7 LONG TITLE
8 General Description:
9 This bill modifies pretrial release provisions.
10 Highlighted Provisions:
11 This bill:
12 ▸ addresses right to bail involving qualifying offenses;
13 ▸ modifies terms related to jail release agreements and jail release court orders;
14 ▸ addresses conditions for release after arrest for domestic violence and other
16 ▸ amends provisions related to dismissal of certain offenses;
17 ▸ addresses contents of pretrial protective orders;
18 ▸ repeals language regarding privileged communications; and
19 ▸ makes technical and conforming amendments.
20 Money Appropriated in this Bill:
22 Other Special Clauses:
24 Utah Code Sections Affected:
26 77-20-1, as last amended by Laws of Utah 2017, Chapters 289, 311, and 332
27 77-20-3.5, as renumbered and amended by Laws of Utah 2017, Chapter 289
28 77-36-1, as last amended by Laws of Utah 2017, Chapters 289 and 332
29 77-36-2.7, as last amended by Laws of Utah 2017, Chapter 289
31 Be it enacted by the Legislature of the state of Utah:
32 Section 1. Section 77-20-1 is amended to read:
33 77-20-1. Right to bail -- Denial of bail -- Hearing.
34 (1) As used in this chapter:
35 (a) "Bail bond agency" means the same as that term is defined in Section 31A-35-102.
36 (b) "Surety" and "sureties" mean a surety insurer or a bail bond agency.
37 (c) "Surety insurer" means the same as that term is defined in Section 31A-35-102.
38 (2) A person charged with or arrested for a criminal offense shall be admitted to bail as
39 a matter of right, except if the person is charged with a:
40 (a) capital felony, when the court finds there is substantial evidence to support the
42 (b) felony committed while on probation or parole, or while free on bail awaiting trial
43 on a previous felony charge, when the court finds there is substantial evidence to support the
44 current felony charge;
45 (c) felony when there is substantial evidence to support the charge and the court finds
46 by clear and convincing evidence that the person would constitute a substantial danger to any
47 other person or to the community, or is likely to flee the jurisdiction of the court, if released on
48 bail; [
49 (d) felony when the court finds there is substantial evidence to support the charge and
50 it finds by clear and convincing evidence that the person violated a material condition of
51 release while previously on bail[
52 (e) domestic violence offense when the court finds that:
53 (i) there is substantial evidence to support the charge; and
54 (ii) by clear and convincing evidence, the person would constitute a substantial danger
55 to an alleged victim of domestic violence if released on bail.
56 (3) Any person who may be admitted to bail may be released by written undertaking or
57 an equal amount of cash bail, or on the person's own recognizance, on condition that the person
58 appear in court for future court proceedings in the case, and on any other conditions imposed in
59 the discretion of the magistrate or court that will reasonably:
60 (a) ensure the appearance of the accused;
61 (b) ensure the integrity of the court process;
62 (c) prevent direct or indirect contact with witnesses or victims by the accused, if
63 appropriate; and
64 (d) ensure the safety of the public.
65 (4) (a) Except as otherwise provided, the initial order denying or fixing the amount of
66 bail shall be issued by the magistrate or court issuing the warrant of arrest.
67 (b) A magistrate may set bail upon determining that there was probable cause for a
68 warrantless arrest.
69 (c) A bail commissioner may set bail in a misdemeanor case in accordance with
70 Sections 10-3-920 and 17-32-1.
71 (d) A person arrested for a violation of a jail release agreement or jail release court
72 order issued in accordance with Section 77-20-3.5:
73 (i) may not be released before the accused's first judicial appearance; and
74 (ii) may be denied bail by the court under Subsection [
75 (5) The magistrate or court may rely upon information contained in:
76 (a) the indictment or information;
77 (b) any sworn probable cause statement;
78 (c) information provided by any pretrial services agency; or
79 (d) any other reliable record or source.
80 (6) (a) A motion to modify the initial order may be made by a party at any time upon
81 notice to the opposing party sufficient to permit the opposing party to prepare for hearing and
82 to permit any victim to be notified and be present.
