1     
DUI REVISIONS

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Steve Eliason

5     
Senate Sponsor: Jerry W. Stevenson

6     Cosponsors:
7     Melissa G. Ballard
8     Matthew H. Gwynn
9     Marsha Judkins
Karianne Lisonbee
Paul Ray
Jeffrey D. Stenquist
Andrew Stoddard
Christine F. Watkins
Brad R. Wilson
Mike Winder

10     

11     LONG TITLE
12     General Description:
13          This bill makes changes to bail provisions for DUI offenses.
14     Highlighted Provisions:
15          This bill:
16          ▸     creates a presumption of pretrial detention for individuals charged with certain DUI
17     offenses.
18     Money Appropriated in this Bill:
19          None
20     Other Special Clauses:
21          None
22     Utah Code Sections Affected:
23     AMENDS:
24          77-20-1, as last amended by Laws of Utah 2020, Chapters 142 and 185
25     

26     Be it enacted by the Legislature of the state of Utah:

27          Section 1. Section 77-20-1 is amended to read:
28          77-20-1. Right to bail -- Pretrial status order -- Denial of bail -- Detention hearing
29     -- Motion to modify.
30          (1) As used in this chapter:
31          (a) "Bail bond agency" means the same as that term is defined in Section 31A-35-102.
32          (b) "Financial condition" or "monetary bail" means any monetary condition that may be
33     imposed under Section 77-20-4 to secure an individual's pretrial release.
34          (c) "Pretrial release" or "bail" means release of an individual charged with or arrested
35     for a criminal offense from law enforcement or judicial custody during the time the individual
36     awaits trial or other resolution of the criminal charges.
37          (d) "Pretrial status order" means an order issued by the court exercising jurisdiction
38     over an individual charged with a criminal offense that sets the terms and conditions of the
39     individual's pretrial release or denies pretrial release and orders that the individual be detained
40     pending resolution of the criminal charges.
41          (e) "Surety" and "sureties" mean a surety insurer or a bail bond agency.
42          (f) "Surety insurer" means the same as that term is defined in Section 31A-35-102.
43          (2) An individual charged with or arrested for a criminal offense shall be admitted to
44     bail as a matter of right, except if the individual is charged with [a]:
45          (a) a capital felony, when the court finds there is substantial evidence to support the
46     charge;
47          (b) a felony committed while on probation or parole, or while free on bail awaiting trial
48     on a previous felony charge, when the court finds there is substantial evidence to support the
49     current felony charge;
50          (c) a felony when there is substantial evidence to support the charge and the court finds
51     by clear and convincing evidence that the individual would constitute a substantial danger to
52     any other individual or to the community, or is likely to flee the jurisdiction of the court, if
53     released on bail;

54          (d) a felony when the court finds there is substantial evidence to support the charge and
55     the court finds by clear and convincing evidence that the individual violated a material
56     condition of release while previously on bail; [or]
57          (e) a domestic violence offense if the court finds:
58          (i) that there is substantial evidence to support the charge; and
59          (ii) by clear and convincing evidence, that the individual would constitute a substantial
60     danger to an alleged victim of domestic violence if released on bail[.]; or
61          (f) the offense of driving under the influence or driving with a measurable controlled
62     substance in the body if:
63          (i) the offense results in death or serious bodily injury to an individual; and
64          (ii) the court finds:
65          (A) that there is substantial evidence to support the charge; and
66          (B) by clear and convincing evidence that the person would constitute a substantial
67     danger to the community if released on bail.
68          (3) (a) A court exercising jurisdiction over an individual charged with or arrested for a
69     criminal offense shall issue a pretrial status order designating the conditions to be imposed
70     upon the individual's release or ordering that the individual be detained under this section
71     during the time the individual awaits trial or other resolution of the criminal charges.
72          (b) A court granting pretrial release shall impose the least restrictive reasonably
73     available conditions of release on the individual who is the subject of the pretrial status order
74     that the court determines will reasonably ensure:
75          (i) the individual's appearance in court when required;
76          (ii) the safety of any witnesses or victims of the offense allegedly committed by the
77     individual;
78          (iii) the safety and welfare of the public; and
79          (iv) that the individual will not obstruct or attempt to obstruct the criminal justice
80     process.

