This document includes Senate 3rd Reading Floor Amendments incorporated into the bill on Thu, Mar 3, 2022 at 6:48 PM by kpoll.
Representative Brian S. King proposes the following substitute bill:




Chief Sponsor: Brian S. King

Senate Sponsor: Curtis S. Bramble


8     General Description:
9          This bill concerns the preservation of biological evidence obtained in connection with
10     the investigation or prosecution of a violent felony offense.
11     Highlighted Provisions:
12          This bill:
13          ▸     creates definitions;
14          ▸     amends asset forfeiture provisions to integrate biological evidence retention
15     requirements;
16          ▸     requires the preservation of biological evidence obtained in connection with the
17     investigation or prosecution of a violent felony offense for specific time periods;
18          ▸     provides procedures for the destruction of certain types of biological evidence;
19          ▸     establishes procedures and remedies for preservation noncompliance; and
20          ▸     makes technical and conforming changes.
21     Money Appropriated in this Bill:
22          None
23     Other Special Clauses:
24          None
25     Utah Code Sections Affected:

26     AMENDS:
27          24-2-104, as enacted by Laws of Utah 2021, Chapter 230
28          24-2-106, as renumbered and amended by Laws of Utah 2021, Chapter 230
29          24-2-107, as enacted by Laws of Utah 2021, Chapter 230
30          24-2-108, as enacted by Laws of Utah 2021, Chapter 230
31          24-3-101.5, as enacted by Laws of Utah 2021, Chapter 230
32          24-4-103.3, as enacted by Laws of Utah 2021, Chapter 230
33          24-4-103.5, as enacted by Laws of Utah 2021, Chapter 230
34          78B-9-104, as last amended by Laws of Utah 2021, Chapter 46
35          78B-9-105, as last amended by Laws of Utah 2017, Chapter 447
36          78B-9-107, as last amended by Laws of Utah 2021, Chapter 46
37          78B-9-108, as last amended by Laws of Utah 2021, Second Special Session, Chapter 4
38          78B-9-202, as last amended by Laws of Utah 2011, Chapter 165
39     ENACTS:
40          53-20-101, Utah Code Annotated 1953
41          53-20-102, Utah Code Annotated 1953
42          53-20-103, Utah Code Annotated 1953
43          53-20-104, Utah Code Annotated 1953

45     Be it enacted by the Legislature of the state of Utah:
46          Section 1. Section 24-2-104 is amended to read:
47          24-2-104. Custody of seized property and contraband.
48          (1) If a peace officer seizes property or contraband under Section 24-2-102, the
49     property and contraband:
50          (a) is not recoverable by replevin; and
51          (b) is considered in the custody of the agency that employed the peace officer.
52          (2) An agency with custody of seized property shall:
53          (a) hold the property in safe custody until the property is released or disposed of in
54     accordance with:
55          (i) this title; and
56          (ii) Title 53, Chapter 20, Forensic Biological Evidence Preservation; and

57          (b) maintain a record of the property, including:
58          (i) a detailed inventory of all property seized;
59          (ii) the name of the person from whom the property was seized; and
60          (iii) the agency's case number.
61          (3) [An] In accordance with Title 53, Chapter 20, Forensic Biological Evidence
62     Preservation, an agency may process property or contraband that is seized by a peace officer for
63     evidentiary or investigative purposes, including sampling or other preservation procedure,
64     before disposal or destruction.
65          (4) (a) Except as provided in Subsection (4)(b), no later than 30 days after the day on
66     which a peace officer seizes property in the form of cash or other readily negotiable
67     instruments under Section 24-2-102, an agency shall deposit the property into a separate,
68     restricted, interest-bearing account maintained by the agency solely for the purpose of
69     managing and protecting the property from commingling, loss, or devaluation.
70          (b) A prosecuting attorney may authorize one or more written extensions of the 30-day
71     period under Subsection (4)(a) if the property needs to maintain the form in which the property
72     was seized for evidentiary purposes or other good cause.
73          (c) An agency shall:
74          (i) have written policies for the identification, tracking, management, and safekeeping
75     of seized property; and
76          (ii) shall have a written policy that prohibits the transfer, sale, or auction of seized
77     property to an employee of the agency.
78          Section 2. Section 24-2-106 is amended to read:
79          24-2-106. Retention of property.
80          (1) If seized property is admitted into evidence during a court proceeding, the clerk of
81     the court shall:
82          (a) retain the property; or
83          (b) return the property to the custody of the agency.
84          (2) [The] Subject to Title 53, Chapter 20, Forensic Biological Evidence Preservation,
85     the agency shall retain seized or forfeited property:
86          (a) at the discretion of the prosecuting attorney; or
87          (b) until all direct appeals and retrials are final.

