1     
PRETRIAL RELEASE AMENDMENTS

2     
2019 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 the 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 changes.
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 last amended by Laws of Utah 2018, Chapter 281
28          77-36-1, as last amended by Laws of Utah 2018, Chapter 255
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] An individual charged with or arrested for a criminal offense shall be
39     admitted to bail as a matter of right, except if the [person] individual 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] individual would constitute a substantial
47     danger to any other [person] individual or to the community, or is likely to flee the jurisdiction
48     of the court, if released on 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] individual violated a material
51     condition of release while previously on bail[.]; or
52          (e) domestic violence offense if the court finds:
53          (i) that there is substantial evidence to support the charge; and
54          (ii) by clear and convincing evidence, that the individual would constitute a substantial
55     danger to an alleged victim of domestic violence if released on bail.
56          (3) Any [person] individual who may be admitted to bail may be released by written
57     undertaking or an equal amount of cash bail, or on the [person's] individual's own
58     recognizance, on condition that the [person] individual appear in court for future court
59     proceedings in the case, and on any other conditions imposed in the discretion of the magistrate
60     or court that will reasonably:
61          (a) ensure the appearance of the accused;
62          (b) ensure the integrity of the court process;
63          (c) prevent direct or indirect contact with witnesses or victims by the accused, if
64     appropriate; and
65          (d) ensure the safety of the public.
66          (4) (a) Except as otherwise provided, the initial order denying or fixing the amount of
67     bail shall be issued by the magistrate or court issuing the warrant of arrest.
68          (b) A magistrate may set bail upon determining that there was probable cause for a
69     warrantless arrest.
70          (c) A bail commissioner may set bail in a misdemeanor case in accordance with
71     Sections 10-3-920 and 17-32-1.
72          (d) [A person] An individual arrested for a violation of a jail release agreement or jail
73     release court order issued in accordance with Section 77-20-3.5:
74          (i) may not be released before the accused's first judicial appearance; and
75          (ii) may be denied bail by the court under Subsection [77-20-3.5(9) or (11)] (2).
76          (5) The magistrate or court may rely upon information contained in:
77          (a) the indictment or information;
78          (b) any sworn probable cause statement;
79          (c) information provided by any pretrial services agency; or
80          (d) any other reliable record or source.
81          (6) (a) A motion to modify the initial order may be made by a party at any time upon
82     notice to the opposing party sufficient to permit the opposing party to prepare for hearing and
83     to permit any victim to be notified and be present.
84          (b) Hearing on a motion to modify may be held in conjunction with a preliminary
85     hearing or any other pretrial hearing.
86          (c) The magistrate or court may rely on information as provided in Subsection (5) and
87     may base its ruling on evidence provided at the hearing so long as each party is provided an
88     opportunity to present additional evidence or information relevant to bail.
89          (7) Subsequent motions to modify bail orders may be made only upon a showing that
90     there has been a material change in circumstances.
91          (8) An appeal may be taken from an order of any court denying bail to the Supreme
92     Court, which shall review the determination under Subsection (2).
93          (9) For purposes of this section, any arrest or charge for a violation of Section
94     76-5-202, Aggravated murder, is a capital felony unless:
95          (a) the prosecutor files a notice of intent to not seek the death penalty; or
96          (b) the time for filing a notice to seek the death penalty has expired and the prosecutor
97     has not filed a notice to seek the death penalty.
98          Section 2. Section 77-20-3.5 is amended to read:
99          77-20-3.5. Conditions for release after arrest for domestic violence and other
100     offenses -- Jail release agreements -- Jail release court orders.
101          (1) As used in this section:
102          (a) "Domestic violence" means the same as that term is defined in Section 77-36-1.
103          (b) "Jail release agreement" means a written agreement [described in Subsection (3)]
104     that is entered into by an arrested individual:
105          [(i) limits the contact an individual arrested for a qualifying offense may have with an
106     alleged victim; and]
107          (i) under which the arrested individual agrees to not engage in any of the following:
108          (A) have personal contact with the alleged victim;
109          (B) threaten or harass the alleged victim; or
110          (C) knowingly enter on the premises of the alleged victim's residence or on premises
111     temporarily occupied by the alleged victim; and
112          (ii) that specifies other conditions of release from jail.