81          (c) (i) The court shall issue the pretrial status order without unnecessary delay.
82          (ii) If a prosecutor files a motion for detention under Subsection (6), the court may
83     delay issuing the pretrial status order until after hearing the motion to detain if the court finds:
84          (A) the prosecutor's motion states a reasonable case for detention; and
85          (B) detaining the defendant until after the motion is heard is in the interests of justice
86     and public safety.
87          (d) Victim testimony is not required at a hearing on a motion to detain if an appearance
88     by the victim would present an undue burden upon the victim.
89          (e) Notwithstanding any other provisions of this section, there is a rebuttable
90     presumption that an individual is a substantial danger to the community:
91          (i) as long as the individual has a blood or breath alcohol concentration of .05 grams or
92     greater if the individual is arrested for or charged with the offense of driving under the
93     influence and the offense resulted in death or serious bodily injury to an individual; or
94          (ii) if the individual has a measurable amount of controlled substance in the
95     individual's body, the individual is arrested for or charged with the offense of driving with a
96     measurable controlled substance in the body, and the offense resulted in death or serious bodily
97     injury to an individual.
98          (4) (a) Except as otherwise provided in this section or Section 78B-7-802, the court
99     shall order that an individual charged with a criminal offense be released on the individual's
100     own recognizance, on condition that the individual appear at all required court proceedings, if
101     the court finds that additional conditions are not necessary to reasonably ensure compliance
102     with Subsection (3)(b).
103          (b) The court shall impose additional release conditions if the court finds that
104     additional release conditions are necessary to reasonably ensure compliance with Subsection
105     (3)(b). The conditions imposed may include that the individual:
106          (i) not commit a federal, state, or local offense during the period of release;
107          (ii) avoid contact with a victim or victims of the alleged offense;

108          (iii) avoid contact with a witness or witnesses who may testify concerning the alleged
109     offense that are named in the pretrial status order;
110          (iv) not use or consume alcohol, or any narcotic drug or other controlled substance
111     except as prescribed by a licensed medical practitioner;
112          (v) submit to drug or alcohol testing;
113          (vi) complete a substance abuse evaluation and comply with any recommended
114     treatment or release program;
115          (vii) submit to electronic monitoring or location device tracking;
116          (viii) participate in inpatient or outpatient medical, behavioral, psychological, or
117     psychiatric treatment;
118          (ix) maintain employment, or if unemployed, actively seek employment;
119          (x) maintain or commence an education program;
120          (xi) comply with limitations on where the individual is allowed to be located or the
121     times the individual shall be or may not be at a specified location;
122          (xii) comply with specified restrictions on personal associations, place of residence, or
123     travel;
124          (xiii) report to a law enforcement agency, pretrial services program, or other designated
125     agency at a specified frequency or on specified dates;
126          (xiv) comply with a specified curfew;
127          (xv) forfeit or refrain from possession of a firearm or other dangerous weapon;
128          (xvi) if the individual is charged with an offense against a child, is limited or denied
129     access to any location or occupation where children are, including any residence where children
130     are on the premises, activities including organized activities in which children are involved,
131     locations where children congregate, or where a reasonable person should know that children
132     congregate;
133          (xvii) comply with requirements for house arrest;
134          (xviii) return to custody for a specified period of time following release for

135     employment, schooling, or other limited purposes;
136          (xix) remain in the custody of one or more designated individuals who agree to
137     supervise and report on the behavior and activities of the individual charged and to encourage
138     compliance with all court orders and attendance at all required court proceedings;
139          (xx) comply with a financial condition; or
140          (xxi) comply with any other condition that is necessary to reasonably ensure
141     compliance with Subsection (3)(b).
142          (c) If the court determines a financial condition, other than an unsecured bond, is
143     necessary to impose on an individual as part of the individual's pretrial release, the court shall
144     consider the individual's ability to pay when determining the amount of the financial condition.
145          (5) In making a determination under Subsection (3), the court may rely on the
146     following:
147          (a) any form of pretrial services assessment;
148          (b) the nature and circumstances of the offense or offenses charged, including whether
149     the charges include a violent offense and the vulnerability of witnesses or alleged victims;
150          (c) the nature and circumstances of the individual, including the individual's character,
151     physical and mental health, family and community ties, employment status and history,
152     financial resources, past criminal conduct, history of drug or alcohol abuse, and history of
153     timely appearances at required court proceedings;
154          (d) the potential danger to another individual or individuals posed by the release of the
155     individual;
156          (e) if the individual was on probation, parole, or release pending an upcoming court
157     proceeding at the time the individual allegedly committed the offense;
158          (f) the availability of other individuals who agree to assist the individual in attending
159     court when required or other evidence relevant to the individual's opportunities for supervision
160     in the individual's community;
161          (g) the eligibility and willingness of the individual to participate in various treatment