83 (b) Hearing on a motion to modify may be held in conjunction with a preliminary
84 hearing or any other pretrial hearing.
85 (c) The magistrate or court may rely on information as provided in Subsection (5) and
86 may base its ruling on evidence provided at the hearing so long as each party is provided an
87 opportunity to present additional evidence or information relevant to bail.
88 (7) Subsequent motions to modify bail orders may be made only upon a showing that
89 there has been a material change in circumstances.
90 (8) An appeal may be taken from an order of any court denying bail to the Supreme
91 Court, which shall review the determination under Subsection (2).
92 (9) For purposes of this section, any arrest or charge for a violation of Section
93 76-5-202, Aggravated murder, is a capital felony unless:
94 (a) the prosecutor files a notice of intent to not seek the death penalty; or
95 (b) the time for filing a notice to seek the death penalty has expired and the prosecutor
96 has not filed a notice to seek the death penalty.
97 Section 2. Section 77-20-3.5 is amended to read:
98 77-20-3.5. Conditions for release after arrest for domestic violence and other
99 offenses -- Jail release agreements -- Jail release court orders.
100 (1) As used in this section:
101 (a) "Domestic violence" means the same as that term is defined in Section 77-36-1.
102 (b) "Jail release agreement" means a written agreement [
106 (i) under which the arrested individual agrees to not :
107 (A) have personal contact with the alleged victim;
108 (B) threaten or harass the alleged victim; and
109 (C) knowingly enter on the premises of the alleged victim's residence or on premises
110 temporarily occupied by the alleged victim; and
111 (ii) that specifies other conditions of release from jail.
112 (c) "Jail release court order" means a written court order [
116 (i) orders an arrested individual not to:
117 (A) have personal contact with the alleged victim;
118 (B) threaten or harass the alleged victim; and
119 (C) knowingly enter on the premises of the alleged victim's residence or on premises
120 temporarily occupied by the alleged victim; and
121 (ii) specifies other conditions of release from jail.
122 (d) "Minor" means an unemancipated individual who is younger than 18 years of age.
123 (e) "Offense against a child or vulnerable adult" means the commission or attempted
124 commission of an offense described in Section 76-5-109, 76-5-109.1, 76-5-110, or 76-5-111.
125 (f) "Qualifying offense" means:
126 (i) domestic violence;
127 (ii) an offense against a child or vulnerable adult; or
128 (iii) the commission or attempted commission of an offense described in Title 76,
129 Chapter 5, Part 4, Sexual Offenses.
130 (2) (a) Upon arrest for a qualifying offense and before the [
131 released on bail, recognizance, or otherwise, the [
132 the alleged victim.
133 (b) [
135 (3) (a) After [
136 individual may not be released before:
137 (i) the matter is submitted to a magistrate in accordance with Section 77-7-23; or
138 (ii) the [
140 (b) The arresting officer shall ensure that the information presented to the magistrate
141 includes whether the alleged victim has made a waiver described in Subsection (6)(a).
142 (c) (i) If the magistrate determines there is probable cause to support the charge or
143 charges of one or more qualifying offenses , the magistrate shall determine[
145 with Section 77-20-1[
146 (ii) [
148 (A) whether any release conditions, including electronic monitoring, are necessary to
149 protect the alleged victim; [
151 subsequent appearance in court.
152 (d) [
153 qualifying offense [
157 issues a jail release court order or the arrested individual signs a jail release agreement.
166 (4) (a) If [
167 schedule an initial appearance or to appear at the time scheduled by the magistrate [
169 shall comply with the release conditions [
170 agreement or jail release court order until the [
171 (b) If the prosecutor has not filed charges against [
172 arrested for a qualifying offense and who appears in court at the time scheduled by the
173 magistrate under Subsection (3)[
174 (i) may, upon the motion of the prosecutor and after allowing the [
175 an opportunity to be heard on the motion, extend the release conditions described in
177 three court days; and
178 (ii) if the court grants the motion described in Subsection (4)(b)(i), shall order the
179 arrested [
181 (c) (i) If the prosecutor determines that there is insufficient evidence to file charges
182 before an initial appearance scheduled under Subsection (4)(a), the prosecutor shall transmit a
183 notice of declination to either the magistrate who signed a jail release court order or to the
184 statewide domestic violence network described in Section 78B-7-113 if a releasing agency
185 obtains a jail release agreement from a released arrestee.
