1     
PRE-TRIAL RELEASE AMENDMENTS

2     
2016 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Lyle W. Hillyard

5     
House Sponsor: Eric K. Hutchings

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions of the Utah Code of Criminal Procedure relating to arrests
10     and bail.
11     Highlighted Provisions:
12          This bill:
13          ▸     requires a peace officer to issue citations rather than arresting individuals for certain
14     offenses;
15          ▸     sets forth requirements for individuals to appear in court when issued a citation;
16          ▸     amends parental notification requirements if the person cited is under 18 years of
17     age;
18          ▸     provides for pre-trial release requirements when the defendant is arrested without a
19     warrant;
20          ▸     provides conditions by which a custodial authority may hold a defendant for an
21     extended period of time after a defendant's appearance or presentment in court;
22          ▸     directs judges to order the release of a person who may be admitted to bail under the
23     least restrictive means necessary to ensure the appearance of the accused in court
24     and the safety of the public;
25          ▸     provides for pre-trial release conditions that may be ordered by the court;
26          ▸     provides that a court may order a defendant detained until the time of sentencing
27     under certain circumstances;
28          ▸     makes the failure to appear in court pursuant to a citation a contemptible offense
29     under certain circumstances; and
30          ▸     makes technical changes.
31     Money Appropriated in this Bill:
32          None
33     Other Special Clauses:
34          None
35     Utah Code Sections Affected:
36     AMENDS:
37          41-22-16, as last amended by Laws of Utah 2005, Chapter 2
38          73-18-20, as last amended by Laws of Utah 2005, Chapter 2
39          73-18a-15, as last amended by Laws of Utah 2005, Chapter 2
40          76-3-301.5, as enacted by Laws of Utah 1988, Chapter 152
41          77-7-18, as last amended by Laws of Utah 2012, Chapter 322
42          77-7-19, as last amended by Laws of Utah 2009, Chapter 292
43          77-7-20, as last amended by Laws of Utah 2014, Chapters 126 and 263
44          77-18a-1, as last amended by Laws of Utah 2009, Chapter 175
45          77-20-4, as last amended by Laws of Utah 2014, Chapter 170
46          77-20-7, as last amended by Laws of Utah 2011, Chapter 179
47          77-20-8, as last amended by Laws of Utah 1988, Chapter 160
48          77-20-8.5, as last amended by Laws of Utah 2001, Chapter 245
49          77-20-9, as last amended by Laws of Utah 2008, Chapter 3
50          78A-2-220, as last amended by Laws of Utah 2013, Chapter 245
51          78B-6-301, as renumbered and amended by Laws of Utah 2008, Chapter 3
52     ENACTS:
53          77-20-1.5, Utah Code Annotated 1953
54          77-20-1.6, Utah Code Annotated 1953
55     REPEALS AND REENACTS:
56          76-8-312, as last amended by Laws of Utah 1974, Chapter 32
57          77-2-1.1, as enacted by Laws of Utah 1992, Chapter 33
58          77-7-21, as last amended by Laws of Utah 2009, Chapter 292
59          77-7-22, as enacted by Laws of Utah 1980, Chapter 15
60          77-7-23, as last amended by Laws of Utah 1997, Chapters 10 and 215
61          77-20-1, as last amended by Laws of Utah 2015, Chapter 99
62          77-20-3, as last amended by Laws of Utah 1998, Chapter 293
63          77-20-5, as last amended by Laws of Utah 1998, Chapter 293
64     REPEALS:
65          10-3-920, as last amended by Laws of Utah 2015, Chapter 99
66          10-3-921, as last amended by Laws of Utah 1990, Chapter 283
67          10-3-922, as last amended by Laws of Utah 1990, Chapter 283
68          17-32-1, as last amended by Laws of Utah 2015, Chapter 99
69          17-32-2, as last amended by Laws of Utah 1990, Chapter 283
70          17-32-3, as last amended by Laws of Utah 1990, Chapter 283
71          17-32-4, as last amended by Laws of Utah 1990, Chapter 283
72          77-7-24, as renumbered and amended by Laws of Utah 2005, Chapter 2
73          77-7-25, as renumbered and amended by Laws of Utah 2005, Chapter 2
74          77-7-26, as renumbered and amended by Laws of Utah 2005, Chapter 2
75     

76     Be it enacted by the Legislature of the state of Utah:
77          Section 1. Section 41-22-16 is amended to read:
78          41-22-16. Authorized peace officers -- Arrest provisions.
79          (1) Any peace officer authorized under Title 53, Chapter 13, Peace Officer
80     Classifications, may enforce the provisions of this chapter and the rules promulgated under this
81     chapter.
82          (2) Whenever any person is arrested for any violation of the provisions of this chapter
83     or of the rules promulgated under this chapter, the procedure for the arrest is the same as
84     outlined in Sections 77-7-22[,] and 77-7-23[, and 77-7-24].
85          Section 2. Section 73-18-20 is amended to read:
86          73-18-20. Enforcement of chapter -- Authority to stop and board vessels --
87     Disregarding law enforcement signal to stop as misdemeanor -- Procedure for arrest.
88          (1) Any law enforcement officer authorized under Title 53, Chapter 13, Peace Officer
89     Classifications, may enforce the provisions of this chapter and the rules promulgated under this
90     chapter.
