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First Substitute H.B. 303
8 LONG TITLE
9 General Description:
10 This bill modifies the Cohabitant Abuse Procedures Act regarding procedures, records,
11 protective orders, and jail release agreements and orders.
12 Highlighted Provisions:
13 This bill:
14 . provides time limits on protective orders and jail release agreements and orders, and
15 provides for judicial discretion for good cause;
16 . authorizes the court to issue a pretrial protective order if the defendant has been
17 charged with a domestic violence offense;
18 . amends terms to reflect judicial procedures regarding release of a defendant;
19 . provides additional definitions;
20 . provides that if a person charged with domestic violence is released, the person
21 shall receive a copy of the protective order or jail release agreement or order prior to
23 . requires that the arresting officer shall provide, at the time of the arrest:
24 . to the alleged victim, notification that release conditions may expire at midnight
25 of that day; and
26 . to the person charged with a domestic violence offense, information about the
27 requirement to appear in court;
28 . provides that the court may allow the jail release order or jail release agreement to
29 expire at midnight of the day the defendant appears in court, or may extend the
30 order or agreement for good cause;
31 . removes the requirement of a possible showing of future violence when the court
32 waives the requirement that the alleged victim's location be disclosed;
33 . requires that action regarding protective orders be transmitted to the statewide
34 domestic violence network;
35 . provides that any protective order related to a dismissed criminal domestic violence
36 case shall be dismissed;
37 . provides for a sentencing protective order to be issued for the duration of a domestic
38 violence defendant's probation and provides that violation of the order is a class A
39 misdemeanor; and
40 . requires the defendant to pay the costs of counseling for children who are affected
41 by the domestic violence offense, in addition to the current requirement to pay for
42 the victim's counseling.
43 Monies Appropriated in this Bill:
45 Other Special Clauses:
47 Utah Code Sections Affected:
49 77-36-1, as last amended by Laws of Utah 2008, Chapters 3 and 375
50 77-36-2.4, as last amended by Laws of Utah 2008, Chapter 3
51 77-36-2.5, as last amended by Laws of Utah 2008, Chapter 3
52 77-36-2.6, as last amended by Laws of Utah 2003, Chapter 68
53 77-36-2.7, as last amended by Laws of Utah 2009, Chapter 238
54 77-36-5, as last amended by Laws of Utah 2003, Chapter 68
55 77-36-5.1, as last amended by Laws of Utah 1996, Chapter 244
56 77-36-6, as last amended by Laws of Utah 2008, Chapter 3
58 Be it enacted by the Legislature of the state of Utah:
59 Section 1. Section 77-36-1 is amended to read:
60 77-36-1. Definitions.
61 As used in this chapter:
62 (1) "Cohabitant" has the same meaning as in Section 78B-7-102 .
63 (2) "Department" means the Department of Public Safety.
64 (3) "Divorced" means an individual who has obtained a divorce under Title 30, Chapter
65 3, Divorce.
66 (4) "Domestic violence" means any criminal offense involving violence or physical
67 harm or threat of violence or physical harm, or any attempt, conspiracy, or solicitation to
68 commit a criminal offense involving violence or physical harm, when committed by one
69 cohabitant against another. "Domestic violence" also means commission or attempt to commit,
70 any of the following offenses by one cohabitant against another:
71 (a) aggravated assault, as described in Section 76-5-103 ;
72 (b) assault, as described in Section 76-5-102 ;
73 (c) criminal homicide, as described in Section 76-5-201 ;
74 (d) harassment, as described in Section 76-5-106 ;
75 (e) electronic communication harassment, as described in Section 76-9-201 ;
76 (f) kidnapping, child kidnapping, or aggravated kidnapping, as described in Sections
77 76-5-301 , 76-5-301.1 , and 76-5-302 ;
78 (g) mayhem, as described in Section 76-5-105 ;
79 (h) sexual offenses, as described in Title 76, Chapter 5, Part 4, Sexual Offenses, and
80 Title 76, Chapter 5a, Sexual Exploitation of Children;
81 (i) stalking, as described in Section 76-5-106.5 ;
82 (j) unlawful detention, as described in Section 76-5-304 ;
83 (k) violation of a protective order or ex parte protective order, as described in Section
84 76-5-108 ;
85 (l) any offense against property described in Title 76, Chapter 6, Part 1, Property
86 Destruction, 2, Burglary and Criminal Trespass, or 3, Robbery;
87 (m) possession of a deadly weapon with intent to assault, as described in Section
88 76-10-507 ;
89 (n) discharge of a firearm from a vehicle, near a highway, or in the direction of any
90 person, building, or vehicle, as described in Section 76-10-508 ;
91 (o) disorderly conduct, as defined in Section 76-9-102 , if a conviction of disorderly
92 conduct is the result of a plea agreement in which the defendant was originally charged with
93 any of the domestic violence offenses otherwise described in this Subsection (2). Conviction
94 of disorderly conduct as a domestic violence offense, in the manner described in this