113          (c) "Jail release court order" means a written court order [issued in accordance with
114     Subsection (3)] that:
115          [(i) limits the contact an individual arrested for a qualifying offense may have with an
116     alleged victim; and]
117          (i) orders an arrested individual not to engage in any of the following:
118          (A) have personal contact with the alleged victim;
119          (B) threaten or harass the alleged victim; or
120          (C) knowingly enter on the premises of the alleged victim's residence or on premises
121     temporarily occupied by the alleged victim; and
122          (ii) specifies other conditions of release from jail.
123          (d) "Minor" means an unemancipated individual who is younger than 18 years of age.
124          (e) "Offense against a child or vulnerable adult" means the commission or attempted
125     commission of an offense described in Section 76-5-109, 76-5-109.1, 76-5-110, or 76-5-111.
126          (f) "Qualifying offense" means:
127          (i) domestic violence;
128          (ii) an offense against a child or vulnerable adult; or
129          (iii) the commission or attempted commission of an offense described in Title 76,
130     Chapter 5, Part 4, Sexual Offenses.
131          (2) (a) Upon arrest for a qualifying offense and before the [person] individual is
132     released on bail, recognizance, or otherwise, the [person] individual may not personally contact
133     the alleged victim.
134          (b) [A person] An individual who violates Subsection (2)(a) is guilty of a class B
135     misdemeanor.
136          (3) (a) After [a person] an individual is arrested for a qualifying offense, the [person]
137     individual may not be released before:
138          (i) the matter is submitted to a magistrate in accordance with Section 77-7-23; or
139          (ii) the [person] individual signs a jail release agreement [in accordance with
140     Subsection (3)(d)(i)].
141          (b) The arresting officer shall ensure that the information presented to the magistrate
142     includes whether the alleged victim has made a waiver described in Subsection (6)(a).
143          (c) (i) If the magistrate determines there is probable cause to support the charge or
144     charges of one or more qualifying offenses , the magistrate shall determine[:(i) whether
145     grounds exist to hold the arrested person] whether the arrested individual may be held without
146     bail, in accordance with Section 77-20-1[;].
147          [(ii) if no grounds exist to hold the arrested person without bail,]
148          (ii) If the magistrate determines that the arrested individual has the right to be admitted
149     to bail, the magistrate shall determine:
150          (A) whether any release conditions, including electronic monitoring, are necessary to
151     protect the alleged victim; [or] and
152          [(iii)] (B) any bail that is required to guarantee the arrested person's subsequent
153     appearance in court.
154          [(d) (i) The magistrate may not release a person arrested for a qualifying offense before
155     the person's initial court appearance before the court with jurisdiction over the offense for
156     which the person was arrested, unless the arrested person agrees in writing or the magistrate
157     orders, as a release condition, that, until the arrested person appears at the initial court
158     appearance, the arrested person will not:]
159          [(A) have personal contact with the alleged victim;]
160          [(B) threaten or harass the alleged victim; or]
161          [(C) knowingly enter onto the premises of the alleged victim's residence or any
162     premises temporarily occupied by the alleged victim.]
163          [(ii) The magistrate shall schedule the appearance described in Subsection (3)(d)(i) to
164     take place no more than 96 hours after the time of the arrest.]
165          [(iii) The arrested person may make the appearance described in Subsection (3)(d)(i) by
166     video if the arrested person is not released.]
167          (d) The magistrate may not release an individual arrested for a qualifying offense
168     unless the magistrate issues a jail release court order or the arrested individual signs a jail
169     release agreement.
170          (4) (a) If [a person] an individual charged with a qualifying offense fails to either
171     schedule an initial appearance or to appear at the time scheduled by the magistrate [under
172     Subsection (3)(d), the person] within 96 hours after the time of arrest, the individual shall
173     comply with the release conditions [described in Subsection (3)(d)(i) until the person] of a jail
174     release agreement or jail release court order until the individual makes an initial appearance.
