7 LONG TITLE
8 Committee Note:
9 The Law Enforcement and Criminal Justice Interim Committee recommended this bill.
10 General Description:
11 This bill modifies pretrial release provisions.
12 Highlighted Provisions:
13 This bill:
14 ▸ addresses the right to bail involving qualifying offenses;
15 ▸ modifies terms related to jail release agreements and jail release court orders;
16 ▸ addresses conditions for release after arrest for domestic violence and other
18 ▸ amends provisions related to dismissal of certain offenses;
19 ▸ addresses contents of pretrial protective orders;
20 ▸ repeals language regarding privileged communications; and
21 ▸ makes technical and conforming changes.
22 Money Appropriated in this Bill:
24 Other Special Clauses:
26 Utah Code Sections Affected:
28 77-20-1, as last amended by Laws of Utah 2017, Chapters 289, 311, and 332
29 77-20-3.5, as last amended by Laws of Utah 2018, Chapter 281
30 77-36-1, as last amended by Laws of Utah 2018, Chapter 255
31 77-36-2.7, as last amended by Laws of Utah 2017, Chapter 289
33 Be it enacted by the Legislature of the state of Utah:
34 Section 1. Section 77-20-1 is amended to read:
35 77-20-1. Right to bail -- Denial of bail -- Hearing.
36 (1) As used in this chapter:
37 (a) "Bail bond agency" means the same as that term is defined in Section 31A-35-102.
38 (b) "Surety" and "sureties" mean a surety insurer or a bail bond agency.
39 (c) "Surety insurer" means the same as that term is defined in Section 31A-35-102.
40 (2) [
41 admitted to bail as a matter of right, except if the [
42 (a) capital felony, when the court finds there is substantial evidence to support the
44 (b) felony committed while on probation or parole, or while free on bail awaiting trial
45 on a previous felony charge, when the court finds there is substantial evidence to support the
46 current felony charge;
47 (c) felony when there is substantial evidence to support the charge and the court finds
48 by clear and convincing evidence that the [
49 danger to any other [
50 of the court, if released on bail; [
51 (d) felony when the court finds there is substantial evidence to support the charge and
52 it finds by clear and convincing evidence that the [
53 condition of release while previously on bail[
54 (e) domestic violence offense if the court finds:
55 (i) that there is substantial evidence to support the charge; and
56 (ii) by clear and convincing evidence, that the individual would constitute a substantial
57 danger to an alleged victim of domestic violence if released on bail.
58 (3) Any [
59 undertaking or an equal amount of cash bail, or on the [
60 recognizance, on condition that the [
61 proceedings in the case, and on any other conditions imposed in the discretion of the magistrate
62 or court that will reasonably:
63 (a) ensure the appearance of the accused;
64 (b) ensure the integrity of the court process;
65 (c) prevent direct or indirect contact with witnesses or victims by the accused, if
66 appropriate; and
67 (d) ensure the safety of the public.
68 (4) (a) Except as otherwise provided, the initial order denying or fixing the amount of
69 bail shall be issued by the magistrate or court issuing the warrant of arrest.
70 (b) A magistrate may set bail upon determining that there was probable cause for a
71 warrantless arrest.
72 (c) A bail commissioner may set bail in a misdemeanor case in accordance with
73 Sections 10-3-920 and 17-32-1.
74 (d) [
75 release court order issued in accordance with Section 77-20-3.5:
76 (i) may not be released before the accused's first judicial appearance; and
77 (ii) may be denied bail by the court under Subsection [
78 (5) The magistrate or court may rely upon information contained in:
79 (a) the indictment or information;
80 (b) any sworn probable cause statement;
81 (c) information provided by any pretrial services agency; or
82 (d) any other reliable record or source.
83 (6) (a) A motion to modify the initial order may be made by a party at any time upon
84 notice to the opposing party sufficient to permit the opposing party to prepare for hearing and
85 to permit any victim to be notified and be present.
86 (b) Hearing on a motion to modify may be held in conjunction with a preliminary
87 hearing or any other pretrial hearing.
88 (c) The magistrate or court may rely on information as provided in Subsection (5) and
89 may base its ruling on evidence provided at the hearing so long as each party is provided an
90 opportunity to present additional evidence or information relevant to bail.
