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S.B. 145
This document includes Senate Committee Amendments incorporated into the bill on Mon, Feb 11, 2013 at 9:13 AM by lpoole. --> This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Mon, Feb 25, 2013 at 3:26 PM by lpoole. --> This document includes House Committee Amendments incorporated into the bill on Tue, Mar 5, 2013 at 11:33 AM by lerror. --> 1
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7 LONG TITLE
8 General Description:
9 This bill enacts Powers and Duties of County and District Attorney.
10 Highlighted Provisions:
11 This bill:
12 . repeals Title 17, Chapter 18, County Attorney, and replaces it with Title 17, Chapter
13 18a, Powers and Duties of County and District Attorney, including:
14 . enacting general provisions;
15 . enacting provisions related to the duties of a county and district attorney;
16 . enacting provisions regulating qualifications and term of office;
17 . enacting provisions related to the duties of a public prosecutor;
18 . enacting provisions related to the duties of civil counsel;
19 . enacting provisions related to general duties and prohibited acts;
20 . enacting provisions related to a prosecution district; and
21 . enacting provisions related to ethical responsibilities; and
22 . makes technical and conforming amendments.
23 Money Appropriated in this Bill:
24 None
25 Other Special Clauses:
26 None
27 Utah Code Sections Affected:
28
29 4-2-11, as last amended by Laws of Utah 1993, Chapter 38
30 17-16-1, as last amended by Laws of Utah 1999, Chapter 206
31 17-16-2.5, as enacted by Laws of Utah 1993, Chapter 38
32 19-5-115, as last amended by Laws of Utah 2012, Chapter 360
33 19-6-113, as last amended by Laws of Utah 2008, Chapter 3
34 20A-1-509.2, as enacted by Laws of Utah 1997, Chapter 139
35 35A-1-501, as last amended by Laws of Utah 1999, Chapter 132
36 39-1-50, as last amended by Laws of Utah 1993, Chapter 38
37 62A-3-309, as last amended by Laws of Utah 2008, Chapter 91
38 62A-4a-405, as last amended by Laws of Utah 2008, Chapter 299
39 65A-3-3, as last amended by Laws of Utah 2012, Chapter 361
40 67-5-1, as last amended by Laws of Utah 2011, Chapter 342
41 77-22a-1, as last amended by Laws of Utah 1993, Chapter 38
42 77-22b-1, as enacted by Laws of Utah 1997, Chapter 296
43 77-23a-10, as last amended by Laws of Utah 2010, Chapter 324
44 78A-6-602, as last amended by Laws of Utah 2010, Chapter 38
45 78A-6-1002, as renumbered and amended by Laws of Utah 2008, Chapter 3
46 ENACTS:
47 17-18a-101, Utah Code Annotated 1953
48 17-18a-102, Utah Code Annotated 1953
49 17-18a-201, Utah Code Annotated 1953
50 17-18a-202, Utah Code Annotated 1953
51 17-18a-203, Utah Code Annotated 1953
52 17-18a-204, Utah Code Annotated 1953
53 17-18a-301, Utah Code Annotated 1953
54 17-18a-302, Utah Code Annotated 1953
55 17-18a-401, Utah Code Annotated 1953
56 17-18a-402, Utah Code Annotated 1953
57 17-18a-403, Utah Code Annotated 1953
58 17-18a-404, Utah Code Annotated 1953
59
60 17-18a-501, Utah Code Annotated 1953
61 17-18a-502, Utah Code Annotated 1953
62 17-18a-503, Utah Code Annotated 1953
63 17-18a-504, Utah Code Annotated 1953
64 17-18a-505, Utah Code Annotated 1953
65 17-18a-601, Utah Code Annotated 1953
66 17-18a-602, Utah Code Annotated 1953
67 17-18a-603, Utah Code Annotated 1953
68 17-18a-604, Utah Code Annotated 1953
69 17-18a-605, Utah Code Annotated 1953
70 17-18a-701, Utah Code Annotated 1953
71 17-18a-702, Utah Code Annotated 1953
72 17-18a-703, Utah Code Annotated 1953
73 17-18a-801, Utah Code Annotated 1953
74 17-18a-802, Utah Code Annotated 1953
75 17-18a-803, Utah Code Annotated 1953
76 REPEALS:
77 17-18-1, as last amended by Laws of Utah 2002, Chapter 130
78 17-18-1.5, as last amended by Laws of Utah 2002, Chapter 130
79 17-18-1.6, as last amended by Laws of Utah 2011, Chapter 154
80 17-18-1.7, as last amended by Laws of Utah 2002, Chapter 130
81 17-18-1.9, as last amended by Laws of Utah 2011, Chapter 297
82 17-18-2, as last amended by Laws of Utah 2002, Chapter 185
83 17-18-4, as enacted by Laws of Utah 1957, Chapter 34
84 17-18-5, as last amended by Laws of Utah 1997, Chapter 139
85
86 Be it enacted by the Legislature of the state of Utah:
87 Section 1. Section 4-2-11 is amended to read:
88 4-2-11. Attorney general legal advisor for department -- County or district
89 attorney may bring action upon request of department for violations of title.
90
91 department and its representatives in all actions and proceedings brought against it.
92 (2) The county attorney or the district attorney as provided under Sections [
93
94 arises or a public offense occurs may bring civil or criminal action, upon request of the
95 department, to enforce the laws, standards, orders, and rules of the department or to prosecute
96 violations of this title. If the county attorney or district attorney fails to act, the department may
97 request the attorney general to bring an action on behalf of the department.
98 Section 2. Section 17-16-1 is amended to read:
99 17-16-1. Eligibility and residency requirements for county, district, precinct, or
100 prosecution district office.
101 (1) A person filing a declaration of candidacy for a county, district, precinct, or
102 prosecution district office shall:
103 (a) be a United States citizen;
104 (b) except as provided in [
105 respect to the office of county attorney or district attorney, as of the date of the election, have
106 been a resident for at least one year of the county, district, precinct, or prosecution district in
107 which the person seeks office [
108 (c) be a registered voter in the county, district, precinct, or prosecution district in which
109 the person seeks office.
110 (2) (a) A county, district, precinct, or prosecution district officer shall maintain
111 residency within the county, district, precinct, or prosecution district in which [
112 was elected during [
113 (b) If a county, district, precinct, or prosecution district officer establishes [
114 officer's principal place of residence as provided in Section 20A-2-105 outside the county,
115 district, precinct, or prosecution district in which [
116 automatically vacant.
117 Section 3. Section 17-16-2.5 is amended to read:
118 17-16-2.5. Creation of Office of District Attorney.
119 For each prosecution district created [
120 Chapter 18a, Part 7, Prosecution District, there is created the Office of District Attorney.
121
122
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124 17-18a-101. Title.
125 This chapter is known as "Powers and Duties of County and District Attorney."
126 Section 5. Section 17-18a-102 is enacted to read:
127 17-18a-102. Definitions.
128 (1) "Attorney" means a county attorney described in Section 17-18a-301 or a district
129 attorney described in Section 17-18a-301 .
130 (2) "Prosecution district" means a district created under Part 7, Prosecution District.
131 Section 6. Section 17-18a-201 is enacted to read:
132
133 17-18a-201. County and district attorney duties.
134 The duties, functions, and responsibilities of a county attorney or district attorney,
135 acting as a public prosecutor or as civil counsel, are as provided in this chapter.
136 Section 7. Section 17-18a-202 is enacted to read:
137 17-18a-202. County attorney powers and functions.
138 (1) Except within a county that is located in a prosecution district, the county attorney:
139 (a) is a public prosecutor for the county; and
140 (b) shall perform each public prosecutor and civil counsel duty in accordance with this
141 chapter or as otherwise required by law.
142 (2) In a county that is located within a prosecution district, the county attorney:
143 (a) is the civil counsel for the county; and
144 (b) shall perform each civil counsel duty in the county or prosecution district in
145 accordance with this chapter or as otherwise required by law.
146 Section 8. Section 17-18a-203 is enacted to read:
147 17-18a-203. District attorney powers and functions.