91          (2) Any law enforcement officer authorized under Title 53, Chapter 13, Peace Officer
92     Classifications, has the authority to stop and board any vessel subject to this chapter, whether
93     the vessel is on water or land. If that officer determines the vessel is overloaded, unseaworthy,
94     or the safety equipment required by this chapter or rules of the board is not on the vessel, that
95     officer may prohibit the launching of the vessel or stop the vessel from operating.
96          (3) An operator who, having received a visual or audible signal from a law
97     enforcement officer authorized under Title 53, Chapter 13, Peace Officer Classifications, to
98     bring his vessel to a stop, operates his vessel in willful or wanton disregard of the signal so as
99     to interfere with or endanger the operation of any vessel or endanger any person, or who
100     attempts to flee or elude the officer whether by vessel or otherwise is guilty of a class A
101     misdemeanor.
102          (4) Whenever any person is arrested for any violation of the provisions of this chapter
103     or of the rules promulgated under this chapter, the procedure for arrest is the same as outlined
104     in Sections 77-7-22 [through 77-7-24] and 77-7-23.
105          Section 3. Section 73-18a-15 is amended to read:
106          73-18a-15. Arrest for violation -- Procedure.
107          Whenever any person is arrested for any violation of the provisions of this chapter or
108     rule promulgated under this chapter, the procedure for arrest is the same as specified in
109     Sections 77-7-22 [through 77-7-24] and 77-7-23.
110          Section 4. Section 76-3-301.5 is amended to read:
111          76-3-301.5. Uniform fine schedule -- Judicial Council.
112          (1) The Judicial Council shall establish a uniform recommended fine schedule for each
113     offense under Subsection 76-3-301(1).
114          (a) The fine for each offense shall proportionally reflect the seriousness of the offense
115     and other factors as determined in writing by the Judicial Council.
116          (b) The schedule shall [be reviewed annually by the Judicial Council] identify the class
117     B and C misdemeanors and infractions for which a personal appearance is not required.
118          (c) The fines shall be collected under Section 77-18-1.
119          (2) The schedule shall incorporate:
120          (a) criteria for determining aggravating and mitigating circumstances; and
121          (b) guidelines for enhancement or reduction of the fine, based on aggravating or
122     mitigating circumstances.
123          (3) Presentence investigation reports shall include documentation of aggravating and
124     mitigating circumstances as determined under the criteria, and a recommended fine under the
125     schedule.
126          (4) The Judicial Council shall also establish a separate uniform recommended fine
127     schedule for the juvenile court and by rule provide for its implementation.
128          (5) This section does not prohibit the court from in its discretion imposing no fine, or a
129     fine in any amount up to and including the maximum fine, for the offense.
130          Section 5. Section 76-8-312 is repealed and reenacted to read:
131          76-8-312. Bail jumping.
132          A person arrested and charged with a felony offense who willfully fails to appear at
133     court at the time and place designated for appearance is guilty of a third degree felony.
134          Section 6. Section 77-2-1.1 is repealed and reenacted to read:
135          77-2-1.1. Signing and filing of information.
136          The prosecuting attorney shall:
137          (1) sign all informations; and
138          (2) cause all informations to be filed in court as provided for by the Utah Rules of
139     Criminal Procedure.
140          Section 7. Section 77-7-18 is amended to read:
141          77-7-18. Citation on misdemeanor or infraction charge.
142          [Any person subject to arrest or prosecution on a misdemeanor or infraction charge may
143     be issued and delivered]
144          (1) Except as provided in Subsection (3) a peace officer, who has detained a person and
145     intends to charge the person with a class B or C misdemeanor or an infraction, may not deliver
146     that person to a custodial facility. Instead, the officer shall screen the charges as provided in
147     Title 77, Chapter 2, Prosecution, Screening, and Diversion, or issue a citation that requires the
148     person to appear at the court [of the magistrate] with [territorial] jurisdiction. [The citation may
149     be issued by: (1) a peace officer, in lieu of or in addition to taking the person into custody;
150     (2)]
151          (2) In addition to peace officers, the following individuals may issue citations for class
152     B or C misdemeanors or infractions:
153          (a) any public official of any county or municipality charged with the enforcement of
154     the law;
155          [(3)] (b) a port-of-entry agent as defined in Section 72-1-102;
156          [(4)] (c) an animal control officer of a special service district under Title 17D, Chapter
157     1, Special Service District Act, who is authorized to provide animal control service; and
158          [(5)] (d) a volunteer authorized to issue a citation under Section 41-6a-213.
159          (3) A peace officer may arrest and book a person in a custodial facility in lieu of
160     issuing a citation for:
161          (a) any class B misdemeanor violation of Title 41, Chapter 6a, Part 5, Driving Under
162     the Influence and Reckless Driving;
163          (b) a domestic violence offense as defined in Section 77-36-1;
164          (c) any offense involving obstruction of justice; or
165          (d) any other class B or C misdemeanor or infraction if necessary to prevent an
166     immediate breach of the peace.
167          (4) Nothing in this section prevents a peace officer from delivering a person to a
168     custodial facility for any other warrants or legal reasons that may exist.