186 (ii) A prosecutor's notice of declination transmitted under this Subsection (4)(c) is
187 considered a motion to dismiss a jail release court order and a notice of expiration of a jail
188 release agreement.
189 (5) Except as provided in Subsection (4) or otherwise ordered by a court, a jail release
190 agreement or jail release court order expires at midnight after the sooner of:
191 (a) the arrested [
192 Subsection [
193 (b) the declination is submitted under Subsection (4)(c); or
194 (c) 30 days from the day on which the arrested individual is arrested.
195 (6) (a) (i) After an arrest for a qualifying offense , an alleged victim who is not a minor
196 may waive in writing the release conditions [
198 (A) personal contact with the alleged victim; or
199 (B) knowingly entering on the premises of the alleged victim's residence or on
200 premises temporarily occupied by the alleged victim.
201 (ii) Upon waiver, [
202 apply to the arrested [
203 (b) A court or magistrate may modify [
205 only for good cause shown.
206 (7) (a) When an arrested [
207 (3), the releasing agency shall:
208 (i) notify the arresting law enforcement agency of the release, conditions of release, and
209 any available information concerning the location of the alleged victim;
210 (ii) make a reasonable effort to notify the alleged victim of the release; and
211 (iii) before releasing the arrested [
212 individual a copy of the jail release agreement or the jail release court order.
213 (b) (i) When [
214 pursuant to [
215 releasing agency shall transmit that information to the statewide domestic violence network
216 described in Section 78B-7-113.
217 (ii) When [
218 to [
220 transmit that order to the statewide domestic violence network described in Section 78B-7-113.
221 (c) This Subsection (7) does not create or increase liability of a law enforcement officer
222 or agency, and the good faith immunity provided by Section 77-36-8 is applicable.
223 (8) (a) If a law enforcement officer has probable cause to believe that [
224 individual has violated a jail release agreement or jail release court order, the officer shall,
225 without a warrant, arrest the [
226 (b) [
227 release agreement executed pursuant to Subsection (3) is guilty as follows:
228 (i) if the original arrest was for a felony, an offense under this section is a third degree
229 felony; or
230 (ii) if the original arrest was for a misdemeanor, an offense under this section is a class
231 A misdemeanor.
232 (c) [
233 under this section.
234 (9) [
235 and released in accordance with this section may subsequently be held without bail if there is
236 substantial evidence to support a new felony charge against the [
237 (10) At the time an arrest is made for a qualifying offense , the arresting officer shall
238 provide the alleged victim with written notice containing:
239 (a) the release conditions described in [
240 notice that the alleged perpetrator will not be released, before appearing before the court with
241 jurisdiction over the offense for which the alleged perpetrator was arrested, unless:
242 (i) the alleged perpetrator enters into a [
243 the release conditions; or
244 (ii) the magistrate [
246 (b) notification of the penalties for violation of any jail release agreement or jail release
247 court order;
251 alleged victim resides;
254 criminal protective orders with or without the assistance of an attorney.
255 (11) At the time an arrest is made for a qualifying offense , the arresting officer shall
256 provide the alleged perpetrator with written notice containing:
257 (a) notification that the alleged perpetrator may not contact the alleged victim before
258 being released;
259 (b) the release conditions described in [
260 notice that the alleged perpetrator will not be released, before appearing before the court with
261 jurisdiction over the offense for which the alleged perpetrator was arrested, unless:
262 (i) the alleged perpetrator enters into a [
263 the release conditions; or
264 (ii) the magistrate [
265 (c) notification of the penalties for violation of any jail release agreement or jail release
266 court order; and
267 (d) notification that the alleged perpetrator is to personally appear in court on the next
268 day the court is open for business after the day of the arrest.