148 In a county that is located within a prosecution district, the district attorney:
149 (1) is a public prosecutor for the county; and
150 (2) shall perform each public prosecutor duty in accordance with this chapter or as
151 otherwise required by law.
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152
Section 9.
Section
17-18a-204
is enacted to read:152
153 17-18a-204. Consolidated office.
154 Within a prosecution district, the duties and responsibilities of the district attorney and
155 county attorney may be consolidated into one office as provided in Section 17-16-3 .
156 Section 10. Section 17-18a-301 is enacted to read:
157
158 17-18a-301. County officers.
159 (1) The county attorney is an elected officer as described in Section 17-53-101 .
160 (2) (a) If the boundaries of a prosecution district are located entirely within one county,
161 the district attorney of the prosecution district is an elected officer of that county.
162 (b) If the boundaries of a prosecution district include more than one county, the
163 interlocal agreement that creates that prosecution district in accordance with Section
164 17-18a-602 may designate the district attorney as an elected officer in one or more of the
165 counties in which the prosecution district is located.
166 (3) The district attorney:
167 (a) is a full-time H. [
168 (b) may not engage in the private practice of law.
169 (4) A county attorney may:
170 (a) serve as a part-time employee; and
171 (b) engage in the private practice of law, subject to Section 17-18a-605 and the Rules
172 of Professional Conduct.
173 Section 11. Section 17-18a-302 is enacted to read:
174 17-18a-302. Qualifications.
175 (1) A person filing a declaration of candidacy for the office of county or district
176 attorney shall be:
177 (a) a United States citizen;
178 (b) an attorney licensed to practice law in the state;
179 (c) an active member of the Utah State Bar in good standing;
180 (d) except as provided in Subsection (2), a registered voter in the county or prosecution
181 district in which the attorney is elected to office; and
182 (e) except as provided in Subsection (2), as of the date of election, a resident for at
183
184 (2) A person appointed to the office of county or district attorney in accordance with
185 Section 20A-1-509.2 shall be:
186 (a) a United States citizen;
187 (b) an attorney licensed to practice law in the state; and
188 (c) an active member of the Utah State Bar in good standing.
189 Section 12. Section 17-18a-401 is enacted to read:
190
191 17-18a-401. Public prosecutor powers and duties.
192 An attorney who serves as a public prosecutor shall:
193 (1) except for a prosecution undertaken by a city attorney under Section 10-3-928 ,
194 conduct, on behalf of the state, all prosecutions for a public offense committed within a county
195 or prosecution district;
196 (2) conduct, on behalf of the county, all prosecutions for a public offense in violation
197 of a county criminal ordinance; and
198 (3) perform all other duties and responsibilities as required by law.
199 Section 13. Section 17-18a-402 is enacted to read:
200 17-18a-402. Pretrial responsibilities.
201 (1) (a) A public prosecutor shall:
202 (i) institute proceedings before the proper court:
203 (A) for the arrest of a person charged with a public offense; or
204 (B) if the prosecutor has probable cause to believe that a public offense has been
205 committed and a grand jury has been convened by a court;
206 (ii) draw all indictments and information for offenses against:
207 (A) the laws of the state occurring within the county; and
208 (B) the criminal ordinances of the county;
209 (iii) cause all persons under indictment or informed against to be speedily arraigned for
210 crimes charged; and
211 (iv) issue subpoenas for all witnesses for the state or for the county in the prosecution
212 of a criminal ordinance.
213 (b) A public prosecutor described in Subsection (1)(a)(i)(B) shall:
214
215 (ii) prepare all necessary indictments and arrange for the subpoena of witnesses to
216 appear before the grand jury.
217 (2) The public prosecutor may:
218 (a) examine as to the sufficiency of an appearance bond that may be tendered to the
219 court; and
220 (b) upon a court order:
221 (i) institute proceedings for the recovery upon forfeiture of a bond running to the state
222 or county; and
223 (ii) enforce the collection of a bond described in Subsection (2)(b)(i).
224 (3) The public prosecutor is authorized to grant transactional immunity to a witness for
225 violation of a state statute or county criminal ordinance.
226 Section 14. Section 17-18a-403 is enacted to read:
227 17-18a-403. Appeal.
228 (1) A public prosecutor shall assist and cooperate, as required by the attorney general,
229 in a case that may be appealed to the Court of Appeals or Utah Supreme Court regarding a
230 criminal violation of state statute.
231 (2) A public prosecutor shall appear and prosecute all appeals, in the appropriate court,
232 for a crime charged as a misdemeanor in district court or as a violation of a county criminal
233 ordinance.
234 Section 15. Section 17-18a-404 is enacted to read:
235 17-18a-404. Juvenile proceedings.
236 For a proceeding involving a charge of juvenile delinquency, a public prosecutor shall
237 appear and prosecute for the state in the juvenile court of the county.
238 Section 16. Section 17-18a-405 is enacted to read:
239 17-18a-405. Civil responsibilities of public prosecutors.
240 A public prosecutor may act as legal counsel to the state, county, government agency,
241 or government entity regarding the following matters of civil law:
242 (1) bail bond forfeiture actions;
243 (2) actions for the forfeiture of property or contraband, as provided in Title 24, Chapter
244 1, Utah Uniform Forfeiture Procedures Act;
245
246 including an injunction, a habeas corpus, a declaratory action, or an extraordinary writ action,
247 in which the interests of the state may be affected; and
248 (4) any other civil duties related to criminal prosecution that are otherwise provided by
249 statute.
250 Section 17. Section 17-18a-501 is enacted to read:
251
252 17-18a-501. Duties as civil counsel.
253 The attorney shall:
254 (1) appear in, prosecute, and defend each civil action in which the county is a party;
255 (2) prosecute, either directly or through a private contract for debt collection, each
256 action for the recovery of debts, fines, penalties, and forfeitures accruing to the county;
257 (3) prosecute each appeal regarding a civil counsel's duties or functions in which the
258 county is a party;
259 (4) act as the civil legal advisor to the county; and
260 (5) attend the meetings and hearings of the county legislative body as necessary.
261 Section 18. Section 17-18a-502 is enacted to read:
262 17-18a-502. Civil violation of county ordinance.
263 The civil counsel shall enforce and prosecute, in the appropriate court, civil violations
264 of a county ordinance.
265 Section 19. Section 17-18a-503 is enacted to read:
266 17-18a-503. Legal opinions.
267 The civil counsel shall prepare a legal opinion in writing to a county officer on matters
268 relating to the duties of the respective officer's office.
269 Section 20. Section 17-18a-504 is enacted to read:
270 17-18a-504. Review and approve as to form.
271 The civil counsel shall review and approve as to form and legality each county contract,
272 ordinance, regulation, real estate document, conveyance, and legal document.
273 Section 21. Section 17-18a-505 is enacted to read:
274 17-18a-505. Escheats to the state.
275 The civil counsel shall:
276
277 reverts to the state; and
278 (2) provide assistance to the county assessor and the state auditor in discovering and
279 recovering an escheat.
280 Section 22. Section 17-18a-601 is enacted to read:
281
282 17-18a-601. Assistance to the attorney general.
283 (1) (a) The attorney shall appear and assist the attorney general in criminal and civil
284 legal matters involving the state if:
285 (i) except as provided in Subsection (1)(b), the attorney general requests assistance; or
286 (ii) the attorney is required by law to provide assistance.
287 (b) The attorney is not required to provide, if requested, the attorney general assistance
288 if the attorney's assistance would:
289 (i) interfere with the attorney's duties and responsibilities to the county; or
290 (ii) create a conflict of interest.
291 (c) The attorney shall cooperate with the attorney general in an investigation, including
292 an investigation described in Section 67-5-18 .
293 (2) The attorney general shall assist the attorney with a criminal prosecution if a court:
294 (a) finds that the attorney is unable to satisfactorily and adequately perform the duties
295 of prosecuting a criminal case; and
296 (b) recommends that the attorney seek additional legal assistance.
297 Section 23. Section 17-18a-602 is enacted to read:
298 17-18a-602. Deputy attorneys.