175          (b) If the prosecutor has not filed charges against [a person] an individual who was
176     arrested for a qualifying offense and who appears in court at the time scheduled by the
177     magistrate under Subsection (3)[(d)], or by the court under Subsection (4)(b)(ii), the court:
178          (i) may, upon the motion of the prosecutor and after allowing the [person] individual
179     an opportunity to be heard on the motion, extend the release conditions described in
180     [Subsection (3)(d)(i)] the jail release court order or the jail release agreement by no more than
181     three court days; and
182          (ii) if the court grants the motion described in Subsection (4)(b)(i), shall order the
183     arrested [person] individual to appear at a time scheduled before the end of the granted
184     extension.
185          (c) (i) If the prosecutor determines that there is insufficient evidence to file charges
186     before an initial appearance scheduled under Subsection (4)(a), the prosecutor shall transmit a
187     notice of declination to either the magistrate who signed the jail release court order or, if the
188     releasing agency obtains a jail release agreement from the released arrestee, to the statewide
189     domestic violence network described in Section 78B-7-113.
190          (ii) A prosecutor's notice of declination transmitted under this Subsection (4)(c) is
191     considered a motion to dismiss a jail release court order and a notice of expiration of a jail
192     release agreement.
193          (5) Except as provided in Subsection (4) or otherwise ordered by a court, a jail release
194     agreement or jail release court order expires at midnight after the earlier of:
195          (a) the arrested [person's] individual's initial scheduled court appearance described in
196     Subsection [(3)(d)(i).] (4)(a);
197          (b) the day on which the prosecutor transmits the notice of the declination under
198     Subsection (4)(c); or
199          (c) 30 days after the day on which the arrested individual is arrested.
200          (6) (a) (i) After an arrest for a qualifying offense , an alleged victim who is not a minor
201     may waive in writing the release conditions [described in Subsection (3)(d)(i)(A) or (C).]
202     prohibiting:
203          (A) personal contact with the alleged victim; or
204          (B) knowingly entering on the premises of the alleged victim's residence or on
205     premises temporarily occupied by the alleged victim.
206          (ii) Upon waiver, [those] the release conditions described in Subsection (6)(a)(i) do not
207     apply to the arrested [person] individual.
208          (b) A court or magistrate may modify [the release conditions described in Subsection
209     (3)(d)(i),] a jail release agreement or a jail release court order in writing or on the record, and
210     only for good cause shown.
211          (7) (a) When an arrested [person] individual is released in accordance with Subsection
212     (3), the releasing agency shall:
213          (i) notify the arresting law enforcement agency of the release, conditions of release, and
214     any available information concerning the location of the alleged victim;
215          (ii) make a reasonable effort to notify the alleged victim of the release; and
216          (iii) before releasing the arrested [person] individual, give the arrested [person]
217     individual a copy of the jail release agreement or the jail release court order.
218          (b) (i) When [a person] an individual arrested for domestic violence is released
219     pursuant to [Subsection (3)] this section based on a [written] jail release agreement, the
220     releasing agency shall transmit that information to the statewide domestic violence network
221     described in Section 78B-7-113.
222          (ii) When [a person] an individual arrested for domestic violence is released pursuant
223     to [Subsections (3) through (5)] this section based upon a jail release court order or if a
224     [written] jail release agreement is modified pursuant to Subsection (6)(b), the court shall
225     transmit that order to the statewide domestic violence network described in Section 78B-7-113.
226          (c) This Subsection (7) does not create or increase liability of a law enforcement officer
227     or agency, and the good faith immunity provided by Section 77-36-8 is applicable.
228          (8) (a) If a law enforcement officer has probable cause to believe that [a person] an
229     individual has violated a jail release agreement or jail release court order, the officer shall,
230     without a warrant, arrest the [person] individual.
231          (b) [Any person] An individual who knowingly violates a jail release court order or jail
232     release agreement executed pursuant to Subsection (3) is guilty as follows:
233          (i) if the original arrest was for a felony, an offense under this section is a third degree
234     felony; or
235          (ii) if the original arrest was for a misdemeanor, an offense under this section is a class
236     A misdemeanor.
237          (c) [City attorneys] A city attorney may prosecute class A misdemeanor violations
238     under this section.
239          (9) [A person] An individual who is arrested for a qualifying offense that is a felony
240     and released in accordance with this section may subsequently be held without bail if there is
241     substantial evidence to support a new felony charge against the [person] individual.