91 (7) Subsequent motions to modify bail orders may be made only upon a showing that
92 there has been a material change in circumstances.
93 (8) An appeal may be taken from an order of any court denying bail to the Supreme
94 Court, which shall review the determination under Subsection (2).
95 (9) For purposes of this section, any arrest or charge for a violation of Section
96 76-5-202, Aggravated murder, is a capital felony unless:
97 (a) the prosecutor files a notice of intent to not seek the death penalty; or
98 (b) the time for filing a notice to seek the death penalty has expired and the prosecutor
99 has not filed a notice to seek the death penalty.
100 Section 2. Section 77-20-3.5 is amended to read:
101 77-20-3.5. Conditions for release after arrest for domestic violence and other
102 offenses -- Jail release agreements -- Jail release court orders.
103 (1) As used in this section:
104 (a) "Domestic violence" means the same as that term is defined in Section 77-36-1.
105 (b) "Jail release agreement" means a written agreement [
106 that is entered into by an arrested individual:
109 (i) under which the arrested individual agrees to not engage in any of the following:
110 (A) have personal contact with the alleged victim;
111 (B) threaten or harass the alleged victim; or
112 (C) knowingly enter on the premises of the alleged victim's residence or on premises
113 temporarily occupied by the alleged victim; and
114 (ii) that specifies other conditions of release from jail.
115 (c) "Jail release court order" means a written court order [
119 (i) orders an arrested individual not to engage in any of the following:
120 (A) have personal contact with the alleged victim;
121 (B) threaten or harass the alleged victim; or
122 (C) knowingly enter on the premises of the alleged victim's residence or on premises
123 temporarily occupied by the alleged victim; and
124 (ii) specifies other conditions of release from jail.
125 (d) "Minor" means an unemancipated individual who is younger than 18 years of age.
126 (e) "Offense against a child or vulnerable adult" means the commission or attempted
127 commission of an offense described in Section 76-5-109, 76-5-109.1, 76-5-110, or 76-5-111.
128 (f) "Qualifying offense" means:
129 (i) domestic violence;
130 (ii) an offense against a child or vulnerable adult; or
131 (iii) the commission or attempted commission of an offense described in Title 76,
132 Chapter 5, Part 4, Sexual Offenses.
133 (2) (a) Upon arrest for a qualifying offense and before the [
134 released on bail, recognizance, or otherwise, the [
135 the alleged victim.
136 (b) [
138 (3) (a) After [
139 individual may not be released before:
140 (i) the matter is submitted to a magistrate in accordance with Section 77-7-23; or
141 (ii) the [
143 (b) The arresting officer shall ensure that the information presented to the magistrate
144 includes whether the alleged victim has made a waiver described in Subsection (6)(a).
145 (c) (i) If the magistrate determines there is probable cause to support the charge or
146 charges of one or more qualifying offenses , the magistrate shall determine[
148 bail, in accordance with Section 77-20-1[
150 (ii) If the magistrate determines that the arrested individual has the right to be admitted
151 to bail, the magistrate shall determine:
152 (A) whether any release conditions, including electronic monitoring, are necessary to
153 protect the alleged victim; [
155 appearance in court.
169 (d) The magistrate may not release an individual arrested for a qualifying offense
170 unless the magistrate issues a jail release court order or the arrested individual signs a jail
171 release agreement.
172 (4) (a) If [
173 schedule an initial appearance or to appear at the time scheduled by the magistrate [
175 comply with the release conditions [
176 release agreement or jail release court order until the individual makes an initial appearance.
177 (b) If the prosecutor has not filed charges against [
178 arrested for a qualifying offense and who appears in court at the time scheduled by the
179 magistrate under Subsection (3)[
180 (i) may, upon the motion of the prosecutor and after allowing the [
181 an opportunity to be heard on the motion, extend the release conditions described in
183 three court days; and
184 (ii) if the court grants the motion described in Subsection (4)(b)(i), shall order the
185 arrested [
187 (c) (i) If the prosecutor determines that there is insufficient evidence to file charges
188 before an initial appearance scheduled under Subsection (4)(a), the prosecutor shall transmit a
189 notice of declination to either the magistrate who signed the jail release court order or, if the
190 releasing agency obtains a jail release agreement from the released arrestee, to the statewide
191 domestic violence network described in Section 78B-7-113.