299 (1) The attorney may employ a deputy attorney to perform the duties of public
300 prosecutor or civil counsel.
301 (2) (a) Subject to the approval of the county attorney, the district attorney may cross
302 deputize a county deputy attorney as a deputy district attorney.
303 (b) Subject to the approval of the district attorney, the county attorney may cross
304 deputize a deputy district attorney as a deputy county attorney.
305 (3) The county attorney may specially deputize, for a limited time or limited purpose,
306 an attorney licensed to practice law in the state and in good standing with the Utah State Bar as
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a deputy to assist in any public prosecutor or civil counsel duties specified in the special307
308 deputization.
309 Section 24. Section 17-18a-603 is enacted to read:
310 17-18a-603. Legislative functions.
311 The attorney:
312 (1) may review a state statute;
313 (2) shall review each county ordinance;
314 (3) shall call to the attention of the state Legislature or the county legislative body any
315 defect in the operation of the law; and
316 (4) shall suggest and assist in presenting an amendment to correct the defect.
317 Section 25. Section 17-18a-604 is enacted to read:
318 17-18a-604. Other duties.
319 The attorney shall perform each duty and responsibility of public prosecutor and civil
320 counsel as provided by statute or ordinance.
321 Section 26. Section 17-18a-605 is enacted to read:
322 17-18a-605. Prohibited acts.
323 (1) Within the state, the attorney may not consult with or otherwise represent a person
324 charged with a crime, misdemeanor, or breach of a criminal statute or ordinance.
325 (2) A public prosecutor may not prosecute or dismiss in the name of the state a case in
326 which the public prosecutor has previously acted as legal counsel for the accused.
327 (3) A public prosecutor may not S. after the filing of an indictment or information and
327a without the consent of the court .S :
328 (a) compromise a prosecution; or
329 (b) enter a plea of nolle prosequi S. [
330 without the consent of the court
331 Section 27. Section 17-18a-701 is enacted to read:
332
333 17-18a-701. Creation of a prosecution district.
334 A county legislative body may, by ordinance, create a countywide prosecution district.
335 Section 28. Section 17-18a-702 is enacted to read:
336 17-18a-702. Multicounty prosecution district.
337 (1) (a) Subject to Subsection (2), two or more counties, whether or not contiguous, may
338
339 create and maintain a prosecution district.
340 (b) A prosecution district described in Subsection (1)(a) shall include all of the area
341 within the boundaries of each county party to the agreement.
342 (2) A county may not enter into an agreement to create a multicounty prosecution
343 district unless each county entering into the agreement is located within a single judicial
344 district, as described in Section 78A-1-102 , with the other party counties.
345 Section 29. Section 17-18a-703 is enacted to read:
346 17-18a-703. Dissolution of prosecution district.
347 (1) A county legislative body of a prosecution district described in Section 17-18a-701 ,
348 or the legislative bodies of multiple counties within a multicounty prosecution district
349 described in Section 17-18a-702 , may not dissolve the prosecution district or multicounty
350 prosecution district, respectively, during the term of office of an elected or appointed district
351 attorney.
352 (2) Each county legislative body shall ensure that an ordinance dissolving a
353 prosecution district within a single county or an interlocal agreement dissolving a prosecution
354 district within multiple counties:
355 (a) is enacted before February 1 of the year in which the regular general election, as
356 defined in Section 20A-1-102 , is held to elect an attorney; and
357 (b) takes effect on the first Monday in January after the year in which the attorney is
358 elected.
359 Section 30. Section 17-18a-801 is enacted to read:
360
361 17-18a-801. Public prosecutor's ethical duties.
362 An attorney exercising public prosecutor duties under this chapter:
363 (1) is a lawyer representing an organization as a client under the Rules of Professional
364 Conduct, Rule 1.13;
365 (2) represents the state as an organizational client;
366 (3) is considered the representative of the state; and
367 (4) is empowered to make commitments for and decisions on behalf of the state.
368 Section 31. Section 17-18a-802 is enacted to read:
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369
17-18a-802. Representation by civil counsel -- County is client.369
370 (1) (a) An attorney acting as civil counsel under this chapter represents an organization
371 as a client in accordance with Rules of Professional Conduct, Rule 1.13.
372 (b) The county is the client organization described in Subsection (1)(a).
373 (2) The attorney:
374 (a) does not represent a county commission, county agency, county board, county
375 council, county officer, or county employee;
376 (b) counsels with the county regarding civil matters; and
377 (c) receives direction from the county through the county elected officers in accordance
378 with the officers' duties and powers in accordance with law.
378a S. (3) Notwithstanding Subsection (2)(a), the attorney may represent an employee
378b named as a party in litigation:
378c (a) with the approval of the county executive; and
378d (b) if permitted by law and the Rules of Professional Conduct. .S
379 Section 32. Section 17-18a-803 is enacted to read:
380 17-18a-803. License suspended -- Vacancy.
381 If the attorney is suspended or disbarred from the practice of law in the state, the
382 attorney's office is vacant immediately upon suspension or disbarment.
383 Section 33. Section 19-5-115 is amended to read:
384 19-5-115. Violations -- Penalties -- Civil actions by director -- Ordinances and
385 rules of political subdivisions.
386 (1) The terms "knowingly," "willfully," and "criminal negligence" are as defined in
387 Section 76-2-103 .
388 (2) Any person who violates this chapter, or any permit, rule, or order adopted under it,
389 upon a showing that the violation occurred, is subject in a civil proceeding to a civil penalty not
390 to exceed $10,000 per day of violation.
391 (3) (a) A person is guilty of a class A misdemeanor and is subject to imprisonment
392 under Section 76-3-204 and a fine not exceeding $25,000 per day who, with criminal
393 negligence:
394 (i) discharges pollutants in violation of Subsection 19-5-107 (1) or in violation of any
395 condition or limitation included in a permit issued under Subsection 19-5-107 (3);
396 (ii) violates Section 19-5-113 ;
397 (iii) violates a pretreatment standard or toxic effluent standard for publicly owned
398 treatment works; or
399 (iv) manages sewage sludge in violation of this chapter or rules adopted under it.
400
401 Section 76-3-203 and a fine not to exceed $50,000 per day of violation who knowingly:
402 (i) discharges pollutants in violation of Subsection 19-5-107 (1) or in violation of any
403 condition or limitation included in a permit issued under Subsection 19-5-107 (3);
404 (ii) violates Section 19-5-113 ;
405 (iii) violates a pretreatment standard or toxic effluent standard for publicly owned
406 treatment works; or
407 (iv) manages sewage sludge in violation of this chapter or rules adopted under it.
408 (4) A person is guilty of a third degree felony and subject to imprisonment under
409 Section 76-3-203 and shall be punished by a fine not exceeding $10,000 per day of violation if
410 that person knowingly:
411 (a) makes a false material statement, representation, or certification in any application,
412 record, report, plan, or other document filed or required to be maintained under this chapter, or
413 by any permit, rule, or order issued under it; or
414 (b) falsifies, tampers with, or knowingly renders inaccurate any monitoring device or
415 method required to be maintained under this chapter.
416 (5) (a) As used in this section:
417 (i) "Organization" means a legal entity, other than a government, established or
418 organized for any purpose, and includes a corporation, company, association, firm, partnership,
419 joint stock company, foundation, institution, trust, society, union, or any other association of
420 persons.
421 (ii) "Serious bodily injury" means bodily injury which involves a substantial risk of
422 death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or
423 protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
424 (b) A person is guilty of a second degree felony and, upon conviction, is subject to
425 imprisonment under Section 76-3-203 and a fine of not more than $250,000 if that person:
426 (i) knowingly violates this chapter, or any permit, rule, or order adopted under it; and
427 (ii) knows at that time that [
428 danger of death or serious bodily injury.
429 (c) If a person is an organization, it shall, upon conviction of violating Subsection
430 (5)(b), be subject to a fine of not more than $1,000,000.
431
432 (A) the defendant's conduct placed another person in imminent danger of death or
433 serious bodily injury; and
434 (B) the defendant was aware of or believed that there was an imminent danger of death
435 or serious bodily injury to another person.
