1     
DOMESTIC VIOLENCE AMENDMENTS

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Jani Iwamoto

5     
House Sponsor: Paul Ray

6     

7     LONG TITLE
8     General Description:
9          This bill addresses penalty enhancements for a domestic violence offense.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     modifies the circumstances under which the penalty for certain domestic violence
14     offenses may be enhanced;
15          ▸     provides that an adjudication in juvenile court is not a conviction for purposes of a
16     penalty enhancement for a domestic violence offense; and
17          ▸     makes technical and conforming changes.
18     Money Appropriated in this Bill:
19          None
20     Other Special Clauses:
21          None
22     Utah Code Sections Affected:
23     AMENDS:
24          53-10-403, as last amended by Laws of Utah 2020, Chapters 142, 214, and 415
25          77-36-1.1, as last amended by Laws of Utah 2019, Chapter 367
26          77-36-1.2, as last amended by Laws of Utah 2020, Chapter 70
27     


28     Be it enacted by the Legislature of the state of Utah:
29          Section 1. Section 53-10-403 is amended to read:
30          53-10-403. DNA specimen analysis -- Application to offenders, including minors.
31          (1) Sections 53-10-403.6, 53-10-404, 53-10-404.5, 53-10-405, and 53-10-406 apply to
32     any person who:
33          (a) has pled guilty to or has been convicted of any of the offenses under Subsection
34     (2)(a) or (b) on or after July 1, 2002;
35          (b) has pled guilty to or has been convicted by any other state or by the United States
36     government of an offense which if committed in this state would be punishable as one or more
37     of the offenses listed in Subsection (2)(a) or (b) on or after July 1, 2003;
38          (c) has been booked on or after January 1, 2011, through December 31, 2014, for any
39     offense under Subsection (2)(c);
40          (d) has been booked:
41          (i) by a law enforcement agency that is obtaining a DNA specimen on or after May 13,
42     2014, through December 31, 2014, under Subsection 53-10-404(4)(b) for any felony offense; or
43          (ii) on or after January 1, 2015, for any felony offense; or
44          (e) is a minor under Subsection (3).
45          (2) Offenses referred to in Subsection (1) are:
46          (a) any felony or class A misdemeanor under the Utah Code;
47          (b) any offense under Subsection (2)(a):
48          (i) for which the court enters a judgment for conviction to a lower degree of offense
49     under Section 76-3-402; or
50          (ii) regarding which the court allows the defendant to enter a plea in abeyance as
51     defined in Section 77-2a-1; or
52          (c) (i) any violent felony as defined in Section 53-10-403.5;
53          (ii) sale or use of body parts, Section 26-28-116;
54          (iii) failure to stop at an accident that resulted in death, Section 41-6a-401.5;
55          (iv) driving with any amount of a controlled substance in a person's body and causing
56     serious bodily injury or death, Subsection 58-37-8(2)(g);
57          (v) a felony violation of enticing a minor over the Internet, Section 76-4-401;
58          (vi) a felony violation of propelling a substance or object at a correctional officer, a

59     peace officer, or an employee or a volunteer, including health care providers, Section
60     76-5-102.6;
61          (vii) aggravated human trafficking and aggravated human smuggling, Section
62     76-5-310;
63          (viii) a felony violation of unlawful sexual activity with a minor, Section 76-5-401;
64          (ix) a felony violation of sexual abuse of a minor, Section 76-5-401.1;
65          (x) unlawful sexual contact with a 16 or 17-year old, Section 76-5-401.2;
66          (xi) sale of a child, Section 76-7-203;
67          (xii) aggravated escape, Subsection 76-8-309(2);
68          (xiii) a felony violation of assault on an elected official, Section 76-8-315;
69          (xiv) influencing, impeding, or retaliating against a judge or member of the Board of
70     Pardons and Parole, Section 76-8-316;
71          (xv) advocating criminal syndicalism or sabotage, Section 76-8-902;
72          (xvi) assembly for advocating criminal syndicalism or sabotage, Section 76-8-903;
73          (xvii) a felony violation of sexual battery, Section 76-9-702.1;
74          (xviii) a felony violation of lewdness involving a child, Section 76-9-702.5;
75          (xix) a felony violation of abuse or desecration of a dead human body, Section
76     76-9-704;
77          (xx) manufacture, possession, sale, or use of a weapon of mass destruction, Section
78     76-10-402;
79          (xxi) manufacture, possession, sale, or use of a hoax weapon of mass destruction,
80     Section 76-10-403;
81          (xxii) possession of a concealed firearm in the commission of a violent felony,
82     Subsection 76-10-504(4);
83          (xxiii) assault with the intent to commit bus hijacking with a dangerous weapon,
84     Subsection 76-10-1504(3);
85          (xxiv) commercial obstruction, Subsection 76-10-2402(2);
86          (xxv) a felony violation of failure to register as a sex or kidnap offender, Section
87     77-41-107;
88          (xxvi) repeat violation of a protective order, Subsection 77-36-1.1[(2)(c)](4); or
89          (xxvii) violation of condition for release after arrest under Section 78B-7-802 .