169          Section 8. Section 77-7-19 is amended to read:
170          77-7-19. Appearance required by citation -- Arrest for failure to appear --
171     Transfer or dismissal of improperly filed cases.
172          (1) A person receiving a citation issued pursuant to Section 77-7-18 shall appear
173     [before the magistrate] in the court designated in the citation on or before the time and date
174     specified in the citation unless [the uniform bail schedule adopted by the Judicial Council or
175     Subsection 77-7-21(1) permits forfeiture of bail for the offense charged.]:
176          (a) the citation states that the court will, within five to 14 days, notify the person of
177     when to appear; or
178          (b) the person is permitted to remit the fine and other penalties without a personal
179     appearance pursuant to the uniform fine schedule adopted by the Judicial Council, or by court
180     order under Section 77-7-21.
181          (2) A citation may not require a person to appear or contact the court sooner than five
182     days or later than 14 days following its issuance.
183          [(3) (a) A person who receives a citation and who fails to comply with Section 77-7-21
184     on or before the time and date and at the court specified is subject to arrest.]
185          [(b) The magistrate may issue a warrant of arrest based upon a citation that was served
186     and filed in accordance with Section 77-7-20.]
187          [(4) Except where otherwise provided by law, a citation or information issued for
188     violations of Title 41, Motor Vehicles, shall state that the person receiving the citation or
189     information shall appear before the magistrate who has jurisdiction over the offense charged.]
190          [(5) Any justice court judge may, upon the motion of either the defense attorney or
191     prosecuting attorney, based on a lack of territorial jurisdiction or the disqualification of the
192     judge, transfer cases to a justice court with territorial jurisdiction or the district court within the
193     county.]
194          (3) If the person cited does not appear before the court as directed by the citation or the
195     court, or pay the fines if allowed by Section 77-7-21, the court may issue a bench warrant for
196     the person's arrest.
197          (4) A person's willful failure to appear on a citation constitutes contempt pursuant to
198     Subsection 78B-6-301(12).
199          [(6)] (5) (a) Clerks and other administrative personnel serving the courts shall [ensure
200     that all citations for violation of Title 41, Motor Vehicles, are filed in a court with jurisdiction
201     and venue and shall refuse to receive] identify for the judge any citations that should [be] have
202     been filed in another court.
203          [(b) Fines, fees, costs, and forfeitures imposed or collected for violations of Title 41,
204     Motor Vehicles, which are filed contrary to this section shall be paid to the entitled
205     municipality or county by the state, county, or municipal treasurer who has received the fines,
206     fees, costs, or forfeitures from the court which collected them.]
207          [(c) The accounting and remitting of sums due shall be at the close of the fiscal year of
208     the municipality or county which has received fines, fees, costs, or forfeitures as a result of any
209     improperly filed citations.]
210          (b) Upon determining that the court lacks jurisdiction, the judge shall:
211          (i) transfer the case to a court with jurisdiction; or
212          (ii) dismiss the charges contained in the citation if no other court is readily identifiable
213     and notify the prosecutor of the dismissal.
214          (c) Fines, fees, costs, and forfeitures collected for cases transferred under this section
215     shall be transferred to the court receiving the case. If the case is dismissed, any fines, fees,
216     costs, and forfeitures collected shall be returned to the defendant.
217          Section 9. Section 77-7-20 is amended to read:
218          77-7-20. Delivery of citation to defendant -- Filing in court -- Electronic filing --
219     Contents of citations.
220          (1) A peace officer or [public] other authorized official who issues a citation pursuant
221     to Section 77-7-18 shall give the citation to the person cited and shall within five business days
222     electronically file the data from Subsections (2)(a) through (2)[(g)](h) with the court specified
223     in the citation. The data transmission shall use the court's electronic filing interface. A
224     nonconforming filing is not effective.
225          (2) The citation issued under authority of this chapter shall contain the following data:
226          (a) the name, address, and phone number of the court before which the person is to
227     appear;
228          (b) the name and date of birth of the person cited;
229          (c) a brief description of the offense charged;
230          (d) the date, time, and place at which the offense is alleged to have occurred;
231          (e) the date on which the citation was issued;
232          (f) the name of the peace officer or [public] official who issued the citation, and the
233     name of the arresting person if an arrest was made by a private party and the citation was
234     issued in lieu of taking the arrested person before a magistrate;
235          (g) the [time and] date on or before and after which the person is to appear or a
236     statement that the court will notify the person of the time to appear;
237          [(h) the address of the court in which the person is to appear;]
238          (h) whether the defendant was arrested and delivered to a custodial facility for other
239     reasons at the time the citation was issued;
240          (i) whether the offense is a domestic violence offense; and
241          (j) a notice containing substantially the following language:
242     
READ CAREFULLY

243          This citation is not an information and will not be used as an information without your
244     consent. If an information is filed you will be provided a copy by the court. You MUST
245     appear in court on or before the time set in this citation or as directed by the court. IF YOU
246     FAIL TO APPEAR, THE COURT MAY ISSUE A WARRANT FOR YOUR ARREST. A
247     WILLFUL FAILURE TO APPEAR CONSTITUTES CONTEMPT OF COURT.
248          (3) By electronically filing the data with the court, the peace officer or [public] official
249     [certifies] affirms to the court that:
250          (a) the citation or information, including the summons and complaint, was [served
251     upon] delivered to the defendant [in accordance with the law];
252          (b) the defendant committed the offense set forth in the [served documents] citation;
253     and
254          (c) the court to which the defendant was directed to appear [is the proper court
255     pursuant to Section 77-7-21] has jurisdiction over the offense charged.