436 (ii) Knowledge possessed by a person other than the defendant may not be attributed to
437 the defendant.
438 (iii) Circumstantial evidence may be used to prove that the defendant possessed actual
439 knowledge, including evidence that the defendant took affirmative steps to be shielded from
440 receiving relevant information.
441 (e) (i) It is an affirmative defense to prosecution under this Subsection (5) that the
442 conduct charged was consented to by the person endangered and that the danger and conduct
443 charged were reasonably foreseeable hazards of:
444 (A) an occupation, a business, or a profession; or
445 (B) medical treatment or medical or scientific experimentation conducted by
446 professionally approved methods and the other person was aware of the risks involved prior to
447 giving consent.
448 (ii) The defendant has the burden of proof to establish any affirmative defense under
449 this Subsection (5)(e) and shall prove that defense by a preponderance of the evidence.
450 (6) For purposes of Subsections 19-5-115 (3) through (5), a single operational upset
451 [
452 treated as a single violation.
453 (7) (a) The director may begin a civil action for appropriate relief, including a
454 permanent or temporary injunction, for any violation or threatened violation for which it is
455 authorized to issue a compliance order under Section 19-5-111 .
456 (b) Actions shall be brought in the district court where the violation or threatened
457 violation occurs.
458 (8) (a) The attorney general is the legal advisor for the board and the director and shall
459 defend them in all actions or proceedings brought against them.
460 (b) The county attorney or district attorney as appropriate under [
461
462
463 condition that exists in violation of, or to prosecute for the violation of, or to enforce, the laws
464 or the standards, orders, and rules of the board or the director issued under this chapter.
465 (c) The director may initiate any action under this section and be represented by the
466 attorney general.
467 (9) If any person fails to comply with a cease and desist order that is not subject to a
468 stay pending administrative or judicial review, the director may initiate an action for and be
469 entitled to injunctive relief to prevent any further or continued violation of the order.
470 (10) Any political subdivision of the state may enact and enforce ordinances or rules
471 for the implementation of this chapter that are not inconsistent with this chapter.
472 (11) (a) Except as provided in Subsection (11)(b), all penalties assessed and collected
473 under the authority of this section shall be deposited in the General Fund.
474 (b) The department may reimburse itself and local governments from money collected
475 from civil penalties for extraordinary expenses incurred in environmental enforcement
476 activities.
477 (c) The department shall regulate reimbursements by making rules that:
478 (i) define qualifying environmental enforcement activities; and
479 (ii) define qualifying extraordinary expenses.
480 Section 34. Section 19-6-113 is amended to read:
481 19-6-113. Violations -- Penalties -- Reimbursement for expenses.
482 (1) As used in this section, "RCRA" means the Resource Conservation and Recovery
483 Act, 42 U.S.C. Section 6901, et seq.
484 (2) Any person who violates any order, plan, rule, or other requirement issued or
485 adopted under this part is subject in a civil proceeding to a penalty of not more than $13,000
486 per day for each day of violation.
487 (3) On or after July 1, 1990, no person shall knowingly:
488 (a) transport or cause to be transported any hazardous waste identified or listed under
489 this part to a facility that does not have a hazardous waste operation plan or permit under this
490 part or RCRA;
491 (b) treat, store, or dispose of any hazardous waste identified or listed under this part:
492 (i) without having obtained a hazardous waste operation plan or permit as required by
493
494 (ii) in knowing violation of any material condition or requirement of a hazardous waste
495 operation plan or permit; or
496 (iii) in knowing violation of any material condition or requirement of any rules or
497 regulations under this part or RCRA;
498 (c) omit material information or make any false material statement or representation in
499 any application, label, manifest, record, report, permit, operation plan, or other document filed,
500 maintained, or used for purposes of compliance with this part or RCRA or any rules or
501 regulations made under this part or RCRA; and
502 (d) transport or cause to be transported without a manifest[
503 identified or listed under this part and required by rules or regulations made under this part or
504 RCRA to be accompanied by a manifest.
505 (4) (a) (i) Any person who knowingly violates any provision of Subsection (3)(a) or (b)
506 is guilty of a felony.
507 (ii) Notwithstanding Sections 76-3-203 , 76-3-301 , and 76-3-302 , a person convicted of
508 a felony under Subsection (3)(a) or (b) is subject to a fine of not more than $50,000 for each
509 day of violation, or imprisonment for a term not to exceed five years, or both.
510 (iii) If a person is convicted of a second or subsequent violation under Subsection
511 (3)(a) or (b), the maximum punishment is double both the fine and the term of imprisonment
512 authorized in Subsection (4)(a)(ii).
513 (b) (i) Any person who knowingly violates any of the provisions of Subsection (3)(c) or
514 (d) is guilty of a felony.
515 (ii) Notwithstanding Sections 76-3-203 , 76-3-301 , and 76-3-302 , a person convicted of
516 a felony for a violation of Subsection (3)(c) or (d) is subject to a fine of not more than $50,000
517 for each day of violation, or imprisonment for a term not to exceed two years, or both.
518 (iii) If a person is convicted of a second or subsequent violation under Subsection
519 (3)(c) or (d), the maximum punishment is double both the fine and the imprisonment
520 authorized in Subsection (4)(b)(ii).
521 (c) (i) Any person who knowingly transports, treats, stores, or disposes of any
522 hazardous waste identified or listed under this part in violation of Subsection (3)(a), (b), (c), or
523 (d), who knows at that time that [
524
525 (ii) Notwithstanding Sections 76-3-203 , 76-3-301 , and 76-3-302 , a person convicted of
526 a felony described in Subsection (4)(c)(i) is subject to a fine of not more than $250,000, or
527 imprisonment for a term not to exceed 15 years, or both.
528 (iii) A corporation, association, partnership, or governmental instrumentality, upon
529 conviction of violating Subsection (4)(c)(i), is subject to a fine of not more than $1,000,000.
530 (5) (a) Except as provided in Subsections (5)(b) and (c) and Section 19-6-722 , all
531 penalties assessed and collected under authority of this section shall be deposited in the
532 General Fund.
533 (b) The department may reimburse itself and local governments from money collected
534 from civil penalties for qualifying extraordinary expenses incurred in qualifying environmental
535 enforcement activities.
536 (c) Notwithstanding the provisions of Section 78A-5-110 , the department may
537 reimburse itself and local governments from money collected from criminal fines for qualifying
538 extraordinary expenses incurred in prosecutions for violations of this part.
539 (d) The department shall regulate reimbursements by making rules that define:
540 (i) qualifying environmental enforcement activities; and
541 (ii) qualifying extraordinary expenses.
542 (6) Prosecution for criminal violations of this part may be commenced by the attorney
543 general, the county attorney, or the district attorney as appropriate under Section [
544
545 Section 35. Section 20A-1-509.2 is amended to read:
546 20A-1-509.2. Procedure for filling vacancy in county or district with fewer than
547 15 attorneys.
548 (1) When a vacancy occurs in the office of county or district attorney, including a
549 vacancy created by the failure of a person to file as a candidate for the office of county or
550 district attorney in an election, in a county or district having fewer than 15 attorneys who are
551 licensed, active members in good standing with the Utah State Bar and registered voters, the
552 vacancy shall be filled as provided in this section.
553 (2) The county clerk shall send a letter to each attorney residing in the county or district
554 who is a licensed, active member in good standing with the Utah State Bar and a registered
555
556 (a) informs the attorney of the vacancy;
557 (b) invites the attorney to apply for the vacancy; and
558 (c) informs the attorney that if the attorney has not responded within 10 calendar days
559 from the date that the letter was mailed, [
560 not be considered.
561 (3) (a) (i) If, after 10 calendar days from the date the letter was mailed, more than three
562 attorneys who are licensed, active members in good standing with the Utah State Bar and
563 registered voters in the county or district have applied for the vacancy, the county clerk shall,
564 except as provided in Subsection (3)(a)(ii), submit the applications to the county central
565 committee of the same political party of the prior officeholder.
566 (ii) In multicounty prosecution districts, the clerk shall submit the applications to the
567 county central committee of each county within the prosecution district.