269 (12) (a) A pretrial or sentencing protective order supercedes a jail release agreement or
270 jail release court order.
271 (b) If a court dismisses the charges for the qualifying offense that gave rise to a jail
272 release agreement or jail release court order, the court shall dismiss the jail release agreement
273 or jail release court order.
283 (13) This section does not apply if the [
284 offense is a minor, unless the qualifying offense is domestic violence.
285 Section 3. Section 77-36-1 is amended to read:
286 77-36-1. Definitions.
287 As used in this chapter:
288 (1) "Cohabitant" means the same as that term is defined in Section 78B-7-102.
289 (2) "Department" means the Department of Public Safety.
290 (3) "Divorced" means an individual who has obtained a divorce under Title 30, Chapter
291 3, Divorce.
292 (4) "Domestic violence" or "domestic violence offense" means any criminal offense
293 involving violence or physical harm or threat of violence or physical harm, or any attempt,
294 conspiracy, or solicitation to commit a criminal offense involving violence or physical harm,
295 when committed by one cohabitant against another. "Domestic violence" or "domestic
296 violence offense" also means commission or attempt to commit, any of the following offenses
297 by one cohabitant against another:
298 (a) aggravated assault, as described in Section 76-5-103;
299 (b) assault, as described in Section 76-5-102;
300 (c) criminal homicide, as described in Section 76-5-201;
301 (d) harassment, as described in Section 76-5-106;
302 (e) electronic communication harassment, as described in Section 76-9-201;
303 (f) kidnapping, child kidnapping, or aggravated kidnapping, as described in Sections
304 76-5-301, 76-5-301.1, and 76-5-302;
305 (g) mayhem, as described in Section 76-5-105;
306 (h) sexual offenses, as described in Title 76, Chapter 5, Part 4, Sexual Offenses, and
307 Section 76-5b-201, Sexual exploitation of a minor -- Offenses;
308 (i) stalking, as described in Section 76-5-106.5;
309 (j) unlawful detention or unlawful detention of a minor, as described in Section
311 (k) violation of a protective order or ex parte protective order, as described in Section
313 (l) any offense against property described in Title 76, Chapter 6, Part 1, Property
314 Destruction, Title 76, Chapter 6, Part 2, Burglary and Criminal Trespass, or Title 76, Chapter 6,
315 Part 3, Robbery;
316 (m) possession of a deadly weapon with intent to assault, as described in Section
318 (n) discharge of a firearm from a vehicle, near a highway, or in the direction of any
319 person, building, or vehicle, as described in Section 76-10-508;
320 (o) disorderly conduct, as defined in Section 76-9-102, if a conviction of disorderly
321 conduct is the result of a plea agreement in which the defendant was originally charged with a
322 domestic violence offense otherwise described in this Subsection (4). Conviction of disorderly
323 conduct as a domestic violence offense, in the manner described in this Subsection (4)(o), does
324 not constitute a misdemeanor crime of domestic violence under 18 U.S.C. Sec. 921, and is
325 exempt from the provisions of the federal Firearms Act, 18 U.S.C. Sec. 921 et seq.; or
326 (p) child abuse as described in Section 76-5-109.1.
327 (5) "Jail release agreement" means the same as that term is defined in Section
329 (6) "Jail release court order" means the same as that term is defined in Section
331 (7) "Marital status" means married and living together, divorced, separated, or not
333 (8) "Married and living together" means a man and a woman whose marriage was
334 solemnized under Section 30-1-4 or 30-1-6 and who are living in the same residence.
335 (9) "Not married" means any living arrangement other than married and living together,
336 divorced, or separated.
337 (10) "Protective order" includes an order issued under Subsection 77-36-5.1(6).
338 (11) "Pretrial protective order" means a written order:
339 (a) specifying and limiting the contact a person who has been charged with a domestic
340 violence offense may have with an alleged victim or other specified individuals; and
341 (b) specifying other conditions of release pursuant to [
344 (12) "Sentencing protective order" means a written order of the court as part of
345 sentencing in a domestic violence case that limits the contact a person who has been convicted
346 of a domestic violence offense may have with a victim or other specified individuals pursuant
347 to Sections 77-36-5 and 77-36-5.1.
