1     
DOMESTIC VIOLENCE AMENDMENTS

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Jani Iwamoto

5     
House Sponsor: Paul Ray

6     Cosponsor:
7     Daniel W. Thatcher


8     

9     LONG TITLE
10     General Description:
11          This bill addresses penalty enhancements for a domestic violence offense.
12     Highlighted Provisions:
13          This bill:
14          ▸     defines terms;
15          ▸     modifies the circumstances under which the penalty for certain domestic violence
16     offenses may be enhanced;
17          ▸     provides that an adjudication in juvenile court is not a conviction for purposes of a
18     penalty enhancement for a domestic violence offense; 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          53-10-403, as last amended by Laws of Utah 2020, Chapters 142, 214, and 415
27          77-36-1.1, as last amended by Laws of Utah 2019, Chapter 367
28          77-36-1.2, as last amended by Laws of Utah 2020, Chapter 70

29     

30     Be it enacted by the Legislature of the state of Utah:
31          Section 1. Section 53-10-403 is amended to read:
32          53-10-403. DNA specimen analysis -- Application to offenders, including minors.
33          (1) Sections 53-10-403.6, 53-10-404, 53-10-404.5, 53-10-405, and 53-10-406 apply to
34     any person who:
35          (a) has pled guilty to or has been convicted of any of the offenses under Subsection
36     (2)(a) or (b) on or after July 1, 2002;
37          (b) has pled guilty to or has been convicted by any other state or by the United States
38     government of an offense which if committed in this state would be punishable as one or more
39     of the offenses listed in Subsection (2)(a) or (b) on or after July 1, 2003;
40          (c) has been booked on or after January 1, 2011, through December 31, 2014, for any
41     offense under Subsection (2)(c);
42          (d) has been booked:
43          (i) by a law enforcement agency that is obtaining a DNA specimen on or after May 13,
44     2014, through December 31, 2014, under Subsection 53-10-404(4)(b) for any felony offense; or
45          (ii) on or after January 1, 2015, for any felony offense; or
46          (e) is a minor under Subsection (3).
47          (2) Offenses referred to in Subsection (1) are:
48          (a) any felony or class A misdemeanor under the Utah Code;
49          (b) any offense under Subsection (2)(a):
50          (i) for which the court enters a judgment for conviction to a lower degree of offense
51     under Section 76-3-402; or
52          (ii) regarding which the court allows the defendant to enter a plea in abeyance as
53     defined in Section 77-2a-1; or
54          (c) (i) any violent felony as defined in Section 53-10-403.5;
55          (ii) sale or use of body parts, Section 26-28-116;
56          (iii) failure to stop at an accident that resulted in death, Section 41-6a-401.5;

57          (iv) driving with any amount of a controlled substance in a person's body and causing
58     serious bodily injury or death, Subsection 58-37-8(2)(g);
59          (v) a felony violation of enticing a minor over the Internet, Section 76-4-401;
60          (vi) a felony violation of propelling a substance or object at a correctional officer, a
61     peace officer, or an employee or a volunteer, including health care providers, Section
62     76-5-102.6;
63          (vii) aggravated human trafficking and aggravated human smuggling, Section
64     76-5-310;
65          (viii) a felony violation of unlawful sexual activity with a minor, Section 76-5-401;
66          (ix) a felony violation of sexual abuse of a minor, Section 76-5-401.1;
67          (x) unlawful sexual contact with a 16 or 17-year old, Section 76-5-401.2;
68          (xi) sale of a child, Section 76-7-203;
69          (xii) aggravated escape, Subsection 76-8-309(2);
70          (xiii) a felony violation of assault on an elected official, Section 76-8-315;
71          (xiv) influencing, impeding, or retaliating against a judge or member of the Board of
72     Pardons and Parole, Section 76-8-316;
73          (xv) advocating criminal syndicalism or sabotage, Section 76-8-902;
74          (xvi) assembly for advocating criminal syndicalism or sabotage, Section 76-8-903;
75          (xvii) a felony violation of sexual battery, Section 76-9-702.1;
76          (xviii) a felony violation of lewdness involving a child, Section 76-9-702.5;
77          (xix) a felony violation of abuse or desecration of a dead human body, Section
78     76-9-704;
79          (xx) manufacture, possession, sale, or use of a weapon of mass destruction, Section
80     76-10-402;
81          (xxi) manufacture, possession, sale, or use of a hoax weapon of mass destruction,
82     Section 76-10-403;
83          (xxii) possession of a concealed firearm in the commission of a violent felony,
84     Subsection 76-10-504(4);