568 (b) The central committee shall nominate three of the applicants and forward [
569 applicants' names to the county legislative body within 20 days after the date the county clerk
570 submitted the applicants' names.
571 (c) The county legislative body shall appoint one of the nominees to fill the vacant
572 position.
573 (d) If the central committee of the political party fails to submit at least three names to
574 the county legislative body within 20 days after the date the county clerk submitted the
575 applicants' names, the county legislative body shall appoint one of the applicants to fill the
576 vacant position.
577 (e) If the county legislative body fails to appoint a person to fill the vacancy within 120
578 days after the vacancy occurs, the county clerk shall mail to the governor:
579 (i) a letter informing [
580 appoint a person to fill the vacancy; and
581 (ii) (A) the list of nominees, if any, submitted by the central committee of the political
582 party; or
583 (B) if the party central committee has not submitted a list of at least three nominees
584 within the required time, the names of the persons who submitted applications for the vacant
585 position to the county clerk.
586
587 the list to fill the vacancy [
588 (4) (a) If, after 10 calendar days from the date the letter was mailed, three or fewer
589 attorneys who are licensed, active members in good standing with the Utah State Bar and
590 registered voters in the county or district have applied for the vacancy, the county legislative
591 body may:
592 (i) appoint one of them to be county or district attorney; or
593 (ii) solicit additional applicants and appoint a county or district attorney as provided in
594 Subsection (4)(b).
595 (b) (i) If three or fewer attorneys who are licensed members in good standing of the
596 Utah State Bar and registered voters in the county or district submit applications, the county
597 legislative body may publicly solicit and accept additional applications for the position from
598 licensed, active members in good standing of the Utah State Bar who are not residents of the
599 county or prosecution district.
600 (ii) The county legislative body shall consider the applications submitted by the
601 attorneys who are residents of and registered voters in the county or prosecution district and the
602 applications submitted by the attorneys who are not residents of the county or prosecution
603 district and shall appoint one of the applicants to be county attorney or district attorney.
604 (c) If the legislative body fails to appoint a person to fill the vacancy within 120 days
605 after the vacancy occurs, the county clerk shall:
606 (i) notify the governor that the legislative body has failed to fill the vacancy within the
607 required time period; and
608 (ii) provide the governor with a list of all the applicants.
609 (d) The governor shall appoint a person to fill the vacancy within 30 days after [
610 governor receives the notification.
611 (5) The person appointed to fill the vacancy shall serve for the unexpired term of the
612 person who created the vacancy.
613 Section 36. Section 35A-1-501 is amended to read:
614 35A-1-501. Legal representation of department.
615 At the request of the department, it is the duty of the county attorney or district attorney,
616 as appropriate under Sections [
617
618 Chapter 3, Employment Support Act, or under Title 76, Chapter 8, Part 12, Public Assistance
619 Fraud.
620 Section 37. Section 39-1-50 is amended to read:
621 39-1-50. Military court -- Concurrent prosecutorial jurisdiction with county or
622 district attorney.
623 (1) The county attorney or district attorney, as appropriate under Sections [
624
625 Military Justice is committed has concurrent jurisdiction with the Utah Military Court to
626 prosecute the accused person at the expense of the county.
627 (2) Charges regarding the offense may not be filed in a military court until the
628 appropriate county attorney or district attorney has reviewed and declined to prosecute the
629 offense.
630 Section 38. Section 62A-3-309 is amended to read:
631 62A-3-309. Enforcement by division -- Duty of county or district attorney.
632 (1) It is the duty of the county or district attorney, as appropriate under Sections
633 [
634 (a) assist and represent the division;
635 (b) initiate legal proceedings to protect vulnerable adults; and
636 (c) take appropriate action to prosecute the alleged offenders.
637 (2) If the county or district attorney fails to act upon the request of the division to
638 provide legal assistance within five business days after the day on which the request is made:
639 (a) the division may request the attorney general to act; and
640 (b) the attorney general may, in the attorney general's discretion, assume the
641 responsibilities and carry the action forward in place of the county or district attorney.
642 Section 39. Section 62A-4a-405 is amended to read:
643 62A-4a-405. Death of child -- Reporting requirements.
644 (1) Any person who has reason to believe that a child has died as a result of abuse or
645 neglect shall report that fact to:
646 (a) the local law enforcement agency, who shall report to the county attorney or district
647 attorney as provided under Section [
648
649 Medical Examiner Act.
650 (2) After receiving a report described in Subsection (1), the medical examiner shall
651 investigate and report the medical examiner's findings to:
652 (a) the police;
653 (b) the appropriate county attorney or district attorney;
654 (c) the attorney general's office;
655 (d) the division; and
656 (e) if the institution making the report is a hospital, to that hospital.
657 Section 40. Section 65A-3-3 is amended to read:
658 65A-3-3. Enforcement of laws -- County attorney or district attorney to
659 prosecute.
660 (1) It is the duty of the division, county sheriffs, their deputies, peace officers, and
661 other law enforcement officers within [
662 provisions of this chapter and to investigate and gather evidence that may indicate a violation
663 under this chapter.
664 (2) The county attorney or district attorney, as appropriate under Sections [
665
666 (a) prosecute any criminal violations of this chapter; and
667 (b) initiate a civil action to recover suppression costs incurred by the county or state for
668 suppression of fire on private land.
669 Section 41. Section 67-5-1 is amended to read:
670 67-5-1. General duties.
671 The attorney general shall:
672 (1) perform all duties in a manner consistent with the attorney-client relationship under
673 Section 67-5-17 ;
674 (2) except as provided in Sections 10-3-928 and [
675 Supreme Court and the Court of Appeals of this state, and all courts of the United States, and
676 prosecute or defend all causes to which the state[
677 state in an official capacity is a party[
678 which the state is interested;
679
680 process as necessary to execute the judgment;
681 (4) account for, and pay over to the proper officer, all money that comes into the
682 attorney general's possession that belongs to the state;
683 (5) keep a file of all cases in which the attorney general is required to appear, including
684 any documents and papers showing the court in which the cases have been instituted and tried,
685 and whether they are civil or criminal, and:
686 (a) if civil, the nature of the demand, the stage of proceedings, and, when prosecuted to
687 judgment, a memorandum of the judgment and of any process issued [
688 if not satisfied, documentation of the return of the sheriff;
689 (b) if criminal, the nature of the crime, the mode of prosecution, the stage of
690 proceedings, and, when prosecuted to sentence, a memorandum of the sentence and of the
691 execution, if the sentence has been executed, and, if not executed, [
692 delay or prevention; and
693 (c) deliver this information to the attorney general's successor in office;
694 (6) exercise supervisory powers over the district and county attorneys of the state in all
695 matters pertaining to the duties of their offices, and from time to time require of them reports of
696 the condition of public business entrusted to their charge;
697 (7) give the attorney general's opinion in writing and without fee to the Legislature or
698 either house[
699 district attorney, when required, upon any question of law relating to their respective offices;
700 (8) when required by the public service or directed by the governor, assist any county,
701 district, or city attorney in the discharge of his duties;
702 (9) purchase in the name of the state, under the direction of the state Board of
703 Examiners, any property offered for sale under execution issued upon judgments in favor of or
704 for the use of the state, and enter satisfaction in whole or in part of the judgments as the
705 consideration of the purchases;
706 (10) when the property of a judgment debtor in any judgment mentioned in Subsection
707 (9) has been sold under a prior judgment, or is subject to any judgment, lien, or encumbrance
708 taking precedence of the judgment in favor of the state, redeem the property, under the
709 direction of the state Board of Examiners, from the prior judgment, lien, or encumbrance, and
710
711 out of any money appropriated for these purposes;
712 (11) when in [
713 enforcement of any judgment, institute and prosecute on behalf of the state any action or
714 proceeding necessary to set aside and annul all conveyances fraudulently made by the judgment
715 debtors, and pay the cost necessary to the prosecution, when allowed by the state Board of
716 Examiners, out of any money not otherwise appropriated;
717 (12) discharge the duties of a member of all official boards of which the attorney
718 general is or may be made a member by the Utah Constitution or by the laws of the state, and
719 other duties prescribed by law;
720 (13) institute and prosecute proper proceedings in any court of the state or of the
721 United States[
722 other state or territory from acting illegally or in excess of their corporate powers or contrary to
723 public policy, and in proper cases forfeit their corporate franchises, dissolve the corporations,
724 and wind up their affairs;
725 (14) institute investigations for the recovery of all real or personal property that may
726 have escheated or should escheat to the state, and for that purpose, subpoena any persons
727 before any of the district courts to answer inquiries and render accounts concerning any
728 property, examine all books and papers of any corporations, and when any real or personal
729 property is discovered that should escheat to the state, institute suit in the district court of the
730 county where the property is situated for its recovery, and escheat that property to the state;
731 (15) administer the Children's Justice Center as a program to be implemented in
732 various counties pursuant to Sections 67-5b-101 through 67-5b-107 ;
733 (16) assist the Constitutional Defense Council as provided in Title 63C, Chapter 4,
734 Constitutional Defense Council;
735 (17) pursue any appropriate legal action to implement the state's public lands policy
736 established in Subsection 63C-4-105 (1);
737 (18) investigate and prosecute violations of all applicable state laws relating to fraud in
738 connection with the state Medicaid program and any other medical assistance program
739 administered by the state, including violations of Title 26, Chapter 20, Utah False Claims Act;
740 (19) investigate and prosecute complaints of abuse, neglect, or exploitation of patients
741
742 (a) health care facilities that receive payments under the state Medicaid program; and
743 (b) board and care facilities, as defined in the federal Social Security Act, 42 U.S.C.