95 Subsection (2)(o), does not constitute a misdemeanor crime of domestic violence under 18
96 U.S.C. Section 921, and is exempt from the provisions of the federal Firearms Act, 18 U.S.C.
97 Section 921 et seq.; or
98 (p) child abuse as described in Section 76-5-109.1 .
99 (5) "Jail release agreement" means a written agreement:
100 (a) specifying and limiting the contact a person arrested for a domestic violence offense
101 may have with an alleged victim or other specified individuals; and
102 (b) specifying other conditions of release from jail as required in Subsection 77-36-2.5
104 (6) "Jail release court order" means a written court order:
105 (a) specifying and limiting the contact a person arrested for a domestic violence offense
106 may have with an alleged victim or other specified individuals; and
107 (b) specifying other conditions of release from jail as required in Subsection
108 77-36-2.5 (1).
112 solemnized under Section 30-1-4 or 30-1-6 and who are living in the same residence.
114 together, divorced, or separated.
115 (10) "Pretrial protective order" means a written order:
116 (a) specifying and limiting the contact a person who has been charged with a domestic
117 violence offense may have with an alleged victim or other specified individuals; and
118 (b) specifying other conditions of release pursuant to Subsection 77-36-2.5 (2)(c),
119 Subsection 77-36-26 (3), or Section 77-36-2.7 , pending trial in the criminal case.
120 (11) "Sentencing protective order" means a written order of the court as part of
121 sentencing in a domestic violence case that limits the contact a person who has been convicted
122 of a domestic violence offense may have with a victim or other specified individuals pursuant
123 to Sections 77-36-5 and 77-36-5.1 .
125 solemnized under Section 30-1-4 or 30-1-6 and who are not living in the same residence.
127 Section 2. Section 77-36-2.4 is amended to read:
128 77-36-2.4. Violation of protective orders -- Mandatory arrest -- Penalties.
129 (1) A law enforcement officer shall, without a warrant, arrest an alleged perpetrator
130 whenever there is probable cause to believe that the alleged perpetrator has violated any of the
131 provisions of an ex parte protective order or protective order.
132 (2) (a) Intentional or knowing violation of any ex parte protective order or protective
133 order is a class A misdemeanor, in accordance with Section 76-5-108 , except where a greater
134 penalty is provided in this chapter, and is a domestic violence offense, pursuant to Section
135 77-36-1 .
136 (b) Second or subsequent violations of ex parte protective orders or protective orders
137 carry increased penalties, in accordance with Section 77-36-1.1 .
138 (3) As used in this section, "ex parte protective order" or "protective order" includes:
139 (a) any protective order or ex parte protective order issued under Title 78B, Chapter 7,
140 Part 1, Cohabitant Abuse Act[
141 (b) any jail release agreement, jail release court order, pretrial protective order, or
142 sentencing protective order issued under Title 77, Chapter 36, Cohabitant Abuse Procedures
145 78B, Chapter 7, Part 2, Child Protective Orders; or
147 Uniform Interstate Enforcement of Domestic Violence Protection Orders Act.
148 Section 3. Section 77-36-2.5 is amended to read:
149 77-36-2.5. Conditions for release after arrest for domestic violence -- Jail release
150 agreements -- Jail release court orders.
151 (1) Upon arrest for domestic violence, a person may not be released on bail,
152 recognizance, or otherwise prior to the close of the next court day following the arrest, unless
153 as a condition of that release [
154 until [
155 (a) have no personal contact with the alleged victim;
156 (b) not threaten or harass the alleged victim; and
157 (c) not knowingly enter onto the premises of the alleged victim's residence or any
158 premises temporarily occupied by the alleged victim.
159 (2) (a) The jail release agreement or jail release court order expires at midnight on the
160 day on which the person arrested appears in person or by video for arraignment or an initial
162 (b) (i) If criminal charges have not been filed against the arrested person, the court
163 may, for good cause and in writing, extend the jail release agreement or jail release court order
164 beyond the time period under Subsection (2)(a) as provided in Subsection (2)(b)(ii).
165 (ii) (A) The court may extend a jail release agreement or jail release court order under
166 Subsection (2)(b)(i) to no longer than midnight of the third business day after the arrested
167 person's first court appearance.