85          (xxiii) assault with the intent to commit bus hijacking with a dangerous weapon,
86     Subsection 76-10-1504(3);
87          (xxiv) commercial obstruction, Subsection 76-10-2402(2);
88          (xxv) a felony violation of failure to register as a sex or kidnap offender, Section
89     77-41-107;
90          (xxvi) repeat violation of a protective order, Subsection 77-36-1.1[(2)(c)](4); or
91          (xxvii) violation of condition for release after arrest under Section 78B-7-802 .
92          (3) A minor under Subsection (1) is a minor 14 years old or older who is adjudicated
93     by the juvenile court due to the commission of any offense described in Subsection (2), and
94     who:
95          (a) committed an offense under Subsection (2) within the jurisdiction of the juvenile
96     court on or after July 1, 2002; or
97          (b) is in the legal custody of the Division of Juvenile Justice Services on or after July 1,
98     2002 for an offense under Subsection (2).
99          Section 2. Section 77-36-1.1 is amended to read:
100          77-36-1.1. Enhancement of offense and penalty for subsequent domestic violence
101     offenses.
102          (1) As used in this section:
103          (a) (i) "Convicted" means a conviction by plea or verdict of a crime or offense.
104          (ii) "Convicted" includes:
105          (A) a plea of guilty or guilty and mentally ill;
106          (B) a plea of no contest; and
107          (C) the acceptance by the court of a plea in abeyance under Title 77, Chapter 2a, Pleas
108     in Abeyance, regardless of whether the charge is subsequently reduced or dismissed in
109     accordance with the plea in abeyance agreement.
110          (iii) "Convicted" does not include an adjudication in juvenile court.
111          [(a)] (b) "Criminal mischief offense" means commission or attempt to commit an
112     offense under Section 76-6-106 by one cohabitant against another.

113          (c) "Offense against the person" means commission or attempt to commit an offense
114     under Title 76, Chapter 5, Part 1, Assault and Related Offenses, Part 2, Criminal Homicide,
115     Part 3, Kidnapping, Trafficking, and Smuggling, Part 4, Sexual Offenses, or Part 7, Genital
116     Mutilation, by one cohabitant against another.
117          [(b)] (d) "Qualifying domestic violence offense" means:
118          (i) a domestic violence offense in Utah; or
119          (ii) an offense in any other state, or in any district, possession, or territory of the United
120     States, that would be a domestic violence offense under Utah law.
121          (2) An individual who is convicted of a domestic violence offense is[: (a)] guilty of a
122     class B misdemeanor if:
123          [(i)] (a) the domestic violence offense described in this Subsection (2) is designated by
124     law as a class C misdemeanor; and
125          [(ii) (A)] (b) the individual commits or is convicted of the domestic violence offense
126     described in this Subsection (2) [is committed]:
127          (i) within 10 years after the day on which the individual is convicted of a qualifying
128     domestic violence offense that is not a criminal mischief offense; or
129          [(B) the individual is convicted of the domestic violence offense described in this
130     Subsection (2) within 10 years after the individual is convicted of a qualifying domestic
131     violence offense that is not a criminal mischief offense;]
132          (ii) within five years after the day on which the individual is convicted of a criminal
133     mischief offense.
134          [(b)] (3) An individual who is convicted of a domestic violence offense is guilty of a
135     class A misdemeanor if:
136          [(i)] (a) the domestic violence offense described in this Subsection [(2)] (3) is
137     designated by law as a class B misdemeanor; and
138          [(ii) (A)] (b) the individual commits or is convicted of the domestic violence offense
139     described in this Subsection [(2) is committed] (3):
140          (i) within 10 years after the day on which the individual is convicted of a qualifying