744 Sec. 1396b(q)(4)(B), regardless of the source of payment to the board and care facility; and
745 (20) (a) report at least twice per year to the Legislative Management Committee on any
746 pending or anticipated lawsuits, other than eminent domain lawsuits, that might:
747 (i) cost the state more than $500,000; or
748 (ii) require the state to take legally binding action that would cost more than $500,000
749 to implement; and
750 (b) if the meeting is closed, include an estimate of the state's potential financial or other
751 legal exposure in that report.
752 Section 42. Section 77-22a-1 is amended to read:
753 77-22a-1. Administrative subpoenas -- Controlled substances investigations --
754 Procedures -- Witness fees.
755 (1) (a) The administrative subpoena process of this chapter may be used only to obtain
756 third party information under circumstances where it is clear that the subpoenaed information is
757 not subject to a claim of protection under the Fourth, Fifth, or Sixth Amendment, United States
758 Constitution, or a similar claim under Article I, Sec. 12 and Sec. 14, Utah Constitution.
759 (b) A party subpoenaed under this chapter shall be advised by the subpoena that [
760 the party has a right to challenge the subpoena by motion to quash filed in the appropriate
761 district court named in the subpoena before compliance is required.
762 (2) (a) In any investigation relating to [
763 regarding controlled substances, the attorney general or a deputy or assistant attorney general
764 the county attorney or a deputy county attorney, or the district attorney or deputy district
765 attorney may subpoena witnesses, compel the attendance and testimony of witnesses, or require
766 the production of any records including books, papers, documents, and other tangible things
767 that constitute or contain evidence found by the attorney general or a deputy or assistant
768 attorney general or the county attorney or district attorney, as provided under Sections [
769
770 attorney's deputy under Section 17-18a-602 , to be relevant or material to the investigation.
771 (b) The attendance of witnesses or the production of records may be required from any
772
773 (3) Witnesses subpoenaed under this section shall be paid the same fees and mileage
774 costs as witnesses in the state district courts.
775 (4) If the attorney general [
776 attorney or district attorney, or [
777 the existence of an administrative subpoena or of the information sought or of the existence of
778 the investigation under which it is issued would pose a threat of harm to a person or otherwise
779 impede the investigation, the subpoena shall contain language on its face directing that the
780 witness not disclose to any person the existence or service of the subpoena, the information
781 being sought, or the existence of an investigation.
782 Section 43. Section 77-22b-1 is amended to read:
783 77-22b-1. Immunity granted to witness.
784 (1) (a) A witness who refuses, or is likely to refuse, on the basis of [
785 privilege against self-incrimination to testify or provide evidence or information in a criminal
786 investigation, including a grand jury investigation or prosecution of a criminal case, or in aid of
787 an investigation or inquiry being conducted by a government agency or commission, or by
788 either house of the Legislature, a joint committee of the two houses, or a committee or
789 subcommittee of either house, may be compelled to testify or provide evidence or information
790 by any of the following, after being granted use immunity with regards to the compelled
791 testimony or production of evidence or information:
792 (i) the attorney general or any assistant attorney general authorized by the attorney
793 general;
794 (ii) a district attorney or any deputy district attorney authorized by a district attorney;
795 (iii) in a county not within a prosecution district, a county attorney or any deputy
796 county attorney authorized by a county attorney;
797 (iv) a special counsel for the grand jury;
798 (v) a prosecutor pro tempore appointed under the Utah Constitution, Article VIII, Sec.
799 16; or
800 (vi) legislative general counsel in the case of testimony pursuant to subpoena before the
801 Legislature or any committee of the Legislature having subpoena powers.
802 (b) If any prosecutor authorized under Subsection (1)(a) intends to compel a witness to
803
804 notify the witness by written notice. The notice shall include the information contained in
805 Subsection (2) and advise the witness that [
806 evidence or information on the basis of [
807 The notice need not be in writing when the grant of use immunity occurs on the record in the
808 course of a preliminary hearing, grand jury proceeding, or trial.
809 (2) Testimony, evidence, or information compelled under Subsection (1) may not be
810 used against the witness in any criminal or quasi-criminal case, nor any information directly or
811 indirectly derived from this testimony, evidence, or information, unless the testimony,
812 evidence, or information is volunteered by the witness or is otherwise not responsive to a
813 question. Immunity does not extend to prosecution or punishment for perjury or to giving a
814 false statement in connection with any testimony.
815 (3) If a witness is granted immunity under Subsection (1)[
816 an offense that was part of the transaction or events about which the witness was compelled to
817 testify or produce evidence or information under a grant of immunity, the burden is on the
818 prosecution to show by a preponderance of the evidence that no use or derivative use was made
819 of the compelled testimony, evidence, or information in the subsequent case against the
820 witness, and to show that any proffered evidence was derived from sources totally independent
821 of the compelled testimony, evidence, or information. The remedy for not establishing that any
822 proffered evidence was derived from sources totally independent of the compelled testimony,
823 evidence, or information is suppression of that evidence only.
824 (4) Nothing in this section prohibits or limits prosecutorial authority granted in Section
825 77-22-4.5 .
826 (5) A county attorney within a prosecution district shall have the authority to grant
827 immunity only as provided in [
828 (6) For purposes of this section, "quasi-criminal" means only those proceedings that are
829 determined by a court to be so far criminal in their nature that a defendant has a constitutional
830 right [
831 Section 44. Section 77-23a-10 is amended to read:
832 77-23a-10. Application for order -- Authority of order -- Emergency action --
833 Application -- Entry -- Conditions -- Extensions -- Recordings -- Admissibility or
834
835 (1) Each application for an order authorizing or approving the interception of a wire,
836 electronic, or oral communication shall be made in writing, upon oath or affirmation to a judge
837 of competent jurisdiction, and shall state the applicant's authority to make the application.