256          (4) Notwithstanding Subsection (1), if a citing law enforcement officer is not
257     reasonably able to access the efiling system, the citation need not be filed electronically if being
258     filed with a justice court.
259          (5) After a citation is issued, it is a class B misdemeanor for any peace officer or other
260     person to knowingly or intentionally dispose of that citation, other than by filing it with the
261     appropriate court.
262          Section 10. Section 77-7-21 is repealed and reenacted to read:
263          77-7-21. Proceeding on citation -- Remittance of fine -- Parental notification
264     required.
265          (1) (a) A citation filed with the court may, with the consent of the defendant, serve in
266     lieu of an information before trial. The person cited may plead guilty or no contest to the
267     charge listed and be sentenced.
268          (b) If provided by the uniform fine schedule adopted by the Judicial Council, or with
269     the court's approval, a person may remit the fine and other penalties without a personal
270     appearance before the court in any case charging a class B misdemeanor or lower offense,
271     unless the charge is:
272          (i) a domestic violence offense as defined in Section 77-36-1;
273          (ii) a violation of Section 41-6a-502, driving under the influence of alcohol, drugs, or a
274     combination of both or with specified or unsafe blood alcohol concentration;
275          (iii) a violation of Section 41-6a-517, driving with any measurable controlled substance
276     in the body; or
277          (iv) a violation of a local ordinance similar to the offenses described in Subsections
278     (1)(b)(i) through (iii).
279          (c) The remittal of fines and other penalties shall be entered as a conviction and treated
280     the same as if the accused pleaded no contest.
281          (d) If the person cited is under 18 years of age, the court shall promptly mail a copy of
282     the citation or a notice of the citation to the address given on the citation, to the attention of the
283     parent or guardian of the defendant.
284          (2) If the person pleads not guilty to the offense or offenses charged, further
285     proceedings shall be held in accordance with the Utah Rules of Criminal Procedure.
286          Section 11. Section 77-7-22 is repealed and reenacted to read:
287          77-7-22. Persons arrested pursuant to warrant -- Presentment to court --
288     Notification to court.
289          (1) A person arrested pursuant to a warrant:
290          (a) may, during court hours and if a judge is available, be delivered to the court issuing
291     the warrant;
292          (b) may be delivered to a custodial facility and, after booking, shall be released with
293     instructions to appear or contact the court if the person has met all conditions of release,
294     including posting any monetary bail set by the court;
295          (c) shall, if arrested on an out of state warrant pursuant to Section 77-7-18, be subject
296     to the conditions in Title 77, Chapter 30, Extradition;
297          (d) shall, if arrested and booked in the county in which the warrant was issued and is
298     not released pursuant to Subsection (1)(b), appear before the issuing court within three business
299     days of being booked; and
300          (e) shall, if arrested and booked in a county in which the warrant was issued and is not
301     released pursuant to Subsection (1)(b), be delivered to the issuing county no later than the
302     second business day after the defendant's holds in the arresting county are resolved.
303          (2) If a person is released under this section, the arresting officer or custodial authority
304     shall:
305          (a) notify the issuing court of the defendant's arrest and release; and
306          (b) forward any monetary amounts, surety information, and proof of compliance with
307     release conditions to the court.
308          (3) Nothing in Subsection (1)(e) prevents a court from arranging for temporary
309     transport, or video hearings, before the defendant is released in the arresting county.
310          Section 12. Section 77-7-23 is repealed and reenacted to read:
311          77-7-23. Delivery of person arrested without warrant to magistrate -- Release
312     unless probable cause to justify arrest -- Release if no formal charges filed -- Extensions
313     of time.
314          (1) When an arrest is made without a warrant by a peace officer, the peace officer shall
315     immediately:
316          (a) deliver the person to the court with jurisdiction over the offense; or
317          (b) deliver the person to a custodial facility and submit to a magistrate a sworn
318     statement of probable cause in accordance with the Utah Rules of Criminal Procedure.
319          (2) The magistrate shall determine if probable cause exists to justify the continued
320     detention of the defendant. The magistrate will determine pre-trial release in accordance with
321     Title 77, Chapter 20, Bail.
322          (3) When an arrest is made by a private person, that person shall immediately contact a
323     peace officer, who shall, if appropriate, take custody of the arrestee and comply with
324     Subsection (1).
325          (4) The custodial authority shall release any arrested person not later than 24 hours
326     after delivery to the facility unless a magistrate has found probable cause under Subsection
327     (1)(b) or has ordered an extension of the time to do so.
328          (5) The custodial authority shall release any arrested person who remains in custody at
329     5:00 p.m. on the third business day after the person is delivered to the facility, unless the
330     custodial authority receives from a prosecuting attorney or a court:
331          (a) notice of filing of an information or indictment, and a warrant or order of the court
332     setting monetary bail and any other conditions of release; or
333          (b) a judicial order extending the time to file an information or indictment.
334          (6) The custodial authority shall release the arrestee if a notice pursuant to Subsection
335     (4) or (5)(b) is not received by the expiration of the time set by the order.
336          Section 13. Section 77-18a-1 is amended to read:
337          77-18a-1. Appeals -- When proper.