168 (B) If criminal charges are filed against the arrested person within the three business
169 days under Subsection (2)(b)(ii)(A), the jail release agreement or the jail release court order
170 continues in effect until the arrested person appears in person or by video at the arrested
171 person's next scheduled court appearance.
172 (c) If criminal charges have been filed against the arrested person the court may, upon
173 the request of the prosecutor or the victim or upon the court's own motion, issue a pretrial
174 protective order.
176 an electronic or other monitoring program and to pay the costs associated with the program.
178 waive in writing any or all of the [
179 (1)(a) or (c). Upon waiver, those [
180 alleged perpetrator.
181 (b) A court or magistrate may modify the [
182 in Subsections (1)(a) or (c), in writing or on the record, and only for good cause shown.
184 releasing agency shall notify the arresting law enforcement agency of the release, conditions of
185 release, and any available information concerning the location of the victim. The arresting law
186 enforcement agency shall then make a reasonable effort to notify the victim of that release.
187 (b) (i) When a person is released pursuant to Subsection (1) based on a written jail
188 release agreement, the releasing agency shall transmit that information to the statewide
189 domestic violence network described in Section 78B-7-113 .
190 (ii) When a person is released pursuant to Subsection (1) or (2) based upon a [
192 (4)(b), the court shall transmit that order to the statewide domestic violence network described
193 in Section 78B-7-113 .
194 (iii) A copy of the jail release court order or written jail release agreement shall be
195 given to the person by the releasing agency before the person is released.
196 (c) This Subsection [
197 officer or agency, and the good faith immunity provided by Section 77-36-8 is applicable.
199 violated a jail release court order or jail release agreement executed pursuant to Subsection (1)
200 the officer shall, without a warrant, arrest the alleged violator.
201 (b) Any person who knowingly violates a [
202 agreement executed pursuant to Subsection (1) [
203 (i) if the original arrest was for a felony, an offense under this section is a third degree
204 felony; or
205 (ii) if the original arrest was for a misdemeanor, an offense under this section is a class
206 A misdemeanor.
207 (c) City attorneys may prosecute class A misdemeanor violations under this section.
209 released pursuant to this section may subsequently be held without bail if there is substantial
210 evidence to support a new felony charge against him.
212 provide the alleged victim with written notice containing [
213 (a) the [
214 those [
215 alleged perpetrator prior to release;
216 (b) notification of the penalties for violation of [
217 jail release agreement executed under Subsection (1);
220 (c) notification that the alleged perpetrator is to personally appear in court on the next
221 day the court is open for business after the day of the arrest;
222 (d) the address of the appropriate court in the district or county in which the alleged
223 victim resides;
224 (e) the availability and effect of any waiver of the [
226 (f) information regarding the availability of and procedures for obtaining civil and
227 criminal protective orders with or without the assistance of an attorney.
229 provide the alleged perpetrator with written notice containing [
230 (a) the [
231 those [
232 by the alleged perpetrator prior to release;
233 (b) notification of the penalties for violation of [
234 written jail release agreement executed under Subsection (1); and
237 (c) notification that the alleged perpetrator is to personally appear in court on the next
238 day the court is open for business after the day of the arrest;
239 (10) (a) If the alleged perpetrator fails to personally appear in court as scheduled, the
240 jail release court order or jail release agreement does not expire and continues in effect until the
241 alleged perpetrator makes the personal appearance in court as required by Section 77-36-2.6 .
242 (b) If, when the alleged perpetrator personally appears in court as required by Section
243 77-36-2.6 , criminal charges have not been filed against the arrested person, the court may allow
244 the jail release court order or jail release agreement to expire at midnight on the day of the
245 court appearance or may extend it for good cause.
247 the unique and highly emotional nature of domestic violence crimes, the high recidivism rate of
248 violent offenders, and the demonstrated increased risk of continued acts of violence subsequent
249 to the release of an offender who has been arrested for domestic violence, it is the finding of
250 the Legislature that domestic violence crimes, as defined in Section 77-36-1 , are crimes for
251 which bail may be denied if there is substantial evidence to support the charge, and if the court
252 finds by clear and convincing evidence that the alleged perpetrator would constitute a
253 substantial danger to an alleged victim of domestic violence if released on bail. [
256 Section 4. Section 77-36-2.6 is amended to read:
257 77-36-2.6. Appearance of defendant required -- Determinations by court --
258 Pretrial protective order.
259 (1) A defendant who has been arrested for an offense involving domestic violence shall
260 appear in person or by video before the court or a magistrate within one judicial day after the
262 (2) A defendant who has been charged by citation, indictment, or information with an
263 offense involving domestic violence but has not been arrested, shall appear before the court in
264 person for arraignment or initial appearance as soon as practicable, but no later than 14 days
265 after the next day on which court is in session following the issuance of the citation or the
266 filing of the indictment or information.
