1     
DRUG AND ALCOHOL TREATMENT RELATED TO BAIL

2     
AMENDMENTS

3     
2017 GENERAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: Edward H. Redd

6     
Senate Sponsor: ____________

7     

8     LONG TITLE
9     General Description:
10          This bill modifies provisions related to court actions and drug and alcohol treatment.
11     Highlighted Provisions:
12          This bill:
13          ▸     provides drug or alcohol detoxification procedures as an alternative to bail
14     requirements; and
15          ▸     makes technical changes.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          None
20     Utah Code Sections Affected:
21     AMENDS:
22          77-18a-1, as last amended by Laws of Utah 2016, Chapter 234
23          77-20-1, as last amended by Laws of Utah 2016, Chapter 234
24     

25     Be it enacted by the Legislature of the state of Utah:
26          Section 1. Section 77-18a-1 is amended to read:
27          77-18a-1. Appeals -- When proper.
28          (1) A defendant may, as a matter of right, appeal from:
29          (a) a final judgment of conviction, whether by verdict or plea;
30          (b) an order made after judgment that affects the substantial rights of the defendant;
31          (c) an order adjudicating the defendant's competency to proceed further in a pending
32     prosecution; or
33          (d) an order denying bail, as provided in Subsection 77-20-1[(8)](9).
34          (2) In addition to any appeal permitted by Subsection (1), a defendant may seek
35     discretionary appellate review of any interlocutory order.
36          (3) The prosecution may, as a matter of right, appeal from:
37          (a) a final judgment of dismissal, including a dismissal of a felony information
38     following a refusal to bind the defendant over for trial;
39          (b) a pretrial order dismissing a charge on the ground that the court's suppression of
40     evidence has substantially impaired the prosecution's case;
41          (c) an order granting a motion to withdraw a plea of guilty or no contest;
42          (d) an order arresting judgment or granting a motion for merger;
43          (e) an order terminating the prosecution because of a finding of double jeopardy or
44     denial of a speedy trial;
45          (f) an order granting a new trial;
46          (g) an order holding a statute or any part of it invalid;
47          (h) an order adjudicating the defendant's competency to proceed further in a pending
48     prosecution;
49          (i) an order finding, pursuant to Title 77, Chapter 19, Part 2, Competency for
50     Execution, that an inmate sentenced to death is incompetent to be executed;
51          (j) an order reducing the degree of offense pursuant to Section 76-3-402; or
52          (k) an illegal sentence.
53          (4) In addition to any appeal permitted by Subsection (3), the prosecution may seek
54     discretionary appellate review of any interlocutory order entered before jeopardy attaches.
55          Section 2. Section 77-20-1 is amended to read:
56          77-20-1. Right to bail -- Denial of bail -- Hearing -- Alternative to bail.
57          (1) As used in this chapter:
58          (a) "Bail bond agency" means the same as that term is defined in Section 31A-35-102.
59          (b) "Surety" and "sureties" mean a surety insurer or a bail bond agency.
60          (c) "Surety insurer" means the same as that term is defined in Section 31A-35-102.
61          (2) A person charged with or arrested for a criminal offense shall be admitted to bail as
62     a matter of right, except if the person is charged with a:
63          (a) capital felony, when the court finds there is substantial evidence to support the
64     charge;
65          (b) felony committed while on probation or parole, or while free on bail awaiting trial
66     on a previous felony charge, when the court finds there is substantial evidence to support the
67     current felony charge;
68          (c) felony when there is substantial evidence to support the charge and the court finds
69     by clear and convincing evidence that the person would constitute a substantial danger to any
70     other person or to the community, or is likely to flee the jurisdiction of the court, if released on
71     bail; or
72          (d) felony when the court finds there is substantial evidence to support the charge and
73     it finds by clear and convincing evidence that the person violated a material condition of
74     release while previously on bail.
75          (3) Any person who may be admitted to bail may be released either on the person's own
76     recognizance or upon posting bail, on condition that the person appear in court for future court
77     proceedings in the case, and on any other conditions imposed in the discretion of the magistrate
78     or court that will reasonably:
79          (a) ensure the appearance of the accused;
80          (b) ensure the integrity of the court process;
