Representative Angela Romero proposes the following substitute bill:


1     
PRETRIAL RELEASE AMENDMENTS

2     
2018 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Angela Romero

5     
Senate Sponsor: Todd Weiler

6     

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
15     offenses;
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:
21          None
22     Other Special Clauses:
23          None
24     Utah Code Sections Affected:
25     AMENDS:
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
30     

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
41     charge;
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; [or]
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[.]; or
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 [77-20-3.5(9) or (11)] (2).
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 [described in Subsection
103     77-20-3.5(3)] that is entered into by an arrested individual :
104          [(i) limits the contact an individual arrested for a qualifying offense may have with an
105     alleged victim; and]
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 [issued in accordance with
113     Subsection 77-20-3.5(3)] that:
114          [(i) limits the contact an individual arrested for a qualifying offense may have with an
115     alleged victim; and]
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 [person] individual is
131     released on bail, recognizance, or otherwise, the [person] individual may not personally contact
132     the alleged victim.
133          (b) [A person] An individual who violates Subsection (2)(a) is guilty of a class B
134     misdemeanor.
135          (3) (a) After [a person] an individual is arrested for a qualifying offense, the [person ]
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 [person] individual signs a jail release agreement [in accordance with
139     Subsection (3)(d)(i)].
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[: (i)] whether
144     [grounds exist to hold] the arrested [person] individual may be held without bail, in accordance
145     with Section 77-20-1[;].
146          (ii) [if no grounds exist to hold] If the magistrate determines that the arrested [person
147     without] individual has the right to be admitted to bail, the magistrate shall determine:
148          (A) whether any release conditions, including electronic monitoring, are necessary to
149     protect the alleged victim; [or] and
150          [(iii)] (B) any bail that is required to guarantee the arrested [person's] individual's
151     subsequent appearance in court.
152          (d) [(i)] The magistrate may not release [a person] an individual arrested for a
153     qualifying offense [before the person's initial court appearance before the court with
154     jurisdiction over the offense for which the person was arrested, unless the arrested person
155     agrees in writing or the magistrate orders, as a release condition, that, until the arrested person
156     appears at the initial court appearance, the arrested person will not:] unless the magistrate
157     issues a jail release court order or the arrested individual signs a jail release agreement.
158          [(A) have personal contact with the alleged victim;]
159          [(B) threaten or harass the alleged victim; or]
160          [(C) knowingly enter onto the premises of the alleged victim's residence or any
161     premises temporarily occupied by the alleged victim.]
162          [(ii) The magistrate shall schedule the appearance described in Subsection (3)(d)(i) to
163     take place no more than 96 hours after the time of the arrest.]
164          [(iii) The arrested person may make the appearance described in Subsection (3)(d)(i) by
165     video if the arrested person is not released.]
166          (4) (a) If [a person] an individual charged with a qualifying offense fails to either
167     schedule an initial appearance or to appear at the time scheduled by the magistrate [under
168     Subsection (3)(d), the person] not more than 96 hours after the time of arrest, the individual
169     shall comply with the release conditions [described in Subsection (3)(d)(i)] of a jail release
170     agreement or jail release court order until the [person] individual makes an initial appearance.
171          (b) If the prosecutor has not filed charges against [a person] an individual who was
172     arrested for a qualifying offense and who appears in court at the time scheduled by the
173     magistrate under Subsection (3)[(d)], or by the court under Subsection (4)(b)(ii), the court:
174          (i) may, upon the motion of the prosecutor and after allowing the [person] individual
175     an opportunity to be heard on the motion, extend the release conditions described in
176     [Subsection (3)(d)(i)] the jail release court order or the jail release agreement by no more than
177     three court days; and
178          (ii) if the court grants the motion described in Subsection (4)(b)(i), shall order the
179     arrested [person] individual to appear at a time scheduled before the end of the granted
180     extension.
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 [person's] individual's initial scheduled court appearance described in
192     Subsection [(3)(d)(i).] (4)(a);
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 [described in Subsection (3)(d)(i)(A) or (C).]
197     prohibiting:
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, [those] the release conditions described in Subsection (6)(a)(i) do not
202     apply to the arrested [person] individual.
203          (b) A court or magistrate may modify [the release conditions described in Subsection
204     (3)(d)(i),] a jail release agreement or a jail release court order in writing or on the record, and
