301 Section 7. Section 76-10-509.6 is amended to read:
302 76-10-509.6. Parent or guardian providing firearm to violent minor.
303 (1) A parent or guardian may not intentionally or knowingly provide a firearm to, or permit
304 the possession of a firearm by, any minor who has been convicted of a [
305 felony as defined in Section 76-3-203.5 or any minor who has been adjudicated in juvenile court
306 for an offense which would constitute a [
307 adult.
308 (2) Any person who violates this section is guilty of:
309 (a) a class A misdemeanor upon the first offense; and
310 (b) a third degree felony for each subsequent offense.
311 Section 8. Section 76-10-526 is amended to read:
312 76-10-526. Criminal background check prior to purchase of a firearm -- Fee --
313 Exemption for concealed firearm permit holders.
314 (1) A criminal background check required by this section shall only apply to the purchase
315 of a handgun until federal law requires the background check to extend to other firearms.
316 (2) At the time that federal law extends the criminal background check requirement to
317 other firearms, the division shall make rules to extend the background checks required under this
318 section to the other firearms.
319 (3) For purposes of this section, "valid permit to carry a concealed firearm" does not
320 include a temporary permit issued pursuant to Section 53-5-705 .
321 (4) To establish personal identification and residence in this state for purposes of this part,
322 a dealer shall require any person receiving a firearm to present:
323 (a) one photo identification on a form issued by a governmental agency of the state; and
324 (b) one other documentation of residence which must show an address identical to that
325 shown on the photo identification form.
326 (5) A criminal history background check is required for the sale of a firearm by a licensed
327 firearm dealer in the state.
328 (6) Any person, except a dealer, purchasing a firearm from a dealer shall consent in writing
329 to a criminal background check, on a form provided by the division. The form shall also contain
330 the following information:
331 (a) the dealer identification number;
332 (b) the name and address of the person receiving the firearm;
333 (c) the date of birth, height, weight, eye color, and hair color of the person receiving the
334 firearm; and
335 (d) the Social Security number or any other identification number of the person receiving
336 the firearm.
337 (7) (a) The dealer shall send the form required by Subsection (6) to the division
338 immediately upon its completion.
339 (b) No dealer shall sell or transfer any firearm to any person until the dealer has provided
340 the division with the information in Subsection (6) and has received approval from the division
341 under Subsection [
342 (8) The dealer shall make a request for criminal history background information by
343 telephone or other electronic means to the division and shall receive approval or denial of the
344 inquiry by telephone or other electronic means.
345 (9) When the dealer calls for or requests a criminal history background check, the division
346 shall:
347 (a) review the criminal history files, including juvenile court records, to determine if the
348 person is prohibited from purchasing, possessing, or transferring a firearm by state or federal law;
349 (b) inform the dealer that:
350 (i) the [
351 (ii) the person is approved for purchasing, possessing, or transferring a firearm;
352 (c) provide the dealer with a unique transaction number for that inquiry; and
353 (d) provide a response to the requesting dealer during the call for a criminal background,
354 or by return call, or other electronic means, without delay, except in case of electronic failure or
355 other circumstances beyond the control of the division, the division shall advise the dealer of the
356 reason for [
357 (10) The division shall not maintain any records of the criminal history background check
358 longer than 20 days from the date of the dealer's request if the division determines that the person
359 receiving the gun is not prohibited from purchasing, possessing, or transferring the firearm under
360 state or federal law. However, the division shall maintain a log of requests containing the dealer's
361 federal firearms number, the transaction number, and the transaction date for a period of 12
362 months.
363 (11) If the criminal history background check discloses information indicating that the
364 person attempting to purchase the firearm is prohibited from purchasing, possessing, or
365 transferring a firearm, the division shall inform the law enforcement agency in the jurisdiction
366 where the person resides.
367 (12) If a person is denied the right to purchase a firearm under this section, the person may
368 review his criminal history information and may challenge or amend the information as provided
369 in Section 53-10-108 .
370 (13) The division shall make rules as provided in Title 63, Chapter 46a, Utah
371 Administrative Rulemaking Act, to ensure the identity, confidentiality, and security of all records
372 provided by the division pursuant to this part are in conformance with the requirements of the
373 Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536 (1993).
374 (14) (a) All dealers shall collect a criminal history background check fee which is $7.50.
375 This fee remains in effect until changed by the division through the process under Section
376 63-38-3.2 .
377 (b) The dealer shall forward at one time all fees collected for criminal history background
378 checks performed during the month to the division by the last day of the month following the sale
379 of a firearm. The division shall deposit the fees in the General Fund as dedicated credits to cover
380 the cost of administering and conducting the criminal history background check program.
381 (15) A person with a concealed firearm permit issued pursuant to Title 53, Chapter 5, Part
382 7, Concealed Weapon Act, shall be exempt from the background check and corresponding fee
383 required in this section for the purchase of a firearm if:
384 (a) the person presents his concealed firearm permit to the dealer prior to purchase of the
385 firearm; and
386 (b) the dealer verifies with the division that the person's concealed firearm permit is valid.
387 Section 9. Section 78-3a-206 is amended to read:
388 78-3a-206. Court records -- Inspection.
389 (1) The court and the probation department shall keep records as required by the board and
390 the presiding judge.
391 (2) Court records shall be open to inspection by:
392 (a) the parents or guardian, other parties in the case, the attorneys, and agencies to which
393 custody of a minor has been transferred;
394 (b) for information relating to adult offenders alleged to have committed a sexual offense,
395 a felony or class A misdemeanor drug offense, or an offense against the person under Title 76,
396 Chapter 5, Offenses Against the Person, the State Office of Education for the purpose of evaluating
397 whether an individual should be permitted to obtain or retain a license as an educator or serve as
398 an employee or volunteer in a school, with the understanding that the office must provide the
399 individual with an opportunity to respond to any information gathered from its inspection of the
400 records before it makes a decision concerning licensure or employment; and
401 (c) the Division of Criminal Investigations and Technical Services, established in Section
402 53-10-103 , for the purpose of a criminal history background check for the purchase of a firearm
403 and establishing good character for issuance of a concealed firearm permit as provided in Section
404 53-5-704 .
405 (3) With the consent of the judge, court records may be inspected by the minor, by persons
406 having a legitimate interest in the proceedings, and by persons conducting pertinent research
407 studies.
408 (4) If a petition is filed charging a minor 14 years of age or older with an offense that
409 would be a felony if committed by an adult, the court shall make available to any person upon
410 request the petition, any adjudication or disposition orders, and the delinquency history summary
411 of the minor charged unless the records are closed by the court upon findings on the record for
412 good cause.
413 (5) Probation officers' records and reports of social and clinical studies are not open to
414 inspection, except by consent of the court, given under rules adopted by the board.
415 (6) (a) Any juvenile delinquency adjudication or disposition orders and the delinquency
416 history summary of any person charged as an adult with a felony offense shall be made available
417 to any person upon request.
418 (b) This provision does not apply to records that have been destroyed or expunged in
419 accordance with court rules.
420 (c) The court may charge a reasonable fee to cover the costs associated with retrieving a
421 requested record that has been archived.
Legislative Review Note
as of 11-22-99 4:07 PM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.
Office of Legislative Research and General Counsel
Committee Note
The Judiciary Interim Committee recommended this bill.
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