88          (3) If the prosecuting attorney decides to retain control over the seized or forfeited
89     property under Subsection (2)(a) in anticipation of possible collateral attacks upon the
90     judgment or for use in a potential prosecution, the prosecuting attorney may decline to
91     authorize the disposal of the property.
92          Section 3. Section 24-2-107 is amended to read:
93          24-2-107. Release of seized property to a claimant -- Release by surety bond or
94     cash - Release for hardship.
95          (1) (a) [An] Subject to Title 53, Chapter 20, Forensic Biological Evidence
96     Preservation, an agency with custody of seized property or the prosecuting attorney may release
97     the property to a claimant if the agency or the prosecuting attorney:
98          (i) determines that retention of the property is unnecessary; or
99          (ii) seeks to return the property to the claimant because the agency or prosecuting
100     attorney determines that the claimant is an innocent owner.
101          (b) An agency with custody of the seized property, or the prosecuting attorney, shall
102     release the property to a claimant if:
103          (i) the claimant posts a surety bond or cash with the court in accordance with
104     Subsection (2);
105          (ii) the court orders the release of property for hardship purposes under Subsection (3);
106          (iii) a claimant establishes that the claimant is an innocent owner under Section
107     24-2-107; or
108          (iv) the court orders property retained as evidence to be released to a rightful owner
109     under Section 24-3-104.
110          (2) (a) Except as provided in Subsection (2)(b), a claimant may obtain release of seized
111     property by posting a surety bond or cash with the court that is in an amount equal to the
112     current fair market value of the property as determined by the court or a stipulation by the
113     parties.
114          (b) A court may refuse to order the release under Subsection (2)(a) of:
115          (i) the property if:
116          (A) the bond tendered is inadequate;
117          (B) the property is retained as evidence or is subject to retention under Title 53,
118     Chapter 20, Forensic Biological Evidence Preservation; or

119          (C) the property is particularly altered or designed for use in the commission of the
120     offense subjecting the property to forfeiture; or
121          (ii) contraband.
122          (c) If a surety bond or cash is posted and the court later determines that the property is
123     forfeited, the court shall order the forfeiture of the surety bond or cash in lieu of the property.
124          (3) A claimant is entitled to the immediate release of seized property for which the
125     agency has filed a notice of intent to forfeit under Section 24-4-103 if:
126          (a) the claimant had a possessory interest in the property at the time of seizure;
127          (b) continued possession by the agency pending a forfeiture proceeding will cause
128     substantial hardship to the claimant, including:
129          (i) preventing the functioning of a legitimate business;
130          (ii) preventing any individual from working;
131          (iii) preventing any child from attending elementary or secondary school;
132          (iv) preventing or hindering an individual from receiving necessary medical care;
133          (v) preventing the care of a dependent child or adult who is elderly or disabled;
134          (vi) leaving an individual homeless; or
135          (vii) any other condition that the court determines causes a substantial hardship;
136          (c) the hardship from the continued possession of the property by the agency outweighs
137     the risk that the property will be destroyed, damaged, lost, concealed, or transferred if the
138     property is returned to the claimant during the pendency of the proceeding; and
139          (d) the determination of substantial hardship under this Subsection (3) is based upon
140     the property's use before the seizure.
141          (4) A claimant may file a motion or petition for hardship release under Subsection (3):
142          (a) in the court in which forfeiture proceedings have commenced; or
143          (b) in a district court where there is venue if a forfeiture proceeding has not yet
144     commenced.
145          (5) The motion or petition for hardship release shall be served upon the agency with
146     custody of the property within five days after the day on which the motion or petition is filed.
147          (6) The court shall:
148          (a) schedule a hearing on the motion or petition within 14 days after the day on which
149     the motion or petition is filed; and