338          (1) A defendant may, as a matter of right, appeal from:
339          (a) a final judgment of conviction, whether by verdict or plea;
340          (b) an order made after judgment that affects the substantial rights of the defendant;
341          (c) an order adjudicating the defendant's competency to proceed further in a pending
342     prosecution; or
343          (d) an order denying bail, as provided in Subsection [77-20-1(7)] 77-20-3(3).
344          (2) In addition to any appeal permitted by Subsection (1), a defendant may seek
345     discretionary appellate review of any interlocutory order.
346          (3) The prosecution may, as a matter of right, appeal from:
347          (a) a final judgment of dismissal, including a dismissal of a felony information
348     following a refusal to bind the defendant over for trial;
349          (b) a pretrial order dismissing a charge on the ground that the court's suppression of
350     evidence has substantially impaired the prosecution's case;
351          (c) an order granting a motion to withdraw a plea of guilty or no contest;
352          (d) an order arresting judgment or granting a motion for merger;
353          (e) an order terminating the prosecution because of a finding of double jeopardy or
354     denial of a speedy trial;
355          (f) an order granting a new trial;
356          (g) an order holding a statute or any part of it invalid;
357          (h) an order adjudicating the defendant's competency to proceed further in a pending
358     prosecution;
359          (i) an order finding, pursuant to Title 77, Chapter 19, Part 2, Competency for
360     Execution, that an inmate sentenced to death is incompetent to be executed;
361          (j) an order reducing the degree of offense pursuant to Section 76-3-402; or
362          (k) an illegal sentence.
363          (4) In addition to any appeal permitted by Subsection (3), the prosecution may seek
364     discretionary appellate review of any interlocutory order entered before jeopardy attaches.
365          Section 14. Section 77-20-1 is repealed and reenacted to read:
366          77-20-1. Right to bail -- Denial of bail -- Hearing.
367          (1) A person charged with or arrested for a criminal offense shall be eligible for
368     pre-trial release on conditions set by a magistrate or judge in accordance with this title, the
369     Utah Rules of Criminal Procedure, and the policies of the Judicial Council. However, a
370     magistrate or judge may deny pre-trial release if a person is arrested for, or charged with a:
371          (a) capital felony, and the court finds there is substantial evidence to support the
372     charge;
373          (b) felony supported by substantial evidence and the offense is alleged to have occurred
374     while the person was on probation, parole, or pre-trial release on a previous felony charge;
375          (c) felony supported by substantial evidence and the court finds by clear and
376     convincing evidence that the person would constitute a substantial danger to any other person,
377     the community, or is likely to flee the jurisdiction of the court if released and any available
378     conditions of release would not satisfactorily mitigate that risk;
379          (d) felony supported by substantial evidence and the court finds that the person violated
380     a material condition of pre-trial release in the present case; or
381          (e) domestic violence offense alleged to have been committed against an intimate
382     partner, as defined in 18 U.S.C. Sec. 921, if:
383          (i) the court finds by clear and convincing evidence that the person would constitute a
384     substantial danger to the victim if released on bail; or
385          (ii) the person was on pre-trail release for a domestic violence offense alleged against
386     the same intimate partner.
387          (2) For purposes of this chapter, any arrest or charge for a violation of Section
388     76-5-202, aggravated murder, is a capital felony unless:
389          (a) the prosecutor files a notice of intent not to seek the death penalty; or
390          (b) the time for filing a notice to seek the death penalty has expired and the prosecutor
391     has not filed a notice.
392          (3) A person arrested for a violation of a jail release agreement or jail release order
393     pursuant to Section 77-36-2.5:
394          (a) may not be released before the expiration of the time to file an information pursuant
395     to Section 77-7-23, or any allowed extension of that time; and
396          (b) may not be released before the defendant's initial appearance in court pursuant to
397     Section 77-36-2.6 if an information or indictment are filed alleging a violation of that section
398     and the person is in custody.
399          (4) If during the time described in Subsection (3)(a) the custodial authority is notified
400     by the appropriate prosecutorial authority that it declines to file charges, the person shall be
401     released on those charges.
402          (5) During the hearing described in Subsection (3)(b) the court may deny bail pursuant
403     to Subsection (1)(e), if appropriate.
404          (6) Any person eligible for pre-trial release may be released either on the person's own
405     recognizance or upon the least restrictive conditions that the judge or magistrate finds will
406     reasonably:
407          (a) ensure the appearance of the accused;
408          (b) ensure the integrity of the court process;
409          (c) prevent direct or indirect contact with witnesses or victims by the accused, if
410     appropriate; and
411          (d) ensure the safety of the public.
412          Section 15. Section 77-20-1.5 is enacted to read:
413          77-20-1.5. Pre-trial policies -- Judicial Council.
414          (1) The Judicial Council shall create uniform policies and procedures to assist
415     magistrates and judges in making pre-trial release decisions that comply with the goals of
416     Subsection 77-20-1(6).
417          (2) The Judicial Council shall ensure that the policies reflect best practices concerning
418     risk assessment and the appropriate use of and reliance on different tools for ensuring that the
419     public safety is protected and the efficient administration of justice is promoted.
420          Section 16. Section 77-20-1.6 is enacted to read:
421          77-20-1.6. Pre-trial release conditions.