192 (ii) A prosecutor's notice of declination transmitted under this Subsection (4)(c) is
193 considered a motion to dismiss a jail release court order and a notice of expiration of a jail
194 release agreement.
195 (5) Except as provided in Subsection (4) or otherwise ordered by a court, a jail release
196 agreement or jail release court order expires at midnight after the earlier of:
197 (a) the arrested [
198 Subsection [
199 (b) the day on which the prosecutor transmits the notice of the declination under
200 Subsection (4)(c); or
201 (c) 30 days after the day on which the arrested individual is arrested.
202 (6) (a) (i) After an arrest for a qualifying offense , an alleged victim who is not a minor
203 may waive in writing the release conditions [
205 (A) personal contact with the alleged victim; or
206 (B) knowingly entering on the premises of the alleged victim's residence or on
207 premises temporarily occupied by the alleged victim.
208 (ii) Upon waiver, [
209 apply to the arrested [
210 (b) A court or magistrate may modify [
212 only for good cause shown.
213 (7) (a) When an arrested [
214 (3), the releasing agency shall:
215 (i) notify the arresting law enforcement agency of the release, conditions of release, and
216 any available information concerning the location of the alleged victim;
217 (ii) make a reasonable effort to notify the alleged victim of the release; and
218 (iii) before releasing the arrested [
219 individual a copy of the jail release agreement or the jail release court order.
220 (b) (i) When [
221 pursuant to [
222 releasing agency shall transmit that information to the statewide domestic violence network
223 described in Section 78B-7-113.
224 (ii) When [
225 to [
227 transmit that order to the statewide domestic violence network described in Section 78B-7-113.
228 (c) This Subsection (7) does not create or increase liability of a law enforcement officer
229 or agency, and the good faith immunity provided by Section 77-36-8 is applicable.
230 (8) (a) If a law enforcement officer has probable cause to believe that [
231 individual has violated a jail release agreement or jail release court order, the officer shall,
232 without a warrant, arrest the [
233 (b) [
234 release agreement executed pursuant to Subsection (3) is guilty as follows:
235 (i) if the original arrest was for a felony, an offense under this section is a third degree
236 felony; or
237 (ii) if the original arrest was for a misdemeanor, an offense under this section is a class
238 A misdemeanor.
239 (c) [
240 under this section.
241 (9) [
242 and released in accordance with this section may subsequently be held without bail if there is
243 substantial evidence to support a new felony charge against the [
244 (10) At the time an arrest is made for a qualifying offense , the arresting officer shall
245 provide the alleged victim with written notice containing:
246 (a) the release conditions described in [
247 notice that the alleged perpetrator will not be released, before appearing before the court with
248 jurisdiction over the offense for which the alleged perpetrator was arrested, unless:
249 (i) the alleged perpetrator enters into a [
250 the release conditions; or
251 (ii) the magistrate [
253 (b) notification of the penalties for violation of any jail release agreement or jail release
254 court order;
258 alleged victim resides;
261 criminal protective orders with or without the assistance of an attorney.
262 (11) At the time an arrest is made for a qualifying offense , the arresting officer shall
263 provide the alleged perpetrator with written notice containing:
264 (a) notification that the alleged perpetrator may not contact the alleged victim before
265 being released;
266 (b) the release conditions described in [
267 notice that the alleged perpetrator will not be released, before appearing before the court with
268 jurisdiction over the offense for which the alleged perpetrator was arrested, unless:
269 (i) the alleged perpetrator enters into a [
270 the release conditions; or
271 (ii) the magistrate [
272 (c) notification of the penalties for violation of any jail release agreement or jail release
273 court order; and
274 (d) notification that the alleged perpetrator is to personally appear in court on the next
275 day the court is open for business after the day of the arrest.
276 (12) (a) A pretrial or sentencing protective order supercedes a jail release agreement or
277 jail release court order.
278 (b) If a court dismisses the charges for the qualifying offense that gave rise to a jail
279 release agreement or jail release court order, the court shall dismiss the jail release agreement
280 or jail release court order.
290 (13) This section does not apply if the [
291 offense is a minor, unless the qualifying offense is domestic violence.
