1
2
3
4
5
6
7 LONG TITLE
8 General Description:
9 This bill amends the Cohabitant Abuse Procedures Act in relation to sentencing and
10 conditional release from jail.
11 Highlighted Provisions:
12 This bill:
13 ▸ defines terms;
14 ▸ prevents the release of a person arrested for a domestic violence offense before
15 appearing before a magistrate or signing a jail release agreement;
16 ▸ requires the arresting officer to:
17 • provide certain notices to the alleged victim and the person arrested for
18 domestic violence; and
19 • inform the magistrate if the alleged victim waives certain release conditions;
20 ▸ creates certain procedures for the release of a person arrested for domestic violence
21 between the person's appearance before a magistrate and the person's appearance
22 before a court;
23 ▸ amends a sentencing requirement regarding treatment or therapy in a domestic
24 violence treatment program; and
25 ▸ makes technical changes.
26 Money Appropriated in this Bill:
27 None
28 Other Special Clauses:
29 None
30 Utah Code Sections Affected:
31 AMENDS:
32 77-36-1, as last amended by Laws of Utah 2015, Chapter 426
33 77-36-2.5, as last amended by Laws of Utah 2013, Chapters 245 and 278
34 77-36-5, as last amended by Laws of Utah 2010, Chapter 384
35
36 Be it enacted by the Legislature of the state of Utah:
37 Section 1. Section 77-36-1 is amended to read:
38 77-36-1. Definitions.
39 As used in this chapter:
40 (1) "Cohabitant" [
41 Section 78B-7-102.
42 (2) "Department" means the Department of Public Safety.
43 (3) "Divorced" means an individual who has obtained a divorce under Title 30, Chapter
44 3, Divorce.
45 (4) "Domestic violence" or "domestic violence offense" means any criminal offense
46 involving violence or physical harm or threat of violence or physical harm, or any attempt,
47 conspiracy, or solicitation to commit a criminal offense involving violence or physical harm,
48 when committed by one cohabitant against another. "Domestic violence" or "domestic
49 violence offense" also means commission or attempt to commit, any of the following offenses
50 by one cohabitant against another:
51 (a) aggravated assault, as described in Section 76-5-103;
52 (b) assault, as described in Section 76-5-102;
53 (c) criminal homicide, as described in Section 76-5-201;
54 (d) harassment, as described in Section 76-5-106;
55 (e) electronic communication harassment, as described in Section 76-9-201;
56 (f) kidnapping, child kidnapping, or aggravated kidnapping, as described in Sections
57 76-5-301, 76-5-301.1, and 76-5-302;
58 (g) mayhem, as described in Section 76-5-105;
59 (h) sexual offenses, as described in Title 76, Chapter 5, Part 4, Sexual Offenses, and
60 Section 76-5b-201, Sexual Exploitation of a Minor;
61 (i) stalking, as described in Section 76-5-106.5;
62 (j) unlawful detention or unlawful detention of a minor, as described in Section
63 76-5-304;
64 (k) violation of a protective order or ex parte protective order, as described in Section
65 76-5-108;
66 (l) any offense against property described in Title 76, Chapter 6, Part 1, Property
67 Destruction, Title 76, Chapter 6, Part 2, Burglary and Criminal Trespass, or Title 76, Chapter 6,
68 Part 3, Robbery;
69 (m) possession of a deadly weapon with intent to assault, as described in Section
70 76-10-507;
71 (n) discharge of a firearm from a vehicle, near a highway, or in the direction of any
72 person, building, or vehicle, as described in Section 76-10-508;
73 (o) disorderly conduct, as defined in Section 76-9-102, if a conviction of disorderly
74 conduct is the result of a plea agreement in which the defendant was originally charged with a
75 domestic violence offense otherwise described in this Subsection (4). Conviction of disorderly
76 conduct as a domestic violence offense, in the manner described in this Subsection (4)(o), does
77 not constitute a misdemeanor crime of domestic violence under 18 U.S.C. [
78 and is exempt from the provisions of the federal Firearms Act, 18 U.S.C. [
79 seq.; or
80 (p) child abuse as described in Section 76-5-109.1.
81 (5) "Jail release agreement" means a written agreement:
82 (a) specifying and limiting the contact a person arrested for a domestic violence offense
83 may have with an alleged victim or other specified individuals; and
84 (b) specifying other conditions of release from jail as required in Subsection
85 77-36-2.5(2).
86 (6) "Jail release court order" means a written court order:
87 (a) specifying and limiting the contact a person arrested for a domestic violence offense
88 may have with an alleged victim or other specified individuals; and
89 (b) specifying other conditions of release from jail as required in Subsection
90 77-36-2.5(2).
91 (7) "Marital status" means married and living together, divorced, separated, or not
92 married.
93 (8) "Married and living together" means a man and a woman whose marriage was
94 solemnized under Section 30-1-4 or 30-1-6 and who are living in the same residence.
95 (9) "Not married" means any living arrangement other than married and living together,
96 divorced, or separated.