205     only for good cause shown.
206          (7) (a) When an arrested [person] individual is released in accordance with Subsection
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 [person] individual, give the arrested [person]
212     individual a copy of the jail release agreement or the jail release court order.
213          (b) (i) When [a person] an individual arrested for domestic violence is released
214     pursuant to [Subsection (3)] this section based on a [written] jail release agreement, the
215     releasing agency shall transmit that information to the statewide domestic violence network
216     described in Section 78B-7-113.
217          (ii) When [a person] an individual arrested for domestic violence is released pursuant
218     to [Subsections (3) through (5)] this section based upon a jail release court order or if a
219     [written] jail release agreement is modified pursuant to Subsection (6)(b), the court shall
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 [a person] an
224     individual has violated a jail release agreement or jail release court order, the officer shall,
225     without a warrant, arrest the [person] individual.
226          (b) [Any person] An individual who knowingly violates a jail release court order or jail
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) [City attorneys] A city attorney may prosecute class A misdemeanor violations
233     under this section.
234          (9) [A person] An individual who is arrested for a qualifying offense that is a felony
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 [person] individual.
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 [Subsections (3) through (5)] this section, and
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 [written] jail release agreement to comply with
243     the release conditions; or
244          (ii) the magistrate [orders] issues a jail release order that specifies the release
245     conditions;
246          (b) notification of the penalties for violation of any jail release agreement or jail release
247     court order;
248          [(c) notification that the alleged perpetrator is to personally appear in court on the next
249     day the court is open for business after the day of the arrest;]
250          [(d)] (c) the address of the appropriate court in the district or county in which the
251     alleged victim resides;
252          [(e)] (d) the availability and effect of any waiver of the release conditions; and
253          [(f)] (e) information regarding the availability of and procedures for obtaining civil and
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 [Subsections (3) through (5)] this section and
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 [written] jail release agreement to comply with
263     the release conditions; or
264          (ii) the magistrate [orders the release conditions] issues a jail release court order;
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.
274          [(13) In addition to the provisions of Subsections (3) through (12), because of the
275     unique and highly emotional nature of domestic violence crimes, the high recidivism rate of
276     violent offenders, and the demonstrated increased risk of continued acts of violence subsequent
277     to the release of an offender who has been arrested for domestic violence, it is the finding of
278     the Legislature that domestic violence crimes, as defined in Section 77-36-1, are crimes for
279     which bail may be denied if there is substantial evidence to support the charge, and if the court
280     finds by clear and convincing evidence that the alleged perpetrator would constitute a
281     substantial danger to an alleged victim of domestic violence if released on bail.]
282          [(14) The provisions of this section do]
283          (13) This section does not apply if the [person] individual arrested for the qualifying
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
310     76-5-304;
311          (k) violation of a protective order or ex parte protective order, as described in Section
312     76-5-108;
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
317     76-10-507;
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
328     77-20-3.5.
329          (6) "Jail release court order" means the same as that term is defined in Section
330     77-20-3.5.
331          (7) "Marital status" means married and living together, divorced, separated, or not
332     married.
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 [Subsection] Section
342     77-20-3.5[(3)], Subsection 77-36-2.6(3), or Section 77-36-2.7, pending trial in the criminal
343     case.
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
355     actions:
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
365          [(e) may dismiss a charge on stipulation of the prosecutor and the victim; and]
366          [(f)] (e) may hold a plea in abeyance, in accordance with the provisions of Chapter 2a,
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
377     [domestic violence] a qualifying offense, the court may, during any court hearing where the
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.
399          [(ii)] (iii) The court shall [also] transmit the pretrial protective order to the statewide
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.
415          [(5) When the privilege of confidential communication between spouses, or the
416     testimonial privilege of spouses is invoked in any criminal proceeding in which a spouse is the
417     victim of an alleged domestic violence offense, the victim shall be considered to be an
418     unavailable witness under the Utah Rules of Evidence.]
419          [(6)] (5) The court may not approve diversion for a perpetrator of domestic violence.