838 Each application shall include:
839 (a) the identity of the investigative or law enforcement officer making the application,
840 and the officer authorizing the application;
841 (b) a full and complete statement of the facts and circumstances relied upon by the
842 applicant to justify [
843 (i) details regarding the particular offense that has been, is being, or is about to be
844 committed;
845 (ii) except as provided in Subsection (12), a particular description of the nature and
846 location of the facilities from which or the place where the communication is to be intercepted;
847 (iii) a particular description of the type of communication sought to be intercepted; and
848 (iv) the identity of the person, if known, committing the offense and whose
849 communication is to be intercepted;
850 (c) a full and complete statement as to whether other investigative procedures have
851 been tried and failed or why they reasonably appear to be either unlikely to succeed if tried or
852 too dangerous;
853 (d) a statement of the period of time for which the interception is required to be
854 maintained, and if the investigation is of a nature that the authorization for interception should
855 not automatically terminate when the described type of communication has been first obtained,
856 a particular description of facts establishing probable cause to believe that additional
857 communications of the same type will occur thereafter;
858 (e) a full and complete statement of the facts concerning all previous applications
859 known to the individual authorizing and the individual making the application, made to any
860 judge for authorization to intercept, or for approval of interceptions of wire, electronic, or oral
861 communications involving any of the same persons, facilities, or places specified in the
862 application, and the action taken by the judge on each application;
863 (f) when the application is for the extension of an order, a statement setting forth the
864 results so far obtained from the interception, or a reasonable explanation of the failure to obtain
865
866 (g) additional testimony or documentary evidence in support of the application as the
867 judge may require.
868 (2) Upon application the judge may enter an ex parte order, as requested or as
869 modified, authorizing or approving interception of wire, electronic, or oral communications
870 within the territorial jurisdiction of the state if the judge determines on the basis of the facts
871 submitted by the applicant that:
872 (a) there is probable cause for belief that an individual is committing, has committed,
873 or is about to commit a particular offense under Section 77-23a-8 ;
874 (b) there is probable cause for belief that particular communications concerning that
875 offense will be obtained through the interception;
876 (c) normal investigative procedures have been tried and have failed or reasonably
877 appear to be either unlikely to succeed if tried or too dangerous; and
878 (d) except as provided in Subsection (12), there is probable cause for belief that the
879 facilities from which or the place where the wire, electronic, or oral communications are to be
880 intercepted are being used, or are about to be used, in connection with the commission of the
881 offense, or are leased to, listed in the name of, or commonly used by that person.
882 (3) Each order authorizing or approving the interception of any wire, electronic, or oral
883 [
884 (a) the identity of the person, if known, whose communications are to be intercepted;
885 (b) except as provided in Subsection (12), the nature and location of the
886 communications facilities as to which, or the place where, authority to intercept is granted;
887 (c) a particular description of the type of communication sought to be intercepted[
888 and a statement of the particular offense to which it relates;
889 (d) the identity of the agency authorized to intercept the communications[
890 persons authorizing the application; and
891 (e) the period of time during which the interception is authorized, including a statement
892 as to whether the interception shall automatically terminate when the described
893 [
894 (4) An order authorizing the interception of a wire, electronic, or oral [
895 communications shall, upon request of the applicant, direct that a provider of wire or electronic
896
897 forthwith all information, facilities, and technical assistance necessary to accomplish the
898 interception unobtrusively and with a minimum of interference with the services that the
899 provider, landlord, custodian, or person is according the person whose communications are to
900 be intercepted. Any provider of wire or electronic communications service, landlord,
901 custodian, or other person furnishing the facilities or technical assistance shall be compensated
902 by the applicant for reasonable expenses involved in providing the facilities or systems.
903 (5) (a) An order entered under this chapter may not authorize or approve the
904 interception of any wire, electronic, or oral [
905 longer than is necessary to achieve the objective of the authorization, but in any event for no
906 longer than 30 days. The 30-day period begins on the day the investigative or law enforcement
907 officer first begins to conduct an interception under the order, or 10 days after the order is
908 entered, whichever is earlier.
909 (b) Extensions of an order may be granted, but only upon application for an extension
910 made under Subsection (1)[
911 The period of extension may be no longer than the authorizing judge considers necessary to
912 achieve the purposes for which it was granted, but in no event for longer than 30 days.
913 (c) Every order and extension shall contain a provision that the authorization to
914 intercept shall be executed as soon as practicable, shall be conducted so as to minimize the
915 interception of communications not otherwise subject to interception under this chapter, and
916 must terminate upon attainment of the authorized objective, or in any event within 30 days.
917 (d) If the intercepted communication is in a code or foreign language, and an expert in
918 that foreign language or code is not reasonably available during the interception period, the
919 minimizing of the interception may be accomplished as soon as practicable after the
920 interception.
921 (e) An interception under this chapter may be conducted in whole or in part by
922 government personnel or by an individual under contract with the government and acting under
923 supervision of an investigative or law enforcement officer authorized to conduct the
924 interception.
925 (6) When an order authorizing interception is entered under this chapter, the order may
926 require reports to be made to the judge who issued the order, showing what progress has been
927
928 These reports shall be made at intervals the judge may require.
929 (7) Notwithstanding any other provision of this chapter, any investigative or law
930 enforcement officer who is specially designated by either the attorney general[
931 attorney or district attorney, as provided under Sections [
932 and 17-18a-203 may intercept wire, electronic, or oral [
933 application for an order approving the interception is made in accordance with this section and
934 within 48 hours after the interception has occurred or begins to occur, when the investigative or
935 law enforcement officer reasonably determines that:
936 (a) an emergency situation exists that involves:
937 (i) immediate danger of death or serious physical injury to any person;
938 (ii) conspiratorial activities threatening the national security interest; or
939 (iii) conspiratorial activities characteristic of organized crime, that require a wire,
940 electronic, or oral [
941 authorizing interception can, with diligence, be obtained; and
942 (b) there are grounds upon which an order could be entered under this chapter to
943 authorize the interception.
944 (8) (a) In the absence of an order under Subsection (7), the interception immediately
945 terminates when the communication sought is obtained or when the application for the order is
946 denied, whichever is earlier.
947 (b) If the application for approval is denied, or in any other case where the interception
948 is terminated without an order having been issued, the contents of any wire, electronic, or oral
949 [
950 violation of this chapter, and an inventory shall be served as provided for in Subsection (9)(d)
951 on the person named in the application.
952 (9) (a) The contents of any wire, electronic, or oral [
953 intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or
954 wire or other comparable device. The recording of the contents of any wire, electronic, or oral
955 [
956 the recording from editing or other alterations. Immediately upon the expiration of the period
957 of an order[
958
959 The recordings may not be destroyed, except upon an order of the issuing or denying judge. In
960 any event, it shall be kept for 10 years. Duplicate recordings may be made for use or disclosure
961 under Subsections 77-23a-9 (1) and (2) for investigations. The presence of the seal provided by
962 this Subsection (9)(a), or a satisfactory explanation for the absence of one, is a prerequisite for
963 the use or disclosure of the contents of any wire, electronic, or oral [
964 communications or evidence derived from it under Subsection 77-23a-9 (3).
965 (b) Applications made and orders granted under this chapter shall be sealed by the
966 judge. Custody of the applications and orders shall be where the judge directs. The
967 applications and orders shall be disclosed only upon a showing of good cause before a judge of
968 competent jurisdiction and may not be destroyed, except on order of the issuing or denying
969 judge. But in any event they shall be kept for 10 years.
970 (c) Any violation of any provision of this Subsection (9) may be punished as contempt
971 of the issuing or denying judge.
972 (d) Within a reasonable time, but not later than 90 days after the filing of an application
973 for an order of approval under Subsection 77-23a-10 (7) that is denied or the termination of the
974 period of an order or extensions, the issuing or denying judge shall cause to be served on the
975 persons named in the order or the application, and other parties to the intercepted
976 communications as the judge determines in his discretion is in the interest of justice, an
977 inventory, which shall include notice [
978 (i) of the entry of the order or application;
979 (ii) of the date of the entry and the period of authorization, approved or disapproved
980 interception, or the denial of the application; and
981 (iii) that during the period, wire, electronic, or oral communications were or were not
982 intercepted.
983 (e) The judge, upon filing of a motion, may in [
984 available to the person or [
985 intercepted communications, applications, and orders the judge determines to be in the interest
986 of justice. On an ex parte showing of good cause to a judge of competent jurisdiction, the
987 serving of the inventory required by this Subsection (9)(e) may be postponed.