150          (b) render a decision on a motion or petition for hardship filed under this section no
151     later than 20 days after the day of the hearing, unless this period is extended by the agreement
152     of both parties or by the court for good cause shown.
153          (7) (a) If the claimant demonstrates substantial hardship under Subsection (3), the court
154     shall order the property immediately released to the claimant pending completion of any
155     forfeiture proceeding.
156          (b) The court may place conditions on release of the property as the court finds
157     necessary and appropriate to preserve the availability of the property or the property's
158     equivalent for forfeiture.
159          (8) The hardship release under this section does not apply to:
160          (a) contraband; or
161          (b) property that is:
162          (i) subject to retention under Title 53, Chapter 20, Forensic Biological Evidence
163     Preservation; or
164          (ii) likely to be used to commit additional offenses if returned to the claimant.
165          Section 4. Section 24-2-108 is amended to read:
166          24-2-108. Innocent owners.
167          (1) (a) [A] Subject to Title 53, Chapter 20, Forensic Biological Evidence Preservation,
168     a claimant alleged to be an innocent owner may recover possession of seized property by:
169          (i) submitting a written request with the seizing agency before the later of:
170          (A) the commencement of a civil asset forfeiture proceeding; or
171          (B) 30 days after the day on which the property was seized; and
172          (ii) providing the seizing agency with:
173          (A) evidence that establishes proof of ownership; and
174          (B) a brief description of the date, time, and place that the claimant mislaid or
175     relinquished possession of the seized property, or any evidence that the claimant is an innocent
176     owner.
177          (b) If a seizing agency receives a claim under Subsection (1)(a), the seizing agency
178     shall issue a written response to the claimant within 30 days after the day on which the seizing
179     agency receives the claim.
180          (c) A response under Subsection (1)(b) from the seizing agency shall indicate whether

181     the claim has been granted, denied on the merits, or denied for failure to provide the
182     information required by Subsection (1)(a)(ii).
183          (d) (i) If a seizing agency denies a claim for failure to provide the information required
184     by Subsection (1)(a)(ii), the claimant has 15 days after the day on which the claim is denied to
185     submit additional information.
186          (ii) If a prosecuting attorney has not filed a civil action seeking to forfeit the property
187     and a seizing agency has denied a claim for failure to provide the information required by
188     Subsection (1)(a)(ii), the prosecuting attorney may not commence a civil action until:
189          (A) the claimant has submitted information under Subsection (1)(d)(i); or
190          (B) the deadline for the claimant to submit information under Subsection (1)(d)(i) has
191     passed.
192          (e) If a seizing agency fails to issue a written response within 30 days after the day on
193     which the seizing agency receives the response, the seizing agency shall return the property.
194          (2) If a claim under Subsection (1)(a) is granted, or the property is returned because the
195     seizing agency fails to respond within 30 days, a claimant may not receive any expenses, costs,
196     or attorney fees for the returned property.
197          (3) A claimant may collect reasonable attorney fees and court costs if:
198          (a) a claimant filed a claim under Subsection (1)(a);
199          (b) the seizing agency denies the claim on the merits; and
200          (c) a court determines that the claimant is an innocent owner in a civil asset forfeiture
201     proceeding.
202          (4) If a court grants reasonable attorney fees and court costs, the amount of the attorney
203     fees begins to accrue from the day on which the seizing agency denied the claim.
204          (5) If the court grants reasonable attorney fees and court costs under Subsection (3), the
205     attorney fees and court costs are not subject to the 50% cap under Subsection 24-4-110(2).
206          (6) A communication between parties regarding a claim submitted under Subsection
207     (3) and any evidence provided to the parties in connection with a claim is subject to the Utah
208     Rules of Evidence, Rules 408 and 410.
209          (7) An agency and the prosecuting attorney may not forfeit the seized property of an
210     innocent owner.
211          Section 5. Section 24-3-101.5 is amended to read:

212          24-3-101.5. Application of this chapter.
213          The provisions of this chapter do not apply to property:
214          (1) that is subject to the retention requirements under Title 53, Chapter 20, Forensic
215     Biological Evidence Preservation; or
216          (2) for which an agency has filed a notice of intent to seek forfeiture under Section
217     23-4-103.
218          Section 6. Section 24-4-103.3 is amended to read:
219          24-4-103.3. Sale of seized property.
220          (1) (a) Subject to Subsection (2) and Title 53, Chapter 20, Forensic Biological
221     Evidence Preservation, the court may order seized property, for which a forfeiture proceeding
222     is pending, to:
223          (i) be sold, leased, rented, or operated to satisfy a specified interest of any claimant; or
224          (ii) preserve the interests of any party on motion of that party.
225          (b) The court may enter an order under Subsection (1)(a) after:
226          (i) written notice to any person known to have an interest in the property has been
227     given; and
228          (ii) an opportunity for a hearing for any person known to have an interest in the
229     property has occurred.
230          (2) (a) A court may order a sale of property under Subsection (1) when:
231          (i) the property is liable to perish, waste, or be significantly reduced in value; or
232          (ii) the expenses of maintaining the property are disproportionate to the property's
233     value.
234          (b) A third party designated by the court shall:
235          (i) dispose of the property by a commercially reasonable public sale; and
236          (ii) distribute the proceeds in the following order of priority:
237          (A) first, for the payment of reasonable expenses incurred in connection with the sale;
238          (B) second, for the satisfaction of an interest, including an interest of an interest holder,
239     in the order of an interest holder's priority as determined by Title 70A, Uniform Commercial
240     Code; and
241          (C) third, any balance of the proceeds shall be preserved in the actual or constructive
242     custody of the court, in an interest-bearing account, subject to further proceedings under this

243     chapter.
244          Section 7. Section 24-4-103.5 is amended to read:
245          24-4-103.5. Mandatory return of seized property.
246          (1) [An] Subject to Title 53, Chapter 20, Forensic Biological Evidence Preservation, an
247     agency shall promptly return property seized under this title, and the prosecuting attorney may
248     take no further action to forfeit the property, unless within 75 days after the day on which the
249     property is seized:
250          (a) the prosecuting attorney:
251          (i) files a criminal indictment or information under Subsection 24-4-105(3);
252          (ii) files a petition to transfer the property to another agency in accordance with Section
253     24-2-105; or
254          (iii) files a civil forfeiture complaint under Section 24-4-104; or
255          (b) the prosecuting attorney or a federal prosecutor obtains a restraining order under
256     Subsection 24-4-105(4).
257          (2) (a) The prosecuting attorney may file a petition to extend the deadline under
258     Subsection (1) by 21 days.
259          (b) If a prosecuting attorney files a petition under Subsection (2)(a), and the
260     prosecuting attorney provides good cause for extending the deadline, a court shall grant the
261     petition.
262          (c) The prosecuting attorney may not file more than one petition under this Subsection
263     (2).
264          (3) If a prosecuting attorney is unable to file a civil forfeiture complaint under
265     Subsection (1)(a)(iii) because a claimant has filed a claim under Section 24-2-108 and the
266     claimant has an extension to provide additional information on the claim under Subsection
267     24-2-108(1)(d), the deadline under Subsection (1) may be extended by 15 days.
268          Section 8. Section 53-20-101 is enacted to read:

270          53-20-101. Definitions.
271          As used in this chapter:
272          (1) (a) "Biological evidence" means an item that contains blood, semen, hair, saliva,
273     epithelial cells, latent fingerprint evidence that may contain biological material suitable for

274     DNA testing, or other identifiable human biological material that:
275          (i) is collected as part of an investigation or prosecution of a violent felony offense;
276     and
277          (ii) may reasonably be used to incriminate or exculpate a person for the violent felony
278     offense.
279          (b) "Biological evidence" includes:
280          (i) material that is catalogued separately, including:
281          (A) on a slide or swab; or
282          (B) inside a test tube, if the evidentiary sample that previously was inside the test tube
283     has been consumed by testing;
284          (ii) material that is present on other evidence, including clothing, a ligature, bedding, a
285     drinking cup, a cigarette, Ŝ→ [
a vehicle,] ←Ŝ or a weapon, from which a DNA profile may be
285a     obtained;
286          (iii) the contents of a sexual assault examination kit; and
287          (iv) material described in this Subsection (1) that is in the custody of an evidence
288     collecting or retaining entity on May 4, 2022.
289          (2) "Continuous chain of custody" means:
290          (a) for a law enforcement agency or a court, that legal standards regarding a continuous
291     chain of custody are maintained; and
292          (b) for an entity that is not a law enforcement agency or a court, that the entity
293     maintains a record in accordance with legal standards required of the entity.
294          (3) "Court" means a municipal, county, or state court.
295          (4) "DNA" means deoxyribonucleic acid.
296          (5) "DNA profile" means a unique identifier of an individual derived from DNA.
297          (6) (a) "Evidence collecting or retaining entity" means an entity within the state that
298     collects, stores, or retrieves biological evidence.
299          (b) "Evidence collecting or retaining entity" includes:
300          (i) a medical or forensic entity;
301          (ii) a law enforcement agency;
302          (iii) a court; and
303          (iv) an official, employee, or agent of an entity or agency described in this Subsection
304     (6).