348 (13) "Separated" means a man and a woman who have had their marriage solemnized
349 under Section 30-1-4 or 30-1-6 and who are not living in the same residence.
350 (14) "Victim" means a cohabitant who has been subjected to domestic violence.
351 Section 4. Section 77-36-2.7 is amended to read:
352 77-36-2.7. Dismissal -- Diversion prohibited -- Plea in abeyance -- Pretrial
353 protective order pending trial.
354 (1) Because of the serious nature of domestic violence, the court, in domestic violence
356 (a) may not dismiss any charge or delay disposition because of concurrent divorce or
357 other civil proceedings;
358 (b) may not require proof that either party is seeking a dissolution of marriage before
359 instigation of criminal proceedings;
360 (c) shall waive any requirement that the victim's location be disclosed other than to the
361 defendant's attorney and order the defendant's attorney not to disclose the victim's location to
362 the client;
363 (d) shall identify, on the docket sheets, the criminal actions arising from acts of
364 domestic violence; and
367 Pleas in Abeyance, making treatment or any other requirement for the defendant a condition of
368 that status.
369 (2) When the court holds a plea in abeyance in accordance with Subsection (1)(f), the
370 case against a perpetrator of domestic violence may be dismissed only if the perpetrator
371 successfully completes all conditions imposed by the court. If the defendant fails to complete
372 any condition imposed by the court under Subsection (1)(f), the court may accept the
373 defendant's plea.
374 (3) (a) Because of the likelihood of repeated violence directed at those who have been
375 victims of domestic violence in the past and the vulnerability of victims of other qualifying
376 offenses as defined in Section 77-20-3.5, when any defendant is charged with a crime involving
378 defendant is present, issue a pretrial protective order, pending trial:
379 (i) enjoining the defendant from threatening to commit or committing acts of domestic
380 violence or abuse against the victim and any designated family or household member;
381 (ii) prohibiting the defendant from harassing, telephoning, contacting, or otherwise
382 communicating with the victim, directly or indirectly;
383 (iii) removing and excluding the defendant from the victim's residence and the
384 premises of the residence;
385 (iv) ordering the defendant to stay away from the residence, school, place of
386 employment of the victim, and the premises of any of these, or any specified place frequented
387 by the victim and any designated family member; and
388 (v) ordering any other relief that the court considers necessary to protect and provide
389 for the safety of the victim and any designated family or household member.
390 (b) Violation of an order issued pursuant to this section is punishable as follows:
391 (i) if the original arrest or subsequent charge filed is a felony, an offense under this
392 section is a third degree felony; and
393 (ii) if the original arrest or subsequent charge filed is a misdemeanor, an offense under
394 this section is a class A misdemeanor.
395 (c) (i) The court shall provide the victim with a certified copy of any pretrial protective
396 order that has been issued if the victim can be located with reasonable effort.
397 (ii) If the court is unable to locate the victim, the court shall provide the victim's
398 certified copy to the prosecutor.
400 domestic violence network.
401 (d) Issuance of a pretrial or sentencing protective order supercedes a jail release
402 agreement or jail release court order.
403 (e) If the alleged victim and the defendant share custody of one or more minor children,
404 the court may include in a pretrial protective order provisions for indirect or limited contact to
405 temporarily facilitate parent visitation with a minor child.
406 (f) In a pretrial protective order the court shall determine whether to allow provisions
407 for transfer of personal property to decrease the need for contact between the parties.
408 (4) (a) When a court dismisses criminal charges or a prosecutor moves to dismiss
409 charges against a defendant accused of a domestic violence offense, the specific reasons for
410 dismissal shall be recorded in the court file and made a part of any related order or agreement
411 on the statewide domestic violence network described in Section 78B-7-113.
412 (b) The court shall transmit the dismissal to the statewide domestic violence network.
413 (c) Any pretrial protective orders, including jail release court orders and jail release
414 agreements, related to the dismissed domestic violence criminal charge shall also be dismissed.