988 (10) The contents of any intercepted wire, electronic, or oral [
989
990 evidence or otherwise disclosed in any trial, hearing, or other proceeding in a federal or state
991 court unless each party, not less than 10 days before the trial, hearing, or proceeding, has been
992 furnished with a copy of the court order, and accompanying application, under which the
993 interception was authorized or approved. This ten-day period may be waived by the judge if
994 [
995 days before the trial, hearing, or proceeding and that the party will not be prejudiced by the
996 delay in receiving the information.
997 (11) (a) Any aggrieved person in any trial, hearing, or proceeding in or before any
998 court, department, officer, agency, regulatory body, or other authority of the United States, the
999 state, or a political subdivision may move to suppress the contents of any intercepted wire,
1000 electronic, or oral [
1001 the grounds that:
1002 (i) the communication was unlawfully intercepted;
1003 (ii) the order of authorization or approval under which it was intercepted is insufficient
1004 on its face; or
1005 (iii) the interception was not made in conformity with the order of authorization or
1006 approval.
1007 (b) The motion shall be made before the trial, hearing, or proceeding, unless there was
1008 no opportunity to make the motion or the person was not aware of the grounds of the motion.
1009 If the motion is granted, the contents of the intercepted wire, electronic, or oral
1010 [
1011 treated as having been obtained in violation of this chapter. The judge, upon the filing of the
1012 motion by the aggrieved person, may in [
1013 aggrieved person or [
1014 intercepted communication or evidence derived from [
1015 the judge determines to be in the interests of justice.
1016 (c) In addition to any other right to appeal, the state or its political subdivision may
1017 appeal from an order granting a motion to suppress made under Subsection (11)(a), or the
1018 denial of an application for an order of approval, if the attorney bringing the appeal certifies to
1019 the judge or other official granting the motion or denying the application that the appeal is not
1020
1021 order was entered and shall be diligently prosecuted.
1022 (12) The requirements of Subsections (1)(b)(ii), (2)(d), and (3)(b) relating to the
1023 specification of the facilities from which, or the place where, the [
1024 electronic, or oral communications are to be intercepted do not apply if:
1025 (a) in the case of an applicant regarding the interception of [
1026 communications:
1027 (i) the application is by a law enforcement officer and is approved by the state attorney
1028 general, a deputy attorney general, a county attorney or district attorney, or a deputy county
1029 attorney or deputy district attorney;
1030 (ii) the application contains a full and complete statement of why the specification is
1031 not practical, and identifies the person committing the offense and whose communications are
1032 to be intercepted; or
1033 (iii) the judge finds that the specification is not practical; and
1034 (b) in the case of an application regarding wire or electronic [
1035 communications:
1036 (i) the application is by a law enforcement officer and is approved by the state attorney
1037 general, a deputy attorney general, a county attorney or district attorney, or a deputy county
1038 attorney or deputy district attorney;
1039 (ii) the application identifies the person believed to be committing the offense and
1040 whose communications are to be intercepted, and the applicant makes a showing of a purpose,
1041 on the part of that person, to thwart interception by changing facilities; and
1042 (iii) the judge finds that the purpose has been adequately shown.
1043 (13) (a) An interception of a communication under an order regarding which the
1044 requirements of Subsections (1)(b)(ii), (2)(d), and (3)(b) do not apply by reason of Subsection
1045 (12)[
1046
1047 interception order.
1048 (b) A provider of wire or electronic communications service that has received an order
1049 under Subsection (12)(b) may move the court to modify or quash the order on the ground that
1050 its assistance with respect to the interception cannot be performed in a timely or reasonable
1051
1052 Section 45. Section 78A-6-602 is amended to read:
1053 78A-6-602. Petition -- Preliminary inquiry -- Nonjudicial adjustments -- Formal
1054 referral -- Citation -- Failure to appear.
1055 (1) A proceeding in a minor's case is commenced by petition, except as provided in
1056 Sections 78A-6-701 , 78A-6-702 , and 78A-6-703 .
1057 (2) (a) A peace officer or any public official of the state, any county, city, or town
1058 charged with the enforcement of the laws of the state or local jurisdiction shall file a formal
1059 referral with the juvenile court within 10 days of a minor's arrest. If the arrested minor is taken
1060 to a detention facility, the formal referral shall be filed with the juvenile court within 72 hours,
1061 excluding weekends and holidays. There shall be no requirement to file a formal referral with
1062 the juvenile court on an offense that would be a class B misdemeanor or less if committed by
1063 an adult.
1064 (b) When the court is informed by a peace officer or other person that a minor is or
1065 appears to be within the court's jurisdiction, the probation department shall make a preliminary
1066 inquiry to determine whether the interests of the public or of the minor require that further
1067 action be taken.
1068 (c) (i) Based on the preliminary inquiry, the court may authorize the filing of or request
1069 that the county attorney or district attorney as provided under Sections [
1070 17-18a-202 or 17-18a-203 file a petition.
1071 (ii) In its discretion, the court may, through its probation department, enter into a
1072 written consent agreement with the minor and, if the minor is a child, the minor's parent,
1073 guardian, or custodian for the nonjudicial adjustment of the case if the facts are admitted and
1074 establish prima facie jurisdiction.
1075 (iii) Efforts to effect a nonjudicial adjustment may not extend for a period of more than
1076 90 days without leave of a judge of the court, who may extend the period for an additional 90
1077 days.
1078 (d) The nonjudicial adjustment of a case may include conditions agreed upon as part of
1079 the nonjudicial closure:
1080 (i) payment of a financial penalty of not more than $250 to the juvenile court;
1081 (ii) payment of victim restitution;
1082
1083 (iv) referral to an appropriate provider for counseling or treatment;
1084 (v) attendance at substance abuse programs or counseling programs;
1085 (vi) compliance with specified restrictions on activities and associations; and
1086 (vii) other reasonable actions that are in the interest of the child or minor and the
1087 community.
1088 (e) Proceedings involving offenses under Section 78A-6-606 are governed by that
1089 section regarding suspension of driving privileges.
1090 (f) A violation of Section 76-10-105 that is subject to the jurisdiction of the juvenile
1091 court shall include a minimum fine or penalty of $60 and participation in a court-approved
1092 tobacco education program, which may include a participation fee.
1093 (3) Except as provided in Sections 78A-6-701 and 78A-6-702 , in the case of a minor
1094 14 years of age or older, the county attorney, district attorney, or attorney general may
1095 commence an action by filing a criminal information and a motion requesting the juvenile court
1096 to waive its jurisdiction and certify the minor to the district court.
1097 (4) (a) In cases of violations of wildlife laws, boating laws, class B and class C
1098 misdemeanors, other infractions or misdemeanors as designated by general order of the Board
1099 of Juvenile Court Judges, and violations of Section 76-10-105 subject to the jurisdiction of the
1100 juvenile court, a petition is not required and the issuance of a citation as provided in Section
1101 78A-6-603 is sufficient to invoke the jurisdiction of the court. A preliminary inquiry is not
1102 required unless requested by the court.
1103 (b) Any failure to comply with the time deadline on a formal referral may not be the
1104 basis of dismissing the formal referral.
1105 Section 46. Section 78A-6-1002 is amended to read:
1106 78A-6-1002. Practice and procedure -- Jury trial.
1107 (1) The county attorney or district attorney, as provided [
1108
1109 prosecute any case brought under this part.
1110 (2) Proceedings under this part shall be governed by the statutes and rules governing
1111 criminal proceedings in the district court, except the court may, and on stipulation of the
1112 parties, shall, transfer the case to the district court.
1113
1114 This bill repeals:
1115 Section 17-18-1, Powers -- Duties of county attorney -- Prohibitions.
1116 Section 17-18-1.5, Powers -- Duties of county attorney within a prosecution district
1117 -- Prohibitions.
1118 Section 17-18-1.6, Election of district attorney.
1119 Section 17-18-1.7, Powers -- Duties of district attorney -- Prohibitions.
1120 Section 17-18-1.9, Creation of prosecution district by ordinance or interlocal
1121 agreement.
1122 Section 17-18-2, Legal adviser to commissioners.
1123 Section 17-18-4, Licensing requirement.
1124 Section 17-18-5, Requirements of office.
Legislative Review Note
as of 1-15-13 8:53 AM