90          (3) A minor under Subsection (1) is a minor 14 years old or older who is adjudicated
91     by the juvenile court due to the commission of any offense described in Subsection (2), and
92     who:
93          (a) committed an offense under Subsection (2) within the jurisdiction of the juvenile
94     court on or after July 1, 2002; or
95          (b) is in the legal custody of the Division of Juvenile Justice Services on or after July 1,
96     2002 for an offense under Subsection (2).
97          Section 2. Section 77-36-1.1 is amended to read:
98          77-36-1.1. Enhancement of offense and penalty for subsequent domestic violence
99     offenses.
100          (1) As used in this section:
101          (a) (i) "Convicted" means a conviction by plea or verdict of a crime or offense.
102          (ii) "Convicted" includes:
103          (A) a plea of guilty or guilty and mentally ill;
104          (B) a plea of no contest; and
105          (C) the acceptance by the court of a plea in abeyance under Title 77, Chapter 2a, Pleas
106     in Abeyance, regardless of whether the charge is subsequently reduced or dismissed in
107     accordance with the plea in abeyance agreement.
108          (iii) "Convicted" does not include an adjudication in juvenile court.
109          [(a)] (b) "Criminal mischief offense" means commission or attempt to commit an
110     offense under Section 76-6-106 by one cohabitant against another.
111          (c) "Offense against the person" means commission or attempt to commit an offense
112     under Title 76, Chapter 5, Part 1, Assault and Related Offenses, Part 2, Criminal Homicide,
113     Part 3, Kidnapping, Trafficking, and Smuggling, Part 4, Sexual Offenses, or Part 7, Genital
114     Mutilation, by one cohabitant against another.
115          [(b)] (d) "Qualifying domestic violence offense" means:
116          (i) a domestic violence offense in Utah; or
117          (ii) an offense in any other state, or in any district, possession, or territory of the United
118     States, that would be a domestic violence offense under Utah law.
119          (2) An individual who is convicted of a domestic violence offense is[: (a)] guilty of a
120     class B misdemeanor if:

121          [(i)] (a) the domestic violence offense described in this Subsection (2) is designated by
122     law as a class C misdemeanor; and
123          [(ii) (A)] (b) the individual commits or is convicted of the domestic violence offense
124     described in this Subsection (2) [is committed]:
125          (i) within 10 years after the day on which the individual is convicted of a qualifying
126     domestic violence offense that is not a criminal mischief offense; or
127          [(B) the individual is convicted of the domestic violence offense described in this
128     Subsection (2) within 10 years after the individual is convicted of a qualifying domestic
129     violence offense that is not a criminal mischief offense;]
130          (ii) within five years after the day on which the individual is convicted of a criminal
131     mischief offense.
132          [(b)] (3) An individual who is convicted of a domestic violence offense is guilty of a
133     class A misdemeanor if:
134          [(i)] (a) the domestic violence offense described in this Subsection [(2)] (3) is
135     designated by law as a class B misdemeanor; and
136          [(ii) (A)] (b) the individual commits or is convicted of the domestic violence offense
137     described in this Subsection [(2) is committed] (3):
138          (i) within 10 years after the day on which the individual is convicted of a qualifying
139     domestic violence offense that is not a criminal mischief offense; or
140          [(B) the individual is convicted of the domestic violence offense described in this
141     Subsection (2) within 10 years after the individual is convicted of a qualifying domestic
142     violence offense that is not a criminal mischief offense; or]
143          (ii) within five years after the day on which the individual is convicted of a criminal
144     mischief offense.
145          [(c)] (4) An individual who is convicted of a domestic violence offense is guilty of a
146     [felony of the] third degree felony if:
147          (a) the domestic violence offense described in this Subsection (4) is designated by law
148     as a class B misdemeanor offense against the person and the individual:
149          (i) (A) commits or is convicted of the domestic violence offense described in this
150     Subsection (4) within 10 years after the day on which the individual is convicted of a
151     qualifying domestic violence offense that is not a criminal mischief offense; and