162     programs, including drug treatment; or
163          (h) other evidence relevant to the individual's likelihood of fleeing or violating the law
164     if released.
165          (6) (a) If the criminal charges filed against the individual include one or more offenses
166     eligible for detention under Subsection (2) or Utah Constitution, Article I, Section 8, the
167     prosecution may file a motion for pretrial detention.
168          (b) Upon receiving a motion under Subsection (6)(a), the court shall set a hearing on
169     the matter as soon as practicable.
170          (c) The individual who is the subject of the detention hearing has the right to be
171     represented by counsel at the pretrial detention hearing and, if a court finds the individual is
172     indigent under Section 78B-22-202, the court shall appoint counsel to represent the individual
173     in accordance with Section 78B-22-203.
174          (d) The court shall give both parties the opportunity to make arguments and to present
175     relevant evidence at the detention hearing.
176          (7) After hearing evidence on a motion for pretrial detention, the court may detain the
177     individual if:
178          (a) the individual is accused of committing an offense that qualifies the individual for
179     detention under Subsection (2) or Utah Constitution, Article I, Section 8;
180          (b) the prosecution demonstrates substantial evidence to support the charge, and meets
181     all additional evidentiary burdens required under Subsection (2) or Utah Constitution, Article I,
182     Section 8; and
183          (c) the court finds that no conditions that may be imposed upon granting the individual
184     pretrial release will reasonably ensure compliance with Subsection (3)(b).
185          (8) (a) If an individual is charged with a criminal offense described in Subsection
186     (8)(b), there is a rebuttable presumption that the individual be detained.
187          (b) Criminal charges that create a rebuttable presumption of detention under
188     Subsection (8)(a) include:

189          (i) criminal homicide as defined in Section 75-5-201; and
190          (ii) any offense for which the term of imprisonment may include life.
191          (c) The individual may rebut the presumption of detention by demonstrating, by a
192     preponderance of the evidence, that specified conditions of release will reasonably ensure
193     compliance with Subsection (3)(b).
194          (9) Except as otherwise provided, the court issuing a pretrial warrant of arrest shall
195     issue the initial pretrial status order.
196          (10) (a) An individual arrested for a violation of a jail release agreement or jail release
197     court order issued in accordance with Section 78B-7-802:
198          (i) may be denied pretrial release by the court under Subsection (2); and
199          (ii) if denied pretrial release, may not be released before the individual's initial
200     appearance before the court.
201          (b) Nothing in this section precludes or nullifies a jail release agreement or jail release
202     order required under Section 78B-7-802.
203          (11) (a) A motion to modify the initial pretrial status order may be made by a party at
204     any time upon notice to the opposing party sufficient to permit the opposing party to prepare
205     for hearing and to permit each alleged victim to be notified and be present.
206          (b) Hearing on a motion to modify a pretrial status order may be held in conjunction
207     with a preliminary hearing or any other pretrial hearing.
208          (c) The court may rely on information as provided in Subsection (5) and may base its
209     ruling on evidence provided at the hearing so long as each party is provided an opportunity to
210     present additional evidence or information relevant to bail.
211          (12) Subsequent motions to modify a pretrial status order may be made only upon a
212     showing that there has been a material change in circumstances.
213          (13) An appeal may be taken from an order of a court denying bail to the Utah Court of
214     Appeals pursuant to the Utah Rules of Appellate Procedure, which shall review the
215     determination under Subsection (7).

216          (14) For purposes of this section, any arrest or charge for a violation of Section
217     76-5-202, Aggravated murder, is a capital felony unless:
218          (a) the prosecutor files a notice of intent to not seek the death penalty; or
219          (b) the time for filing a notice to seek the death penalty has expired and the prosecutor
220     has not filed a notice to seek the death penalty.