422          As used in this title, pre-trial release conditions may include:
423          (1) the posting of monetary bail as defined in Section 77-20-4 in the least amount
424     calculated to guarantee the appearance of an arrestee or defendant as required;
425          (2) an order to not commit a federal, state, or local crime during the period of release;
426          (3) abiding by specified restrictions on personal associations, place of abode, or travel;
427          (4) reporting on a regular basis to pre-trial services or other designated agency;
428          (5) complying with a specified curfew;
429          (6) not using alcohol, or any narcotic drug or other controlled substances except as
430     prescribed by a licensed medical practitioner; and
431          (7) other conditions that are reasonably necessary to ensure the appearance of the
432     defendant as required and to assure the safety of any other person and the community.
433          Section 17. Section 77-20-3 is repealed and reenacted to read:
434          77-20-3. Pre-trial Release -- Modifying conditions of release.
435          (1) The initial order establishing conditions of release or denying bail shall be issued:
436          (a) by a magistrate at the time probable cause is determined; or
437          (b) by the court upon the filing of an information or indictment, if a defendant has not
438     previously been arrested.
439          (2) Subsequent review and modifications shall be conducted in accordance with the
440     Utah Rules of Criminal Procedure.
441          (3) Notwithstanding Section 78A-7-118, an appeal may be taken from an order of any
442     court denying pre-trial release in accordance with the Utah Rules of Appellate Procedure and
443     Utah Rules of Criminal Procedure. The appellate court shall review if the determination is
444     made in accordance with Section 77-20-1.
445          Section 18. Section 77-20-4 is amended to read:
446          77-20-4. Monetary bail to be posted in cash, by credit or debit card, or by written
447     undertaking.
448          [(1) Bail may be posted:]
449          (1) For purposes of this chapter, "monetary bail" means any amount of financial
450     security that a court orders posted to ensure a person's continued appearance at court hearings.
451          (2) Monetary bail may be posted:
452          (a) in cash;
453          (b) by [written undertaking with or without sureties at the discretion of the magistrate;
454     or] execution of a bail bond surety under Title 31A, Chapter 35, Bail Bond Act;
455          (c) by credit or debit card, at the discretion of the [judge or bail commissioner.]
456     custodial authority; or
457          (d) by written undertaking guaranteed by sureties with a net worth of at least twice the
458     amount of the undertaking, exclusive of property exempt from execution.
459          [(2) Bail may not be accepted without receiving in writing at the time the bail is posted
460     the current mailing address and telephone number of the surety.]
461          (3) A court may limit a defendant to posting a certain type of monetary bail if the court
462     determines that the restriction is necessary to reasonably guarantee the defendant's appearance
463     or the integrity of the court process.
464          [(3) Bail posted] (4) Amounts paid by debit or credit card, less the fee charged by the
465     financial institution, shall be tendered to the courts.
466          [(4) Bail] (5) Amounts refunded by the court may be refunded by credit to the debit or
467     credit card, or cash. The amount refunded shall be the full amount received by the court under
468     Subsection [(3)] (4), which may be less than the full amount of the bail set by the court.
469          [(5)] (6) Before refunding [bail that is] amounts posted [by the defendant] in cash, by
470     credit card, or by debit card, the court may apply the amount posted toward criminal judgement
471     accounts receivable, as defined in Section [76-3-201.1] 76-3-201, that are owed by the
472     defendant in the priority set forth in Section 77-38a-404.
473          (7) If a defendant fails to appear after posting monetary bail in the form of cash or
474     credit card payment in a case for which a personal appearance is not required by the uniform
475     fine schedule or court order, the court may enter a conviction and apply the monetary bail to
476     fines and other penalties. The court shall then close the case.
477          Section 19. Section 77-20-5 is repealed and reenacted to read:
478          77-20-5. Qualifications of sureties -- Justification -- Requirements of undertaking.
479          (1) Each surety described in Subsection 77-20-4(1)(d) shall justify by affidavit upon
480     the undertaking and each may be further examined upon oath by the magistrate or by the
481     prosecuting attorney in the presence of a magistrate, in respect to the surety's property and net
482     worth.
483          (2) The undertaking shall, in addition to other requirements, provide that each surety
484     submit to the jurisdiction of the court and irrevocably appoint the clerk of the court as the
485     surety's agent upon whom any papers affecting the surety's liability on the undertaking may be
486     served, and that the surety's liability may be enforced on motion and upon any notice the court
487     may require without the necessity of an independent action.
488          (3) The sureties shall also comply with Utah Rules of Civil Procedure, Rule 72.
489          Section 20. Section 77-20-7 is amended to read:
490          77-20-7. Duration of liability on undertaking -- Notices to sureties -- Exoneration
491     if charges not filed.
492          (1) (a) Except as provided in Subsection (1)(b), the principal and the sureties on [the] a
493     bail bond or other written undertaking are liable on the bond or undertaking during all
494     proceedings and for all court appearances required of the defendant up to and including the
495     surrender of the defendant for sentencing, irrespective of any contrary provision in the bond or
496     undertaking. Any failure of the defendant to appear when required is a breach of the conditions
497     of the bond or undertaking [or bail] and subjects it to forfeiture as provided in Title 77, Chapter
498     20b, Bail Surety, regardless of whether or not notice of appearance was given to the sureties.
499     Upon sentencing, the bond or undertaking shall be exonerated without motion.
500          (b) If the sentence includes a commitment to a jail or prison, the bond or undertaking
501     shall be exonerated when the defendant appears at the appropriate jail or prison, unless the
502     judge doesn't require the defendant to begin the commitment within seven days, in which case
503     the bond or undertaking is exonerated upon sentencing.