152          (B) is convicted of another qualifying domestic violence offense that is not a criminal
153     mischief offense after the day on which the individual is convicted of the qualifying domestic
154     violence offense described in Subsection (4)(a)(i)(A) and before the day on which the
155     individual is convicted of the domestic violence offense described in this Subsection (4);
156          (ii) (A) commits or is convicted of the domestic violence offense described in this
157     Subsection (4) within five years after the day on which individual is convicted of a criminal
158     mischief offense; and
159          (B) is convicted of another criminal mischief offense after the day on which the
160     individual is convicted of the criminal mischief offense described in Subsection (4)(a)(ii)(A)
161     and before the day on which the individual is convicted of the domestic violence offense
162     described in this Subsection (4); or
163          (iii) commits or is convicted of the domestic violence offense described in this
164     Subsection (4) within 10 years after the day on which the individual is convicted of a
165     qualifying domestic violence offense that is not a criminal mischief offense and within five
166     years after the day on which the individual is convicted of a criminal mischief offense; and
167          [(i)] (b) (i) the domestic violence offense described in this Subsection [(2)] (4) is
168     designated by law as a class A misdemeanor; and
169          (ii) [(A)] the individual commits or is convicted of the domestic violence offense
170     described in this Subsection [(2) is committed] (4):
171          (A) within 10 years after the day on which the individual is convicted of a qualifying
172     domestic violence offense that is not a criminal mischief offense; or
173          [(B) the individual is convicted of the domestic violence offense described in this
174     Subsection (2) within 10 years after the individual is convicted of a qualifying domestic
175     violence offense that is not a criminal mischief offense.]
176          (B) within five years after the day on which the individual is convicted of a criminal
177     mischief offense.
178          [(3) An individual who is convicted of a domestic violence offense is:]
179          [(a) guilty of a class B misdemeanor if:]
180          [(i) the domestic violence offense described in this Subsection (3) is designated by law
181     as a class C misdemeanor; and]
182          [(ii) (A) the domestic violence offense described in this Subsection (3) is committed

183     within five years after the individual is convicted of a criminal mischief offense; or]
184          [(B) the individual is convicted of the domestic violence offense described in]
185          [this Subsection (3) within five years after the individual is convicted of a criminal
186     mischief offense;]
187          [(b) guilty of a class A misdemeanor if:]
188          [(i) the domestic violence offense described in this Subsection (3) is designated by law
189     as a class B misdemeanor; and]
190          [(ii) (A) the domestic violence offense described in this Subsection (3) is committed
191     within five years after the individual is convicted of a criminal mischief offense; or]
192          [(B) the individual is convicted of the domestic violence offense described in]
193          [this Subsection (3) within five years after the individual is convicted of a criminal
194     mischief offense; or]
195          [(c) guilty of a third degree felony if:]
196          [(i) the domestic violence offense described in this Subsection (3) is designated by law
197     as a class A misdemeanor; and]
198          [(ii) (A) the domestic violence offense described in this Subsection (3) is committed
199     within five years after the individual is convicted of a criminal mischief offense; or]
200          [(B) the individual is convicted of the domestic violence offense described in this
201     Subsection (3) within five years after the individual is convicted of a criminal mischief
202     offense.]
203          Section 3. Section 77-36-1.2 is amended to read:
204          77-36-1.2. Acceptance of a plea of guilty or no contest to domestic violence --
205     Restrictions.
206          [(1) For purposes of this section, "qualifying domestic violence offense" means:]
207          [(a) a domestic violence offense in Utah; or]
208          [(b) an offense in any other state, or in any district, possession, or territory of the
209     United States, that would be a domestic violence offense under Utah law.]
210          [(2) For purposes of this section and Section 77-36-1.1, a plea of guilty or no contest to
211     any domestic violence offense in Utah, which plea is held in abeyance under Title 77, Chapter
212     2a, Pleas in Abeyance, is the equivalent of a conviction, even if the charge has been
213     subsequently reduced or dismissed in accordance with the plea in abeyance agreement.]

214          [(3) (a)] (1) Before agreeing to a plea of guilty or no contest, the prosecutor shall
215     examine the criminal history of the defendant.
216          [(b)] (2) An entry of a plea of guilty or no contest to a domestic violence offense is
217     invalid unless the prosecutor agrees to the plea:
218          [(i)] (a) in open court;
219          [(ii)] (b) in writing; or
220          [(iii)] (c) by another means of communication that the court finds adequate to record
221     the prosecutor's agreement.