242          (10) At the time an arrest is made for a qualifying offense , the arresting officer shall
243     provide the alleged victim with written notice containing:
244          (a) the release conditions described in [Subsections (3) through (5)] this section, and
245     notice that the alleged perpetrator will not be released, before appearing before the court with
246     jurisdiction over the offense for which the alleged perpetrator was arrested, unless:
247          (i) the alleged perpetrator enters into a [written] jail release agreement to comply with
248     the release conditions; or
249          (ii) the magistrate [orders] issues a jail release order that specifies the release
250     conditions;
251          (b) notification of the penalties for violation of any jail release agreement or jail release
252     court order;
253          [(c) notification that the alleged perpetrator is to personally appear in court on the next
254     day the court is open for business after the day of the arrest;]
255          [(d)] (c) the address of the appropriate court in the district or county in which the
256     alleged victim resides;
257          [(e)] (d) the availability and effect of any waiver of the release conditions; and
258          [(f)] (e) information regarding the availability of and procedures for obtaining civil and
259     criminal protective orders with or without the assistance of an attorney.
260          (11) At the time an arrest is made for a qualifying offense , the arresting officer shall
261     provide the alleged perpetrator with written notice containing:
262          (a) notification that the alleged perpetrator may not contact the alleged victim before
263     being released;
264          (b) the release conditions described in [Subsections (3) through (5)] this section and
265     notice that the alleged perpetrator will not be released, before appearing before the court with
266     jurisdiction over the offense for which the alleged perpetrator was arrested, unless:
267          (i) the alleged perpetrator enters into a [written] jail release agreement to comply with
268     the release conditions; or
269          (ii) the magistrate [orders the release conditions] issues a jail release court order;
270          (c) notification of the penalties for violation of any jail release agreement or jail release
271     court order; and
272          (d) notification that the alleged perpetrator is to personally appear in court on the next
273     day the court is open for business after the day of the arrest.
274          (12) (a) A pretrial or sentencing protective order supercedes a jail release agreement or
275     jail release court order.
276          (b) If a court dismisses the charges for the qualifying offense that gave rise to a jail
277     release agreement or jail release court order, the court shall dismiss the jail release agreement
278     or jail release court order.
279          [(13) In addition to the provisions of Subsections (3) through (12), because of the
280     unique and highly emotional nature of domestic violence crimes, the high recidivism rate of
281     violent offenders, and the demonstrated increased risk of continued acts of violence subsequent
282     to the release of an offender who has been arrested for domestic violence, it is the finding of
283     the Legislature that domestic violence crimes, as defined in Section 77-36-1, are crimes for
284     which bail may be denied if there is substantial evidence to support the charge, and if the court
285     finds by clear and convincing evidence that the alleged perpetrator would constitute a
286     substantial danger to an alleged victim of domestic violence if released on bail.]
287          [(14) The provisions of this section do]
288          (13) This section does not apply if the [person] individual arrested for the qualifying
289     offense is a minor, unless the qualifying offense is domestic violence.
290          Section 3. Section 77-36-1 is amended to read:
291          77-36-1. Definitions.
292          As used in this chapter:
293          (1) "Cohabitant" means the same as that term is defined in Section 78B-7-102.
294          (2) "Department" means the Department of Public Safety.
295          (3) "Divorced" means an individual who has obtained a divorce under Title 30, Chapter
296     3, Divorce.
