Chief Sponsor: Lyle W. Hillyard

House Sponsor: Steve Eliason


8     General Description:
9          This bill addresses DNA.
10     Highlighted Provisions:
11          This bill:
12          ▸     corrects fees collected by sheriff for obtaining a DNA specimen;
13          ▸     repeals language regarding when postconviction testing of DNA may be requested;
14     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          17-22-2.5, as last amended by Laws of Utah 2011, Chapters 67 and 340
23          53-10-407, as last amended by Laws of Utah 2011, Chapter 81
24          78B-9-301, as last amended by Laws of Utah 2017, Chapter 306

26     Be it enacted by the Legislature of the state of Utah:
27          Section 1. Section 17-22-2.5 is amended to read:
28          17-22-2.5. Fees of sheriff.
29          (1) (a) The legislative body of a county may set a fee for a service described in this

30     section and charged by the county sheriff:
31          (i) in an ordinance adopted under Section 17-53-223; and
32          (ii) in an amount reasonably related to, but not exceeding, the actual cost of providing
33     the service.
34          (b) If the legislative body of a county does not under Subsection (1)(a) set a fee
35     charged by the county sheriff, the sheriff shall charge a fee in accordance with Subsections (2)
36     through (7).
37          (2) Unless under Subsection (1) the legislative body of a county sets a fee amount for a
38     fee described in this Subsection (2), the sheriff shall charge the following fees:
39          (a) for serving a notice, rule, order, subpoena, garnishment, summons, or summons and
40     complaint, or garnishee execution, or other process by which an action or proceeding is
41     commenced, on each defendant, including copies when furnished by plaintiff, $20;
42          (b) for taking or approving a bond or undertaking in any case in which he is authorized
43     to take or approve a bond or undertaking, including justification, $5;
44          (c) for a copy of any writ, process or other paper when demanded or required by law,
45     for each folio, 50 cents;
46          (d) for serving an attachment on property, or levying an execution, or executing an
47     order of arrest or an order for the delivery of personal property, including copies when
48     furnished by plaintiff, $50;
49          (e) for taking and keeping possession of and preserving property under attachment or
50     execution or other process, the amount the court orders to a maximum of $15 per day;
51          (f) for advertising property for sale on execution, or any judgment, or order of sale,
52     exclusive of the cost of publication, $15;
53          (g) for drawing and executing a sheriff's deed or a certificate of redemption, exclusive
54     of acknowledgment, $15, to be paid by the grantee;
55          (h) for recording each deed, conveyance, or other instrument affecting real estate,
56     exclusive of the cost of recording, $10, to be paid by the grantee;
57          (i) for serving a writ of possession or restitution, and putting any person entitled to

58     possession into possession of premises, and removing occupant, $50;
59          (j) for holding each trial of right of property, to include all services in the matter,
60     except mileage, $35;
61          (k) for conducting, postponing, or canceling a sale of property, $15;
62          (l) for taking a prisoner in civil cases from prison before a court or magistrate, for each
63     mile necessarily traveled, in going only, to a maximum of 100 miles, $2.50;
64          (m) for taking a prisoner from the place of arrest to prison, in civil cases, or before a
65     court or magistrate, for each mile necessarily traveled, in going only, to a maximum of 100
66     miles, $2.50;
67          (n) for receiving and paying over money on execution or other process, as follows:
68          (i) if the amount collected does not exceed $1,000, 2% of this amount, with a
69     minimum of $1; and
70          (ii) if the amount collected exceeds $1,000, 2% on the first $1,000 and 1-1/2% on the
71     balance; and
72          (o) for executing in duplicate a certificate of sale, exclusive of filing it, $10.
73          (3) The fees allowed by Subsection (2)(f) for the levy of execution and for advertising
74     shall be collected from the judgment debtor as part of the execution in the same manner as the
75     sum directed to be made.
76          (4) When serving an attachment on property, an order of arrest, or an order for the
77     delivery of personal property, the sheriff may only collect traveling fees for the distance
78     actually traveled beyond the distance required to serve the summons if the attachment or those
79     orders:
80          (a) accompany the summons in the action; and
81          (b) may be executed at the time of the service of the summons.
82          (5) (a) (i) When traveling generally to serve notices, orders, process, or other papers,
83     the sheriff may receive, except as otherwise provided under Subsection (1)(a), $2.50 for each
84     mile necessarily traveled, in going only, computed from the courthouse for each person served,
85     to a maximum of 100 miles.