504          (c) For purposes of this section, an order of the court accepting a plea in abeyance
505     agreement and holding that plea in abeyance pursuant to Title 77, Chapter 2a, Pleas in
506     Abeyance, is considered to be the same as a sentencing upon a guilty plea.
507          (d) Any suspended or deferred sentencing is not the responsibility of the surety and the
508     bond is exonerated without any motion, upon acceptance of the court and the defendant of a
509     plea in abeyance, probation, fine payments, post sentencing reviews, or any other deferred
510     sentencing reviews or any other deferred sentencing agreement.
511          (e) If a surety issues a bond after [the] sentencing, the surety is liable on the
512     undertaking during all proceedings and for all court appearances required of the defendant up
513     to and including the defendant's appearance to commence serving the sentence imposed under
514     Subsection (1).
515          [(2) If no information or indictment charging a person with an offense is filed in court
516     within 120 days after the date of the bail undertaking or cash receipt, the court may relieve a
517     person from conditions of release at the person's request, and the bond or undertaking is
518     exonerated without further order of the court unless the prosecutor requests an extension of
519     time before the end of the 120-day period by:]
520          [(a) filing a notice for extension with the court; and]
521          [(b) serving the notice for extension upon the sureties and the person or his attorney.]
522          [(3) A court may extend bail and conditions of release for good cause.]
523          (2) If no information, indictment, or request to extend time to file by the prosecutor is
524     filed in court within 120 days after the ordered release on conditions, the court shall:
525          (a) relieve a person from the conditions of release;
526          (b) refund as provided in Subsection 77-20-4(5) any monetary bail to the person; and
527          (c) exonerate any bond or undertaking without further order of the court.
528          (3) A request to extend time:
529          (a) shall be served on any surety and the arrested person or the arrested person's
530     attorney;
531          (b) shall be granted by the court for a period of up to 60 days; or
532          (c) may be granted for a period of up to 120 days upon a showing of good cause.
533          (4) [Subsection (2)] An extension of time sought or granted under this section does not
534     prohibit the otherwise proper filing of charges against a person at any time.
535          [(5) If the court does not set on a calendar any hearings on a case within 18 months of
536     the last court docket activity on a case, the undertaking of bail is exonerated without motion.]
537          Section 21. Section 77-20-8 is amended to read:
538          77-20-8. Grounds for detaining or releasing defendant on conviction and prior to
539     sentence.
540          (1) Upon conviction[,] for a felony, whether by plea or trial, the court shall order [that]
541     the [convicted] defendant [who is waiting imposition or execution of sentence] be detained
542     until the time for sentencing, unless the court finds by clear and convincing evidence presented
543     by the defendant that the defendant is not likely to flee the jurisdiction of the court, and will not
544     pose a danger to the physical, psychological, or financial and economic safety or well-being of
545     any other person or the community if released.
546          (2) Upon conviction for a misdemeanor, whether by plea or trial, the court may order
547     the defendant be detained until the time for sentencing if the court finds by a preponderance of
548     the evidence that the defendant is likely to flee the jurisdiction of the court, or poses a danger to
549     the physical, psychological, or financial and economic safety or well-being of any other person
550     or the community if released.
551          [(2)] (3) If the court finds the defendant does not need to be detained, the court shall
552     order the release of the defendant on suitable conditions, which may include the conditions
553     under Subsection 77-20-10(2).
554          Section 22. Section 77-20-8.5 is amended to read:
555          77-20-8.5. Sureties -- Surrender of defendant -- Arrest of defendant.
556          (1) (a) Sureties may at any time prior to a defendant's failure to appear surrender the
557     defendant and obtain exoneration of bail, by notifying the clerk of the court in which the bail
558     was posted of the defendant's surrender and requesting exoneration. Notification shall be made
559     immediately following the surrender by surface mail, electronic mail, or fax.
560          (b) To effect surrender, a certified copy of the surety's undertaking from the court in
561     which it was posted or a copy of the bail agreement with the defendant shall be delivered to the
562     on-duty jailer, who shall detain the defendant in the on-duty jailer's custody as upon a
563     commitment, and shall in writing acknowledge the surrender upon the copy of the undertaking
564     or bail agreement. The certified copy of the undertaking or copy of the bail agreement upon
565     which the acknowledgment of surrender is endorsed shall be filed with the court. The court
566     may then, upon proper application, order the undertaking exonerated and [may] shall order a
567     refund of any paid premium, or part of a premium, as it finds just.
568          (2) For the purpose of surrendering the defendant, the sureties may:
569          (a) arrest the defendant:
570          (i) at any time before the defendant is finally exonerated; and
571          (ii) at any place within the state; and
572          (b) surrender the defendant to any county jail booking facility in Utah.
573          (3) An arrest under this section is not a basis for exoneration of the bond under Section
574     77-20b-101.
575          (4) A surety acting under this section is subject to Title 53, Chapter 11, Bail Bond
576     Recovery Act.
577          Section 23. Section 77-20-9 is amended to read:
578          77-20-9. Disposition of forfeitures.