97 (10) "Pretrial protective order" means a written order:
98 (a) specifying and limiting the contact a person who has been charged with a domestic
99 violence offense may have with an alleged victim or other specified individuals; and
100 (b) specifying other conditions of release pursuant to Subsection 77-36-2.5[
101 Subsection 77-36-2.6(3), or Section 77-36-2.7, pending trial in the criminal case.
102 (11) "Sentencing protective order" means a written order of the court as part of
103 sentencing in a domestic violence case that limits the contact a person who has been convicted
104 of a domestic violence offense may have with a victim or other specified individuals pursuant
105 to Sections 77-36-5 and 77-36-5.1.
106 (12) "Separated" means a man and a woman who have had their marriage solemnized
107 under Section 30-1-4 or 30-1-6 and who are not living in the same residence.
108 (13) "Victim" means a cohabitant who has been subjected to domestic violence.
109 Section 2. Section 77-36-2.5 is amended to read:
110 77-36-2.5. Conditions for release after arrest for domestic violence -- Jail release
111 agreements -- Jail release court orders.
112 (1) (a) Upon arrest for domestic violence, and before the person is released on bail,
113 recognizance, or otherwise, the person may not personally contact the alleged victim of
114 domestic violence.
115 (b) A person who violates Subsection (1)(a) is guilty of a class B misdemeanor.
116 (2) (a) [
117 released [
118
119
120 (i) the matter is submitted to a magistrate in accordance with Section 77-7-23; or
121 (ii) the offender signs a jail release agreement in accordance with Subsection (2)(d)(i).
122 [
123 [
124 [
125
126 (b) The arresting officer shall ensure that the information presented to the magistrate
127 includes whether the victim has made a waiver described in Subsection (5)(a).
128 (c) If the magistrate determines there is probable cause to support the charge or charges
129 of domestic violence, the magistrate shall determine:
130 (i) whether grounds exist to hold the arrested person without bail, in accordance with
131 Section 77-20-1;
132 (ii) if no grounds exist to hold the arrested person without bail, whether any release
133 conditions, including electronic monitoring, are necessary to protect the victim; or
134 (iii) any bail that is required to guarantee the defendant's subsequent appearance in
135 court.
136 (d) (i) The magistrate may not release a person arrested for domestic violence before
137 the initial court appearance, before the court with jurisdiction over the offense for which the
138 person was arrested, unless the arrested person agrees in writing or the magistrate orders, as a
139 release condition, that, until the arrested person appears at the initial court appearance, the
140 person will not:
141 (A) have personal contact with the alleged victim;
142 (B) threaten or harass the alleged victim; or
143 (C) knowingly enter onto the premises of the alleged victim's residence or any premises
144 temporarily occupied by the alleged victim.
145 (ii) The magistrate shall schedule the appearance described in Subsection (2)(d)(i) to
146 take place no more than 96 hours after the time of the arrest.
147 (iii) The arrested person may make the appearance described in Subsection (2)(d)(i) by
148 video if the arrested person is not released.
149 (3) (a) If a person charged with domestic violence fails to appear at the time scheduled
150 by the magistrate to appear, as described in Subsection (2)(d), the person shall comply with the
151 release conditions described in Subsection (2)(d)(i) until the arrested person makes an initial
152 appearance.
153 (b) If the prosecutor has not filed charges against a person who was arrested for a
154 domestic violence offense and who appears in court at the time scheduled by the magistrate
155 under Subsection (2)(d), or by the court under Subsection (3)(b)(ii), the court:
156 (i) may, upon the motion of the prosecutor and after allowing the arrested person an
157 opportunity to be heard on the motion, extend the release conditions described in Subsection
158 (2)(d)(i) by no more than three court days; and
159 (ii) if the court grants the motion described in Subsection (3)(b)(i), shall order the
160 arrested person to appear at a time scheduled before the end of the granted extension.
161 [
162 [
163 midnight on the day on which the person arrested [
164
165 [
166
167
168 [
169
170
171 [
172
173
174
175 [
176
177
178 [
179
180 (5) (a) Subsequent to an arrest for domestic violence, an alleged victim may waive in
181 writing [
182 (C). Upon waiver, those release conditions do not apply to the alleged perpetrator.
183 (b) A court or magistrate may modify the release conditions described in Subsection
184 (2)[
185 (6) (a) When a person is released pursuant to Subsection (2), the releasing agency shall
186 notify the arresting law enforcement agency of the release, conditions of release, and any
187 available information concerning the location of the victim. The arresting law enforcement
188 agency shall then make a reasonable effort to notify the victim of that release.
189 (b) (i) When a person is released pursuant to Subsection (2) based on a written jail
190 release agreement, the releasing agency shall transmit that information to the statewide
191 domestic violence network described in Section 78B-7-113.
192 (ii) When a person is released pursuant to [
193 through (4) based upon a jail release court order or if a written jail release agreement is
194 modified pursuant to Subsection (5)(b), the court shall transmit that order to the statewide
195 domestic violence network described in Section 78B-7-113.