297          (4) "Domestic violence" or "domestic violence offense" means any criminal offense
298     involving violence or physical harm or threat of violence or physical harm, or any attempt,
299     conspiracy, or solicitation to commit a criminal offense involving violence or physical harm,
300     when committed by one cohabitant against another. "Domestic violence" or "domestic
301     violence offense" [also means] includes commission or attempt to commit, any of the
302     following offenses by one cohabitant against another:
303          (a) aggravated assault, as described in Section 76-5-103;
304          (b) assault, as described in Section 76-5-102;
305          (c) criminal homicide, as described in Section 76-5-201;
306          (d) harassment, as described in Section 76-5-106;
307          (e) electronic communication harassment, as described in Section 76-9-201;
308          (f) kidnapping, child kidnapping, or aggravated kidnapping, as described in Sections
309     76-5-301, 76-5-301.1, and 76-5-302;
310          (g) mayhem, as described in Section 76-5-105;
311          (h) sexual offenses, as described in Title 76, Chapter 5, Part 4, Sexual Offenses, and
312     Section 76-5b-201, Sexual exploitation of a minor -- Offenses;
313          (i) stalking, as described in Section 76-5-106.5;
314          (j) unlawful detention or unlawful detention of a minor, as described in Section
315     76-5-304;
316          (k) violation of a protective order or ex parte protective order, as described in Section
317     76-5-108;
318          (l) any offense against property described in Title 76, Chapter 6, Part 1, Property
319     Destruction, Title 76, Chapter 6, Part 2, Burglary and Criminal Trespass, or Title 76, Chapter 6,
320     Part 3, Robbery;
321          (m) possession of a deadly weapon with criminal intent, as described in Section
322     76-10-507;
323          (n) discharge of a firearm from a vehicle, near a highway, or in the direction of any
324     person, building, or vehicle, as described in Section 76-10-508;
325          (o) disorderly conduct, as defined in Section 76-9-102, if a conviction of disorderly
326     conduct is the result of a plea agreement in which the defendant was originally charged with a
327     domestic violence offense otherwise described in this Subsection (4), except that a conviction
328     of disorderly conduct as a domestic violence offense, in the manner described in this
329     Subsection (4)(o), does not constitute a misdemeanor crime of domestic violence under 18
330     U.S.C. Sec. 921, and is exempt from the federal Firearms Act, 18 U.S.C. Sec. 921 et seq.;
331          (p) child abuse, as described in Section 76-5-109.1;
332          (q) threatening use of a dangerous weapon, as described in Section 76-10-506;
333          (r) threatening violence, as described in Section 76-5-107;
334          (s) tampering with a witness, as described in Section 76-8-508;
335          (t) retaliation against a witness or victim, as described in Section 76-8-508.3;
336          (u) unlawful distribution of an intimate image, as described in Section 76-5b-203;
337          (v) sexual battery, as described in Section 76-9-702.1;
338          (w) voyeurism, as described in Section 76-9-702.7;
339          (x) damage to or interruption of a communication device, as described in Section
340     76-6-108; or
341          (y) an offense described in Section 77-20-3.5.
342          (5) "Jail release agreement" means the same as that term is defined in Section
343     77-20-3.5.
344          (6) "Jail release court order" means the same as that term is defined in Section
345     77-20-3.5.
346          (7) "Marital status" means married and living together, divorced, separated, or not
347     married.
348          (8) "Married and living together" means a couple whose marriage was solemnized
349     under Section 30-1-4 or 30-1-6 and who are living in the same residence.
350          (9) "Not married" means any living arrangement other than married and living together,
351     divorced, or separated.
352          (10) "Protective order" includes an order issued under Subsection 77-36-5.1(6).
353          (11) "Pretrial protective order" means a written order:
354          (a) specifying and limiting the contact a person who has been charged with a domestic
355     violence offense may have with an alleged victim or other specified individuals; and
356          (b) specifying other conditions of release pursuant to [Subsection 77-20-3.5(3)] Section
357     77-20-3.5, Subsection 77-36-2.6(3), or Section 77-36-2.7, pending trial in the criminal case.
358          (12) "Sentencing protective order" means a written order of the court as part of
359     sentencing in a domestic violence case that limits the contact a person who has been convicted
360     of a domestic violence offense may have with a victim or other specified individuals pursuant
361     to Sections 77-36-5 and 77-36-5.1.
362          (13) "Separated" means a couple who have had their marriage solemnized under
363     Section 30-1-4 or 30-1-6 and who are not living in the same residence.
364          (14) "Victim" means a cohabitant who has been subjected to domestic violence.
365          Section 4. Section 77-36-2.7 is amended to read:
366          77-36-2.7. Dismissal -- Diversion prohibited -- Plea in abeyance -- Pretrial
367     protective order pending trial.