579          If by reason of the neglect of the defendant to appear, money deposited [instead of bail]
580     as a financial condition or money paid by sureties on surety bond is forfeited and the forfeiture
581     is not discharged or remitted, the clerk with whom it is deposited or paid shall, immediately
582     after final adjournment of the court, pay over the money forfeited as follows:
583          (1) the forfeited [bail] amount in cases in or appealed from district courts shall be
584     distributed as provided in Section 78A-5-110;
585          (2) the forfeited [bail] amount in cases in precinct justice courts or in municipal justice
586     courts shall be distributed as provided in Sections 78A-7-120 and 78A-7-121;
587          (3) the forfeited [bail] amount in cases in justice courts where the offense is not triable
588     in that court shall be paid into the General Fund; and
589          (4) the forfeited [bail] amount in cases not provided for in this section shall be paid
590     50% to the state treasurer and the remaining 50% to the county treasurer in the county in which
591     the violation occurred or the forfeited [bail] amount is collected.
592          Section 24. Section 78A-2-220 is amended to read:
593          78A-2-220. Authority of magistrate.
594          (1) Except as otherwise provided by law, a magistrate as defined in Section 77-1-3
595     shall have the authority to:
596          (a) commit a person to incarceration prior to trial;
597          (b) set or deny bail under Section 77-20-1 and release upon the payment of bail and
598     satisfaction of any other conditions of release;
599          (c) issue to any place in the state summonses and warrants of search and arrest and
600     authorize administrative traffic checkpoints under Section 77-23-104;
601          (d) conduct an initial appearance;
602          (e) conduct arraignments;
603          (f) conduct a preliminary examination to determine probable cause;
604          (g) appoint attorneys and order recoupment of attorney fees;
605          (h) order the preparation of presentence investigations and reports;
606          (i) issue temporary orders as provided by rule of the Judicial Council; and
607          (j) perform any other act or function authorized by statute.
608          (2) A judge of the justice court may exercise the authority of a magistrate specified in
609     Subsection (1) with the following limitations:
610          (a) a judge of the justice court may conduct an initial appearance, preliminary
611     examination, or arraignment as provided by rule of the Judicial Council; and
612          (b) a judge of the justice court may not [set bail] perform any act or function in a
613     capital felony [nor deny bail in any] case.
614          Section 25. Section 78B-6-301 is amended to read:
615          78B-6-301. Acts and omissions constituting contempt.
616          The following acts or omissions in respect to a court or its proceedings are contempts of
617     the authority of the court:
618          (1) disorderly, contemptuous, or insolent behavior toward the judge while holding the
619     court, tending to interrupt the course of a trial or other judicial proceeding;
620          (2) breach of the peace, boisterous conduct or violent disturbance, tending to interrupt
621     the due course of a trial or other judicial proceeding;
622          (3) misbehavior in office, or other willful neglect or violation of duty by an attorney,
623     counsel, clerk, sheriff, or other person appointed or elected to perform a judicial or ministerial
624     service;
625          (4) deceit, or abuse of the process or proceedings of the court, by a party to an action or
626     special proceeding;
627          (5) disobedience of any lawful judgment, order or process of the court;
628          (6) acting as an officer, attorney or counselor, of a court without authority;
629          (7) rescuing any person or property that is in the custody of an officer by virtue of an
630     order or process of the court;
631          (8) unlawfully detaining a witness or party to an action while going to, remaining at, or
632     returning from, the court where the action is on the calendar for trial;
633          (9) any other unlawful interference with the process or proceedings of a court;
634          (10) disobedience of a subpoena duly served, or refusing to be sworn or to answer as a
635     witness;
636          (11) when summoned as a juror in a court, neglecting to attend or serve, or improperly
637     conversing with a party to an action to be tried at the court, or with any other person,
638     concerning the merits of an action, or receiving a communication from a party or other person
639     in respect to it, without immediately disclosing the communication to the court; [and]
640          (12) willfully failing to appear before a court pursuant to a citation issued under the
641     provisions of Section 77-7-18; and
642          [(12)] (13) disobedience by an inferior tribunal, magistrate or officer of the lawful
643     judgment, order or process of a superior court, or proceeding in an action or special proceeding
644     contrary to law, after the action or special proceeding is removed from the jurisdiction of the
645     inferior tribunal, magistrate or officer. Disobedience of the lawful orders or process of a
646     judicial officer is also a contempt of the authority of the officer.
647          Section 26. Repealer.
648          This bill repeals:
649          Section 10-3-920, Bail commissioner -- Powers and duties.
650          Section 10-3-921, Fines -- Collection by bail commissioner -- Disposition.
651          Section 10-3-922, Term of bail commissioners -- Salary -- Bond and oath.
652          Section 17-32-1, Powers and duties of bail commissioners.
653          Section 17-32-2, Collection of fines by bail commissioners -- Disposition.
654          Section 17-32-3, Term of bail commissioners -- No additional compensation --
655     Bond and oath.
656          Section 17-32-4, Oaths and bonds to be filed.
657          Section 77-7-24, Notice to appear in court -- Contents -- Promise to comply --
658     Signing -- Release from custody -- Official misconduct.
659          Section 77-7-25, Keeping of records -- Making and forwarding of abstract upon
660     conviction or forfeiture of bail -- Form and contents -- Official misconduct.
661          Section 77-7-26, Improper disposition or cancellation of notice to appear or traffic
662     citation -- Official misconduct -- Misdemeanor.




Legislative Review Note
Office of Legislative Research and General Counsel