292 Section 3. Section 77-36-1 is amended to read:
293 77-36-1. Definitions.
294 As used in this chapter:
295 (1) "Cohabitant" means the same as that term is defined in Section 78B-7-102.
296 (2) "Department" means the Department of Public Safety.
297 (3) "Divorced" means an individual who has obtained a divorce under Title 30, Chapter
298 3, Divorce.
299 (4) "Domestic violence" or "domestic violence offense" means any criminal offense
300 involving violence or physical harm or threat of violence or physical harm, or any attempt,
301 conspiracy, or solicitation to commit a criminal offense involving violence or physical harm,
302 when committed by one cohabitant against another. "Domestic violence" or "domestic
303 violence offense" [
304 following offenses by one cohabitant against another:
305 (a) aggravated assault, as described in Section 76-5-103;
306 (b) assault, as described in Section 76-5-102;
307 (c) criminal homicide, as described in Section 76-5-201;
308 (d) harassment, as described in Section 76-5-106;
309 (e) electronic communication harassment, as described in Section 76-9-201;
310 (f) kidnapping, child kidnapping, or aggravated kidnapping, as described in Sections
311 76-5-301, 76-5-301.1, and 76-5-302;
312 (g) mayhem, as described in Section 76-5-105;
313 (h) sexual offenses, as described in Title 76, Chapter 5, Part 4, Sexual Offenses, and
314 Section 76-5b-201, Sexual exploitation of a minor -- Offenses;
315 (i) stalking, as described in Section 76-5-106.5;
316 (j) unlawful detention or unlawful detention of a minor, as described in Section
318 (k) violation of a protective order or ex parte protective order, as described in Section
320 (l) any offense against property described in Title 76, Chapter 6, Part 1, Property
321 Destruction, Title 76, Chapter 6, Part 2, Burglary and Criminal Trespass, or Title 76, Chapter 6,
322 Part 3, Robbery;
323 (m) possession of a deadly weapon with criminal intent, as described in Section
325 (n) discharge of a firearm from a vehicle, near a highway, or in the direction of any
326 person, building, or vehicle, as described in Section 76-10-508;
327 (o) disorderly conduct, as defined in Section 76-9-102, if a conviction of disorderly
328 conduct is the result of a plea agreement in which the defendant was originally charged with a
329 domestic violence offense otherwise described in this Subsection (4), except that a conviction
330 of disorderly conduct as a domestic violence offense, in the manner described in this
331 Subsection (4)(o), does not constitute a misdemeanor crime of domestic violence under 18
332 U.S.C. Sec. 921, and is exempt from the federal Firearms Act, 18 U.S.C. Sec. 921 et seq.;
333 (p) child abuse, as described in Section 76-5-109.1;
334 (q) threatening use of a dangerous weapon, as described in Section 76-10-506;
335 (r) threatening violence, as described in Section 76-5-107;
336 (s) tampering with a witness, as described in Section 76-8-508;
337 (t) retaliation against a witness or victim, as described in Section 76-8-508.3;
338 (u) unlawful distribution of an intimate image, as described in Section 76-5b-203;
339 (v) sexual battery, as described in Section 76-9-702.1;
340 (w) voyeurism, as described in Section 76-9-702.7;
341 (x) damage to or interruption of a communication device, as described in Section
342 76-6-108; or
343 (y) an offense described in Section 77-20-3.5.
344 (5) "Jail release agreement" means the same as that term is defined in Section
346 (6) "Jail release court order" means the same as that term is defined in Section
348 (7) "Marital status" means married and living together, divorced, separated, or not
350 (8) "Married and living together" means a couple whose marriage was solemnized
351 under Section 30-1-4 or 30-1-6 and who are living in the same residence.
352 (9) "Not married" means any living arrangement other than married and living together,
353 divorced, or separated.
354 (10) "Protective order" includes an order issued under Subsection 77-36-5.1(6).
355 (11) "Pretrial protective order" means a written order:
356 (a) specifying and limiting the contact a person who has been charged with a domestic
357 violence offense may have with an alleged victim or other specified individuals; and
358 (b) specifying other conditions of release pursuant to [
359 77-20-3.5, Subsection 77-36-2.6(3), or Section 77-36-2.7, pending trial in the criminal case.