81          (c) prevent direct or indirect contact with witnesses or victims by the accused, if
82     appropriate; and
83          (d) ensure the safety of the public.
84          (4) (a) As used in this Subsection (4), "predetermined drug or alcohol detoxification
85     procedure" means a specified procedure to be used in a jail, community treatment facility, or
86     outpatient community setting to provide drug or alcohol detoxification.
87          (b) If the conditions of Subsection (4)(c) are met, a prosecutor may offer a person
88     charged with or arrested for a criminal offense a predetermined drug or alcohol detoxification
89     procedure as an alternative to posting bail, or as modification of bail or condition of release.
90          (c) For a prosecutor to offer a predetermined drug or alcohol detoxification procedure:
91          (i) a licensed health care provider shall opine orally or in writing to the prosecutor that
92     a predetermined drug or alcohol detoxification procedure is appropriate and recommended for
93     the individual circumstances of the person who is charged or arrested;
94          (ii) the prosecutor shall have written documentation that the jail, community treatment
95     facility, or outpatient community setting has the resources and personnel necessary to safely
96     implement, monitor, treat, and complete a predetermined drug or alcohol detoxification
97     procedure;
98          (iii) the jail, community treatment facility, or outpatient treatment setting shall agree to
99     accept and treat the person using a predetermined drug or alcohol detoxification procedure; and
100          (iv) the person charged with or arrested for a criminal offense shall give written
101     informed consent for treatment using a predetermined drug or alcohol detoxification procedure.
102          (d) After a person charged with or arrested for a criminal offense starts or completes
103     the recommended predetermined drug or alcohol detoxification procedure, the court or
104     magistrate may release the person on the person's own recognizance or with other terms and
105     conditions, including additional recommended treatments and interventions.
106          (e) A prosecutor may not require or coerce a person charged or arrested for a criminal
107     offense to participate in a predetermined drug or alcohol detoxification procedure under this
108     Subsection (4).
109          [(4)] (5) (a) Except as otherwise provided, the initial order denying or fixing the
110     amount of bail shall be issued by the magistrate or court issuing the warrant of arrest.
111          (b) A magistrate may set bail upon determining that there was probable cause for a
112     warrantless arrest.
113          (c) A bail commissioner may set bail in a misdemeanor case in accordance with
114     Sections 10-3-920 and 17-32-1.
115          (d) A person arrested for a violation of a jail release agreement or jail release order
116     issued pursuant to Section 77-36-2.5:
117          (i) may not be released before the accused's first judicial appearance; and
118          (ii) may be denied bail by the court under Subsection 77-36-2.5(8) [or (12)].
119          [(5)] (6) The magistrate or court may rely upon information contained in:
120          (a) the indictment or information;
121          (b) any sworn probable cause statement;
122          (c) information provided by any pretrial services agency; or
123          (d) any other reliable record or source.
124          [(6)] (7) (a) A motion to modify the initial order may be made by a party at any time
125     upon notice to the opposing party sufficient to permit the opposing party to prepare for hearing
126     and to permit any victim to be notified and be present.
127          (b) Hearing on a motion to modify may be held in conjunction with a preliminary
128     hearing or any other pretrial hearing.
129          (c) The magistrate or court may rely on information as provided in Subsection [(5)] (6)
130     and may base its ruling on evidence provided at the hearing so long as each party is provided
131     an opportunity to present additional evidence or information relevant to bail.
132          [(7)] (8) Subsequent motions to modify bail orders may be made only upon a showing
133     that there has been a material change in circumstances.
134          [(8)] (9) An appeal may be taken from an order of any court denying bail to the
135     Supreme Court, which shall review the determination under Subsection (2).
136          [(9)] (10) For purposes of this section, any arrest or charge for a violation of Section
137     76-5-202, Aggravated murder, is a capital felony unless:
138          (a) the prosecutor files a notice of intent to not seek the death penalty; or
139          (b) the time for filing a notice to seek the death penalty has expired and the prosecutor
140     has not filed a notice to seek the death penalty.




Legislative Review Note
Office of Legislative Research and General Counsel