86          (ii) When transmitting notices, orders, process, or other papers by mail, the sheriff may
87     receive, except as otherwise provided under Subsection (1)(a), $2.50 for each mile necessarily
88     traveled, in going only, computed from the post office where received for each person served,
89     to a maximum of 100 miles.
90          (b) The sheriff may only charge one mileage fee if any two or more papers are required
91     to be served in the same action or proceeding at the same time and at the same address.
92          (c) If it is necessary to make more than one trip to serve any notice, order, process, or
93     other paper, the sheriff may not collect more than two additional mileage charges.
94          (6) (a) For transporting a patient to the Utah State Hospital or to or from a hospital or a
95     mental health facility, as defined in Section 62A-15-602, when the cost of transportation is
96     payable by private individuals, the sheriff may collect, except as otherwise provided under
97     Subsection (1)(a), $2.50 for each mile necessarily traveled, in going only, to a maximum of 100
98     miles.
99          (b) If the sheriff requires assistance to transport the person, the sheriff may also charge
100     the actual and necessary cost of that assistance.
101          (7) (a) Subject to Subsection (7)(b), for obtaining a saliva DNA specimen under
102     Section 53-10-404, the sheriff shall collect the fee of [$100] $150 in accordance with Section
103     53-10-404.
104          (b) The fee amount described in Subsection (7)(a) may not be changed by a county
105     legislative body under Subsection (1).
106          Section 2. Section 53-10-407 is amended to read:
107          53-10-407. DNA Specimen Restricted Account.
108          (1) There is created the DNA Specimen Restricted Account, which is referred to in this
109     section as "the account."
110          (2) The sources of money for the account are:
111          (a) DNA collection fees paid under Section 53-10-404;
112          (b) any appropriations made to the account by the Legislature; and
113          (c) all federal money provided to the state for the purpose of funding the collection or

114     analysis of DNA specimens collected under Section 53-10-403.
115          (3) The account shall earn interest, and this interest shall be deposited in the account.
116          (4) The Legislature may appropriate money from the account solely for the following
117     purposes:
118          (a) to the Department of Corrections for the costs of collecting DNA specimens as
119     required under Section 53-10-403;
120          (b) to the juvenile court for the costs of collecting DNA specimens as required under
121     Sections 53-10-403 and 78A-6-117;
122          (c) to the Division of Juvenile Justice Services for the costs of collecting DNA
123     specimens as required under Sections 53-10-403 and 62A-7-104; and
124          (d) to the Department of Public Safety for the costs of:
125          (i) storing and analyzing DNA specimens in accordance with the requirements of this
126     part;
127          (ii) DNA testing which cannot be performed by the Utah State Crime Lab, as provided
128     in Subsection 78B-9-301[(8)](7); and
129          (iii) reimbursing sheriffs for collecting the DNA specimens as provided under Sections
130     53-10-404 and 53-10-404.5.
131          (5) Appropriations from the account to the Department of Corrections, the juvenile
132     court, the Division of Juvenile Justice Services, and to the Department of Public Safety are
133     nonlapsing.
134          Section 3. Section 78B-9-301 is amended to read:
135          78B-9-301. Postconviction testing of DNA -- Petition -- Sufficient allegations --
136     Notification of victim.
137          (1) As used in this part:
138          (a) "DNA" means deoxyribonucleic acid.
139          (b) "Factually innocent" [has] means the same [definition] as that term is defined in
140     Section 78B-9-402.
141          (2) A person convicted of a felony offense may at any time file a petition for