305          (7) "In custody" means an individual who:
306          (a) is incarcerated, civilly committed, on parole, or on probation; or
307          (b) is required to register under Title 77, Chapter 41, Sex and Kidnap Offender
308     Registry.
309          (8) "Law enforcement agency" means:
310          (a) a municipal, county, state institution of higher education, or state police force or
311     department;
312          (b) a sheriff's office; or
313          (c) a municipal, county, or state prosecuting authority.
314          (9) "Medical or forensic entity" means a private or public hospital, medical facility, or
315     other entity that secures biological evidence or conducts forensic examinations related to
316     criminal investigations.
317          (10) "Physical evidence" includes evidence that:
318          (a) is related to:
319          (i) an investigation;
320          (ii) an arrest; or
321          (iii) a prosecution that resulted in a judgment of conviction; and
322          (b) is in the actual or constructive possession of a law enforcement agency or a court or
323     an agent of a law enforcement agency or a court.
324          (11) "Violent felony" means the same as that term is defined in Section 76-3-203.5.
325          Section 9. Section 53-20-102 is enacted to read:
326          53-20-102. Preservation of evidence -- Procedures -- Inventory request.
327          (1) Except as provided in Section 53-20-103, an evidence collecting or retaining entity
328     shall preserve biological evidence:
329          (a) for the longer of:
330          (i) the length of the statute of limitations for the violent felony offense if:
331          (A) no charges are filed for the violent felony offense; or
332          (B) the violent felony offense remains unsolved;
333          (ii) the length of time that the individual convicted of the violent felony offense or any
334     lesser included violent offense remains in custody; or
335          (iii) the length of time that a co-defendant remains in custody;

336          (b) in an amount and manner sufficient to:
337          (i) develop a DNA profile; and
338          (ii) if practicable, allow for independent testing of the biological evidence by a
339     defendant; and
340          (c) subject to a continuous chain of custody.
341          (2) (a) Upon request by a defendant under Title 63G, Chapter 2, Government Records
342     Access and Management Act, the evidence collecting or retaining entity shall prepare an
343     inventory of the biological evidence preserved in connection with the defendant's criminal case.
344          (b) If the evidence collecting or retaining entity cannot locate biological evidence
345     requested under Subsection (2)(a), the custodian for the entity shall provide a sworn affidavit to
346     the defendant that:
347          (i) describes the efforts taken to locate the biological evidence; and
348          (ii) affirms that the biological evidence could not be located.
349          (3) The evidence collecting or retaining entity may dispose of biological evidence
350     before the day on which the period described in Subsection (1)(a) expires if:
351          (a) no other provision of federal or state law requires the evidence collecting or
352     retaining entity to preserve the biological evidence;
353          (b) the evidence collecting or retaining entity sends notice in accordance with
354     Subsection (4); and
355          (c) an individual notified under Subsection (4)(a) does not within 180 days after the
356     day on which the evidence collecting or retaining entity receives proof of delivery under
357     Subsection (4):
358          (i) file a motion for testing of the biological evidence under Section 78B-9-301; or
359          (ii) submit a written request under Subsection (4)(b)(ii).
360          (4) If the evidence collecting or retaining entity intends to dispose of the biological
361     evidence before the day on which the period described in Subsection (1)(a) expires, the
362     evidence collecting or retaining entity shall send a notice of intent to dispose of the biological
363     evidence that:
364          (a) is sent by certified mail, return receipt requested, or a delivery service that provides
365     proof of delivery, to:
366          (i) an individual who remains in custody based on a criminal conviction related to the