141     domestic violence offense that is not a criminal mischief offense; or
142          [(B) the individual is convicted of the domestic violence offense described in this
143     Subsection (2) within 10 years after the individual is convicted of a qualifying domestic
144     violence offense that is not a criminal mischief offense; or]
145          (ii) within five years after the day on which the individual is convicted of a criminal
146     mischief offense.
147          [(c)] (4) An individual who is convicted of a domestic violence offense is guilty of a
148     [felony of the] third degree felony if:
149          (a) the domestic violence offense described in this Subsection (4) is designated by law
150     as a class B misdemeanor offense against the person and the individual:
151          (i) (A) commits or is convicted of the domestic violence offense described in this
152     Subsection (4) within 10 years after the day on which the individual is convicted of a
153     qualifying domestic violence offense that is not a criminal mischief offense; and
154          (B) is convicted of another qualifying domestic violence offense that is not a criminal
155     mischief offense after the day on which the individual is convicted of the qualifying domestic
156     violence offense described in Subsection (4)(a)(i)(A) and before the day on which the
157     individual is convicted of the domestic violence offense described in this Subsection (4);
158          (ii) (A) commits or is convicted of the domestic violence offense described in this
159     Subsection (4) within five years after the day on which the individual is convicted of a criminal
160     mischief offense; and
161          (B) is convicted of another criminal mischief offense after the day on which the
162     individual is convicted of the criminal mischief offense described in Subsection (4)(a)(ii)(A)
163     and before the day on which the individual is convicted of the domestic violence offense
164     described in this Subsection (4); or
165          (iii) commits or is convicted of the domestic violence offense described in this
166     Subsection (4) within 10 years after the day on which the individual is convicted of a
167     qualifying domestic violence offense that is not a criminal mischief offense and within five
168     years after the day on which the individual is convicted of a criminal mischief offense; and

169          [(i)] (b) (i) the domestic violence offense described in this Subsection [(2)] (4) is
170     designated by law as a class A misdemeanor; and
171          (ii) [(A)] the individual commits or is convicted of the domestic violence offense
172     described in this Subsection [(2) is committed] (4):
173          (A) within 10 years after the day on which the individual is convicted of a qualifying
174     domestic violence offense that is not a criminal mischief offense; or
175          [(B) the individual is convicted of the domestic violence offense described in this
176     Subsection (2) within 10 years after the individual is convicted of a qualifying domestic
177     violence offense that is not a criminal mischief offense.]
178          (B) within five years after the day on which the individual is convicted of a criminal
179     mischief offense.
180          [(3) An individual who is convicted of a domestic violence offense is:]
181          [(a) guilty of a class B misdemeanor if:]
182          [(i) the domestic violence offense described in this Subsection (3) is designated by law
183     as a class C misdemeanor; and]
184          [(ii) (A) the domestic violence offense described in this Subsection (3) is committed
185     within five years after the individual is convicted of a criminal mischief offense; or]
186          [(B) the individual is convicted of the domestic violence offense described in]
187          [this Subsection (3) within five years after the individual is convicted of a criminal
188     mischief offense;]
189          [(b) guilty of a class A misdemeanor if:]
190          [(i) the domestic violence offense described in this Subsection (3) is designated by law
191     as a class B misdemeanor; and]
192          [(ii) (A) the domestic violence offense described in this Subsection (3) is committed
193     within five years after the individual is convicted of a criminal mischief offense; or]
194          [(B) the individual is convicted of the domestic violence offense described in]
195          [this Subsection (3) within five years after the individual is convicted of a criminal
196     mischief offense; or]

197          [(c) guilty of a third degree felony if:]
198          [(i) the domestic violence offense described in this Subsection (3) is designated by law
199     as a class A misdemeanor; and]
200          [(ii) (A) the domestic violence offense described in this Subsection (3) is committed
201     within five years after the individual is convicted of a criminal mischief offense; or]
202          [(B) the individual is convicted of the domestic violence offense described in this
203     Subsection (3) within five years after the individual is convicted of a criminal mischief
204     offense.]
205          Section 3. Section 77-36-1.2 is amended to read:
206          77-36-1.2. Acceptance of a plea of guilty or no contest to domestic violence --
207     Restrictions.
208          [(1) For purposes of this section, "qualifying domestic violence offense" means:]
209          [(a) a domestic violence offense in Utah; or]
210          [(b) an offense in any other state, or in any district, possession, or territory of the
211     United States, that would be a domestic violence offense under Utah law.]
212          [(2) For purposes of this section and Section 77-36-1.1, a plea of guilty or no contest to
213     any domestic violence offense in Utah, which plea is held in abeyance under Title 77, Chapter
214     2a, Pleas in Abeyance, is the equivalent of a conviction, even if the charge has been
215     subsequently reduced or dismissed in accordance with the plea in abeyance agreement.]
216          [(3) (a)] (1) Before agreeing to a plea of guilty or no contest, the prosecutor shall
217     examine the criminal history of the defendant.
218          [(b)] (2) An entry of a plea of guilty or no contest to a domestic violence offense is
219     invalid unless the prosecutor agrees to the plea:
220          [(i)] (a) in open court;
221          [(ii)] (b) in writing; or
222          [(iii)] (c) by another means of communication that the court finds adequate to record
223     the prosecutor's agreement.