267 (3) At the time of an appearance under Subsection (1) or (2), the court shall determine
268 the necessity of imposing a pretrial protective order or other condition of pretrial release
269 including, but not limited to, participating in an electronic or other type of monitoring program,
270 and shall state its findings and determination in writing.
271 (4) Appearances required by this section are mandatory and may not be waived.
272 Section 5. Section 77-36-2.7 is amended to read:
273 77-36-2.7. Dismissal -- Diversion prohibited -- Plea in abeyance -- Pretrial
274 protective order pending trial.
275 (1) Because of the serious nature of domestic violence, the court, in domestic violence
277 (a) may not dismiss any charge or delay disposition because of concurrent divorce or
278 other civil proceedings;
279 (b) may not require proof that either party is seeking a dissolution of marriage before
280 instigation of criminal proceedings;
281 (c) shall waive any requirement that the victim's location be disclosed other than to the
282 defendant's attorney[
283 order the defendant's attorney not to disclose the victim's location to [
284 (d) shall identify, on the docket sheets, the criminal actions arising from acts of
285 domestic violence;
286 (e) may dismiss a charge on stipulation of the prosecutor and the victim; and
287 (f) may hold a plea in abeyance, in accordance with the provisions of Chapter 2a, Pleas
288 in Abeyance, making treatment or any other requirement for the defendant a condition of that
290 (2) When the court holds a plea in abeyance in accordance with Subsection (1)(f), the
291 case against a perpetrator of domestic violence may be dismissed only if the perpetrator
292 successfully completes all conditions imposed by the court. If the defendant fails to complete
293 any condition imposed by the court under Subsection (1)(f), the court may accept the
294 defendant's plea.
295 (3) (a) Because of the likelihood of repeated violence directed at those who have been
296 victims of domestic violence in the past, when any defendant is charged with a crime involving
297 domestic violence, the court may, during any court hearing where the defendant is present,
298 issue [
299 (i) enjoining the defendant from threatening to commit or committing acts of domestic
300 violence or abuse against the victim and any designated family or household member;
301 (ii) prohibiting the defendant from harassing, telephoning, contacting, or otherwise
302 communicating with the victim, directly or indirectly;
303 (iii) removing and excluding the defendant from the victim's residence and the
304 premises of the residence;
305 (iv) ordering the defendant to stay away from the residence, school, place of
306 employment of the victim, and the premises of any of these, or any specified place frequented
307 by the victim and any designated family member; and
308 (v) ordering any other relief that the court considers necessary to protect and provide
309 for the safety of the victim and any designated family or household member.
310 (b) Violation of an order issued pursuant to this section is punishable as follows:
311 (i) if the original arrest or subsequent charge filed is a felony, an offense under this
312 section is a third degree felony; and
313 (ii) if the original arrest or subsequent charge filed is a misdemeanor, an offense under
314 this section is a class A misdemeanor.
315 (c) (i) The court shall provide the victim with a certified copy of any pretrial protective
316 order that has been issued [
318 (ii) The court shall also transmit the pretrial protective order to the statewide domestic
319 violence network.
320 (d) Issuance of a pretrial or sentencing protective order supercedes a written jail release
321 agreement or a written jail release court order issued by the court at the time of arrest.
322 (4) (a) When a court dismisses criminal charges or a prosecutor moves to dismiss
323 charges against a defendant accused of a domestic violence offense, the specific reasons for
324 dismissal shall be recorded in the court file and made a part of the statewide domestic violence
325 network described in Section 78B-7-113 .
326 (b) The court shall transmit the dismissal to the statewide domestic violence network.
327 (c) Any pretrial protective orders, including jail release court orders and jail release
328 agreements, related to the dismissed domestic violence criminal charge shall also be dismissed.
329 (5) When the privilege of confidential communication between spouses, or the
330 testimonial privilege of spouses is invoked in any criminal proceeding in which a spouse is the
331 victim of an alleged domestic violence offense, the victim shall be considered to be an
332 unavailable witness under the Utah Rules of Evidence.
333 (6) The court may not approve diversion for a perpetrator of domestic violence.