368          (1) Because of the serious nature of domestic violence, the court, in domestic violence
369     actions:
370          (a) may not dismiss any charge or delay disposition because of concurrent divorce or
371     other civil proceedings;
372          (b) may not require proof that either party is seeking a dissolution of marriage before
373     instigation of criminal proceedings;
374          (c) shall waive any requirement that the victim's location be disclosed other than to the
375     defendant's attorney and order the defendant's attorney not to disclose the victim's location to
376     the client;
377          (d) shall identify, on the docket sheets, the criminal actions arising from acts of
378     domestic violence; and
379          [(e) may dismiss a charge on stipulation of the prosecutor and the victim; and]
380          [(f)] (e) may hold a plea in abeyance, in accordance with the provisions of Chapter 2a,
381     Pleas in Abeyance, making treatment or any other requirement for the defendant a condition of
382     that status.
383          (2) When the court holds a plea in abeyance in accordance with Subsection (1)[(f)](e),
384     the case against a perpetrator of domestic violence may be dismissed only if the perpetrator
385     successfully completes all conditions imposed by the court. If the defendant fails to complete
386     any condition imposed by the court under Subsection (1)[(f)](e), the court may accept the
387     defendant's plea.
388          (3) (a) Because of the likelihood of repeated violence directed at those who have been
389     victims of domestic violence in the past and the vulnerability of victims of other qualifying
390     offenses, as defined in Section 77-20-3.5, when any defendant is charged with a crime
391     involving [domestic violence] a qualifying offense, the court may, during any court hearing
392     where the defendant is present, issue a pretrial protective order, pending trial:
393          (i) enjoining the defendant from threatening to commit or committing acts of domestic
394     violence or abuse against the victim and any designated family or household member;
395          (ii) prohibiting the defendant from harassing, telephoning, contacting, or otherwise
396     communicating with the victim, directly or indirectly;
397          (iii) removing and excluding the defendant from the victim's residence and the
398     premises of the residence;
399          (iv) ordering the defendant to stay away from the residence, school, place of
400     employment of the victim, and the premises of any of these, or any specified place frequented
401     by the victim and any designated family member; and
402          (v) ordering any other relief that the court considers necessary to protect and provide
403     for the safety of the victim and any designated family or household member.
404          (b) Violation of an order issued pursuant to this section is punishable as follows:
405          (i) if the original arrest or subsequent charge filed is a felony, an offense under this
406     section is a third degree felony; and
407          (ii) if the original arrest or subsequent charge filed is a misdemeanor, an offense under
408     this section is a class A misdemeanor.
409          (c) (i) The court shall provide the victim with a certified copy of any pretrial protective
410     order that has been issued if the victim can be located with reasonable effort.
411          (ii) If the court is unable to locate the victim, the court shall provide the victim's
412     certified copy to the prosecutor.
413          [(ii)] (iii) The court shall [also] transmit the pretrial protective order to the statewide
414     domestic violence network.
415          (d) Issuance of a pretrial or sentencing protective order [supercedes] supersedes a jail
416     release agreement or jail release court order.
417          (e) If the alleged victim and the defendant share custody of one or more minor children,
418     the court may include in a pretrial protective order provisions for indirect or limited contact to
419     temporarily facilitate parent visitation with a minor child.
420          (f) In a pretrial protective order the court shall determine whether to allow provisions
421     for transfer of personal property to decrease the need for contact between the parties.
422          (4) (a) When a court dismisses criminal charges or a prosecutor moves to dismiss
423     charges against a defendant accused of a domestic violence offense, the specific reasons for
424     dismissal shall be recorded in the court file and made a part of any related order or agreement
425     on the statewide domestic violence network described in Section 78B-7-113.
426          (b) The court shall transmit the dismissal to the statewide domestic violence network.
427          (c) Any pretrial protective orders, including jail release court orders and jail release
428     agreements, related to the dismissed domestic violence criminal charge shall also be dismissed.
429          [(5) When the privilege of confidential communication between spouses, or the
430     testimonial privilege of spouses is invoked in any criminal proceeding in which a spouse is the
431     victim of an alleged domestic violence offense, the victim shall be considered to be an
432     unavailable witness under the Utah Rules of Evidence.]
433          [(6)] (5) The court may not approve diversion for a perpetrator of domestic violence.