142     postconviction DNA testing in the trial court that entered the judgment of conviction if the
143     person asserts factual innocence under oath and the petition alleges:
144          (a) evidence has been obtained regarding the person's case [which] that is still in
145     existence and is in a condition that allows DNA testing to be conducted;
146          (b) the chain of custody is sufficient to establish that the evidence has not been altered
147     in any material aspect;
148          (c) the person identifies the specific evidence to be tested and states a theory of
149     defense, not inconsistent with theories previously asserted at trial, that the requested DNA
150     testing would support;
151          (d) the evidence was not previously subjected to DNA testing, or if the evidence was
152     tested previously, the evidence was not subjected to the testing that is now requested, and the
153     new testing may resolve an issue not resolved by the prior testing;
154          (e) the proposed DNA testing is generally accepted as valid in the scientific field or is
155     otherwise admissible under Utah law;
156          (f) the evidence that is the subject of the request for testing:
157          (i) has the potential to produce new, noncumulative evidence; and
158          (ii) there is a reasonable probability that the defendant would not have been convicted
159     or would have received a lesser sentence if the evidence had been presented at the original trial;
160     and
161          (g) the person is aware of the consequences of filing the petition, including:
162          (i) those specified in Sections 78B-9-302 and 78B-9-304; and
163          (ii) that the person is waiving any statute of limitations in all jurisdictions as to any
164     felony offense the person has committed which is identified through DNA database
165     comparison.
166          (3) The petition under Subsection (2) shall comply with Rule 65C, Utah Rules of Civil
167     Procedure, including providing the underlying criminal case number.
168          [(4) The court may not order DNA testing in cases in which DNA testing was available
169     at the time of trial and the person did not request DNA testing or present DNA evidence for

170     tactical reasons.]
171          [(5)] (4) After a petition is filed under this section, prosecutors, law enforcement
172     officers, and crime laboratory personnel have a duty to cooperate in preserving evidence and in
173     determining the sufficiency of the chain of custody of the evidence which may be subject to
174     DNA testing.
175          [(6)] (5) (a) A person who files a petition under this section shall serve notice upon the
176     office of the prosecutor who obtained the conviction, and upon the Utah attorney general. The
177     attorney general shall, within 30 days after receipt of service of a copy of the petition, or within
178     any additional period of time the court allows, answer or otherwise respond to all proceedings
179     initiated under this part.
180          (b) After the attorney general responds under Subsection [(6)] (5)(a), the petitioner has
181     the right to reply to the response of the attorney general.
182          (c) After the attorney general and the petitioner have filed a response and reply in
183     compliance with Subsection [(6)] (5)(b), the court shall order DNA testing if it finds by a
184     preponderance of the evidence that all criteria of Subsection (2) have been met.
185          [(7)] (6) (a) If the court grants the petition for testing, the DNA test shall be performed
186     by the Utah State Crime Laboratory within the Criminal Investigations and Technical Services
187     Division created in Section 53-10-103, unless the person establishes that the state crime
188     laboratory has a conflict of interest or does not have the capability to perform the necessary
189     testing.
190          (b) If the court orders that the testing be conducted by any laboratory other than the
191     state crime laboratory, the court shall require that the testing be performed:
192          (i) under reasonable conditions designed to protect the state's interests in the integrity
193     of the evidence; and
194          (ii) according to accepted scientific standards and procedures.
195          [(8)] (7) (a) DNA testing under this section shall be paid for from funds appropriated to
196     the Department of Public Safety under Subsection 53-10-407(4)(d)(ii) from the DNA Specimen
197     Restricted Account created in Section 53-10-407 if:

198          (i) the court ordered the DNA testing under this section;
199          (ii) the Utah State Crime Laboratory within the Criminal Investigations and Technical
200     Services Division has a conflict of interest or does not have the capability to perform the
201     necessary testing; and
202          (iii) the petitioner who has filed for postconviction DNA testing under Section
203     78B-9-201 is serving a sentence of imprisonment and is indigent.
204          (b) Under this Subsection [(8)] (7), costs of DNA testing include those necessary to
205     transport the evidence, prepare samples for analysis, analyze the evidence, and prepare reports
206     of findings.
207          [(9)] (8) If the person is serving a sentence of imprisonment and is indigent, the state
208     shall pay for the costs of the testing under this part, but if the result is not favorable to the
209     person the court may order the person to reimburse the state for the costs of the testing,
210     pursuant to [the provisions of] Subsections 78B-9-302(4) and 78B-9-304(1)(b).
211          [(10)] (9) Any victim of the crime regarding which the person petitions for DNA
212     testing, who has elected to receive notice under Section 77-38-3 shall be notified by the state's
213     attorney of any hearing regarding the petition and testing, even though the hearing is a civil
214     proceeding.