196 (iii) A copy of the jail release court order or written jail release agreement shall be
197 given to the person by the releasing agency before the person is released.
198 (c) This Subsection (6) does not create or increase liability of a law enforcement officer
199 or agency, and the good faith immunity provided by Section 77-36-8 is applicable.
200 (7) (a) If a law enforcement officer has probable cause to believe that a person has
201 violated a jail release court order or jail release agreement executed pursuant to Subsection (2)
202 the officer shall, without a warrant, arrest the alleged violator.
203 (b) Any person who knowingly violates a jail release court order or jail release
204 agreement executed pursuant to Subsection (2) is guilty as follows:
205 (i) if the original arrest was for a felony, an offense under this section is a third degree
206 felony; or
207 (ii) if the original arrest was for a misdemeanor, an offense under this section is a class
208 A misdemeanor.
209 (c) City attorneys may prosecute class A misdemeanor violations under this section.
210 (8) An individual who was originally arrested for a felony under this chapter and
211 released pursuant to this section may subsequently be held without bail if there is substantial
212 evidence to support a new felony charge against him.
213 (9) At the time an arrest is made for domestic violence [
214 shall provide the alleged victim with written notice containing:
215 (a) the release conditions described in [
216 notice that [
217 court with jurisdiction over the offense for which the alleged perpetrator was arrested, unless:
218 (i) the alleged perpetrator enters into a written agreement to comply with the release
219 conditions; or
220 (ii) the magistrate orders the release conditions [
221
222 (b) notification of the penalties for violation of any jail release court order or any jail
223 release agreement executed under Subsection (2);
224 (c) notification that the alleged perpetrator is to personally appear in court on the next
225 day the court is open for business after the day of the arrest;
226 (d) the address of the appropriate court in the district or county in which the alleged
227 victim resides;
228 (e) the availability and effect of any waiver of the release conditions; and
229 (f) information regarding the availability of and procedures for obtaining civil and
230 criminal protective orders with or without the assistance of an attorney.
231 (10) At the time an arrest is made for domestic violence [
232 shall provide the alleged perpetrator with written notice containing:
233 (a) notification that the alleged perpetrator may not contact the alleged victim before
234 being released;
235 (b) the release conditions described in [
236 notice that [
237 court with jurisdiction over the offense for which the alleged perpetrator was arrested, unless:
238 (i) the alleged perpetrator enters into a written agreement to comply with the release
239 conditions; or
240 (ii) the magistrate orders the release conditions [
241
242 (c) notification of the penalties for violation of any jail release court order or any
243 written jail release agreement executed under Subsection (2); and
244 (d) notification that the alleged perpetrator is to personally appear in court on the next
245 day the court is open for business after the day of the arrest.
246 [
247
248
249 [
250
251
252
253 [
254 of the unique and highly emotional nature of domestic violence crimes, the high recidivism rate
255 of violent offenders, and the demonstrated increased risk of continued acts of violence
256 subsequent to the release of an offender who has been arrested for domestic violence, it is the
257 finding of the Legislature that domestic violence crimes, as defined in Section 77-36-1, are
258 crimes for which bail may be denied if there is substantial evidence to support the charge, and
259 if the court finds by clear and convincing evidence that the alleged perpetrator would constitute
260 a substantial danger to an alleged victim of domestic violence if released on bail.
261 Section 3. Section 77-36-5 is amended to read:
262 77-36-5. Sentencing -- Restricting contact with victim -- Electronic monitoring --
263 Counseling -- Cost assessed against defendant -- Sentencing protective order.
264 (1) (a) When a defendant is found guilty of a crime involving domestic violence and a
265 condition of the sentence restricts the defendant's contact with the victim, a sentencing
266 protective order may be issued under Subsection 77-36-5.1(2) for the length of the defendant's
267 probation.
268 (b) (i) The sentencing protective order shall be in writing, and the prosecutor shall
269 provide a certified copy of that order to the victim.
270 (ii) The court shall transmit the sentencing protective order to the statewide domestic
271 violence network.
272 (c) Violation of a sentencing protective order issued pursuant to this Subsection (1) is a
273 class A misdemeanor.
274 (2) In determining its sentence the court, in addition to penalties otherwise provided by
275 law, may require the defendant to participate in an electronic or other type of monitoring
276 program.
277 (3) The court may also require the defendant to pay all or part of the costs of
278 counseling incurred by the victim and any children affected by or exposed to the domestic
279 violence offense, as well as the costs for the defendant's own counseling.
280 (4) The court shall:
281 (a) assess against the defendant, as restitution, any costs for services or treatment
282 provided to the victim and affected children of the victim or the defendant by the Division of
283 Child and Family Services under Section 62A-4a-106; and
284 (b) order those costs to be paid directly to the division or its contracted provider.
285 (5) The court [
286 treatment or therapy in a domestic violence treatment program, as defined in Section
287 62A-2-101, that is licensed by the Department of Human Services[
288
289