334 Section 6. Section 77-36-5 is amended to read:
335 77-36-5. Sentencing -- Restricting contact with victim -- Electronic monitoring --
336 Counseling -- Cost assessed against defendant -- Sentencing protective order.
337 (1) (a) When a defendant is found guilty of a crime involving domestic violence and a
338 condition of the sentence restricts the defendant's contact with the victim, [
339 protective order may be issued [
340 Subsection 77-36-5.1 (2) for the length of the defendant's probation. [
341 (b) (i) The sentencing protective order shall be in writing, and the prosecutor shall
342 provide a certified copy of that order to the victim.
343 (ii) The court shall transmit the sentencing protective order to the statewide domestic
344 violence network.
345 (c) Violation of a sentencing protective order issued pursuant to this Subsection (1) is a
346 class A misdemeanor.
347 (2) In determining its sentence the court, in addition to penalties otherwise provided by
348 law, may require the defendant to participate in an electronic or other type of monitoring
350 (3) The court may also require the defendant to pay all or part of the costs of
351 counseling incurred by the victim and any children affected by or exposed to the domestic
352 violence offense, as well as the costs for the defendant's own counseling.
353 (4) The court shall:
354 (a) assess against the defendant, as restitution, any costs for services or treatment
355 provided to the [
356 the Division of Child and Family Services under Section 62A-4a-106 ; and
357 (b) order those costs to be paid directly to the division or its contracted provider.
358 (5) The court shall order the defendant to obtain and satisfactorily complete treatment
359 or therapy in a domestic violence treatment program, as defined in Section 62A-2-101 , that is
360 licensed by the Department of Human Services, unless the court finds that there is no licensed
361 program reasonably available or that the treatment or therapy is not necessary.
362 Section 7. Section 77-36-5.1 is amended to read:
363 77-36-5.1. Conditions of probation for person convicted of domestic violence
365 (1) Before any perpetrator who has been convicted of a domestic violence offense may
366 be placed on probation, the court shall consider the safety and protection of the victim and any
367 member of the victim's family or household.
368 (2) The court may condition probation or a plea in abeyance on the perpetrator's
369 compliance with one or more orders of the court, which may include[
371 (a) enjoining the perpetrator from threatening to commit or committing acts of
372 domestic violence against the victim or other family or household member;
373 (b) prohibiting the perpetrator from harassing, telephoning, contacting, or otherwise
374 communicating with the victim, directly or indirectly;
375 (c) requiring the perpetrator to stay away from the victim's residence, school, place of
376 employment, and the premises of any of these, or a specified place frequented regularly by the
377 victim or any designated family or household member;
378 (d) prohibiting the perpetrator from possessing or consuming alcohol or controlled
380 (e) prohibiting the perpetrator from purchasing, using, or possessing a firearm or other
381 specified weapon;
382 (f) directing the perpetrator to surrender any weapons [
384 (g) directing the perpetrator to participate in and complete, to the satisfaction of the
385 court, a program of intervention for perpetrators, treatment for alcohol or substance abuse, or
386 psychiatric or psychological treatment;
387 (h) directing the perpetrator to pay restitution to the victim; and
388 (i) imposing any other condition necessary to protect the victim and any other
389 designated family or household member or to rehabilitate the perpetrator.
390 (3) The perpetrator is responsible for the costs of any condition of probation, according
391 to [
392 (4) (a) Adult Probation and Parole, or other provider, shall immediately report to the
393 court and notify the victim of any [
394 the perpetrator, the perpetrator's failure to comply with any condition imposed by the court, and
395 any [
396 order issued by the court.
397 (b) Notification of the victim under Subsection (4)(a) shall consist of a good faith
398 reasonable effort to provide prompt notification, including mailing a copy of the notification to
399 the last-known address of the victim.
400 (5) The court shall transmit all dismissals, terminations, and expirations of pretrial and
401 sentencing criminal protective orders issued by the court to the statewide domestic violence
403 Section 8. Section 77-36-6 is amended to read:
404 77-36-6. Enforcement of orders.
405 (1) Each law enforcement agency in this state shall enforce all orders of the court
406 issued pursuant to the requirements and procedures described in this chapter, and shall enforce:
407 (a) all protective orders and ex parte protective orders issued pursuant to Title 78B,
408 Chapter 7, Part 1, Cohabitant Abuse Act; [
409 (b) jail release agreements, jail release court orders, pretrial protective orders, and
410 sentencing protective orders; and
412 Uniform Interstate Enforcement of Domestic Violence Protection Orders Act.
413 (2) The requirements of this section apply statewide, regardless of the jurisdiction in
414 which the order was issued or the location of the victim or the perpetrator.
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