360 (12) "Sentencing protective order" means a written order of the court as part of
361 sentencing in a domestic violence case that limits the contact a person who has been convicted
362 of a domestic violence offense may have with a victim or other specified individuals pursuant
363 to Sections 77-36-5 and 77-36-5.1.
364 (13) "Separated" means a couple who have had their marriage solemnized under
365 Section 30-1-4 or 30-1-6 and who are not living in the same residence.
366 (14) "Victim" means a cohabitant who has been subjected to domestic violence.
367 Section 4. Section 77-36-2.7 is amended to read:
368 77-36-2.7. Dismissal -- Diversion prohibited -- Plea in abeyance -- Pretrial
369 protective order pending trial.
370 (1) Because of the serious nature of domestic violence, the court, in domestic violence
372 (a) may not dismiss any charge or delay disposition because of concurrent divorce or
373 other civil proceedings;
374 (b) may not require proof that either party is seeking a dissolution of marriage before
375 instigation of criminal proceedings;
376 (c) shall waive any requirement that the victim's location be disclosed other than to the
377 defendant's attorney and order the defendant's attorney not to disclose the victim's location to
378 the client;
379 (d) shall identify, on the docket sheets, the criminal actions arising from acts of
380 domestic violence; and
383 Pleas in Abeyance, making treatment or any other requirement for the defendant a condition of
384 that status.
385 (2) When the court holds a plea in abeyance in accordance with Subsection (1)[
386 the case against a perpetrator of domestic violence may be dismissed only if the perpetrator
387 successfully completes all conditions imposed by the court. If the defendant fails to complete
388 any condition imposed by the court under Subsection (1)[
389 defendant's plea.
390 (3) (a) Because of the likelihood of repeated violence directed at those who have been
391 victims of domestic violence in the past and the vulnerability of victims of other qualifying
392 offenses, as defined in Section 77-20-3.5, when any defendant is charged with a crime
393 involving [
394 where the defendant is present, issue a pretrial protective order, pending trial:
395 (i) enjoining the defendant from threatening to commit or committing acts of domestic
396 violence or abuse against the victim and any designated family or household member;
397 (ii) prohibiting the defendant from harassing, telephoning, contacting, or otherwise
398 communicating with the victim, directly or indirectly;
399 (iii) removing and excluding the defendant from the victim's residence and the
400 premises of the residence;
401 (iv) ordering the defendant to stay away from the residence, school, place of
402 employment of the victim, and the premises of any of these, or any specified place frequented
403 by the victim and any designated family member; and
404 (v) ordering any other relief that the court considers necessary to protect and provide
405 for the safety of the victim and any designated family or household member.
406 (b) Violation of an order issued pursuant to this section is punishable as follows:
407 (i) if the original arrest or subsequent charge filed is a felony, an offense under this
408 section is a third degree felony; and
409 (ii) if the original arrest or subsequent charge filed is a misdemeanor, an offense under
410 this section is a class A misdemeanor.
411 (c) (i) The court shall provide the victim with a certified copy of any pretrial protective
412 order that has been issued if the victim can be located with reasonable effort.
413 (ii) If the court is unable to locate the victim, the court shall provide the victim's
414 certified copy to the prosecutor.
416 domestic violence network.
417 (d) Issuance of a pretrial or sentencing protective order [
418 release agreement or jail release court order.
419 (e) If the alleged victim and the defendant share custody of one or more minor children,
420 the court may include in a pretrial protective order provisions for indirect or limited contact to
421 temporarily facilitate parent visitation with a minor child.
422 (f) In a pretrial protective order the court shall determine whether to allow provisions
423 for transfer of personal property to decrease the need for contact between the parties.
424 (4) (a) When a court dismisses criminal charges or a prosecutor moves to dismiss
425 charges against a defendant accused of a domestic violence offense, the specific reasons for
426 dismissal shall be recorded in the court file and made a part of any related order or agreement
427 on the statewide domestic violence network described in Section 78B-7-113.
428 (b) The court shall transmit the dismissal to the statewide domestic violence network.
429 (c) Any pretrial protective orders, including jail release court orders and jail release
430 agreements, related to the dismissed domestic violence criminal charge shall also be dismissed.