367     biological evidence;
368          (ii) the private attorney or public defender of record for each individual described in
369     Subsection (4)(a)(i);
370          (iii) if applicable, the prosecuting agency responsible for the prosecution of each
371     individual described in Subsection (4)(a)(i); and
372          (iv) the Utah Attorney General; and
373          (b) explains that the party receiving the notice may:
374          (i) file a motion for testing of biological evidence under Section 78B-9-301; or
375          (ii) submit a written request that the evidence collecting or retaining entity retain the
376     biological evidence.
377          (5) (a) Subject to Subsections (5)(b) and (c), if the evidence collecting or retaining
378     entity receives a written request to retain the biological evidence under Subsection (4)(b)(ii),
379     the evidence collecting or retaining entity shall retain the biological evidence while the
380     defendant remains in custody.
381          (b) Subject to Subsection (5)(c), the evidence collecting or retaining entity is not
382     required to preserve physical evidence that may contain biological evidence if the physical
383     evidence's size, bulk, or physical character renders retention impracticable.
384          (c) If the evidence collecting or retaining entity determines that retention is
385     impracticable, before returning or disposing of the physical evidence, the evidence collecting or
386     retaining entity shall:
387          (i) remove the portions of the physical evidence likely to contain biological evidence
388     related to the violent felony offense; and
389          (ii) preserve the removed biological evidence in a quantity sufficient to permit future
390     DNA testing.
391          (6) To comply with the preservation requirements described in this section, a law
392     enforcement agency or a court may:
393          (a) retain the biological evidence; or
394          (b) if a continuous chain of custody can be maintained, return the biological evidence
395     to the custody of the other law enforcement agency that originally provided the biological
396     evidence to the law enforcement agency.
397          Section 10. Section 53-20-103 is enacted to read:

398          53-20-103. Exceptions.
399          (1) As used in this section, "offense concerning driving under the influence" means:
400          (a) Section 41-6a-502;
401          (b) Section 41-6a-502.5;
402          (c) Section 41-6a-517;
403          (d) Section 41-6a-530;
404          (e) Subsection 58-37-8(2)(g);
405          (f) Section 76-5-207; and
406          (g) a local ordinance similar to the offenses described in this Subsection (1).
407          (2) Section 53-20-102 does not apply to biological evidence obtained during an
408     investigation or prosecution for an offense concerning driving under the influence solely for
409     toxicology purposes.
410          Section 11. Section 53-20-104 is enacted to read:
411          53-20-104. Remedies for failure to preserve evidence.
412          (1) (a) Except as provided in Subsection (1)(b) and (2), if a court finds that biological
413     evidence that reasonably could have been found to be exculpatory in a defendant's criminal
414     case was not preserved in accordance with this chapter, the court may impose sanctions and
415     remedies at the court's discretion, including:
416          (i) the grant of a new trial;
417          (ii) an instruction to the jury that evidence was not preserved as required by law;
418          (iii) the reduction of the sentence;
419          (iv) the dismissal of the criminal charge;
420          (v) the vacation of the conviction; or
421          (vi) the entry of a finding that because the evidence was not preserved in accordance
422     with this chapter, a presumption exists that the evidence would have been exculpatory to the
423     defendant.
424          (b) The provisions in Subsection (1)(a) apply only if:
425          (i) a defendant's appeal has not concluded;
426          (ii) a defendant's time for appeal has not expired; or
427          (iii) a defendant has received a new trial in accordance with Subsection (2)(b).
428          (2) (a) A defendant shall seek relief under Title 78B, Chapter 9, Postconviction

429     Remedies Act, if:
430          (i) the defendant alleges that the biological evidence that is the basis for the defendant's
431     claim was not preserved in accordance with this chapter; and
432          (ii) (A) the defendant's appeal has concluded; or
433          (B) the time for the defendant's appeal has expired.
434          (b) If a defendant obtains relief under Title 78B, Chapter 9, Postconviction Remedies
435     Act, the provisions in Subsection (1) apply to the defendant's new trial.
436          Section 12. Section 78B-9-104 is amended to read:
437          78B-9-104. Grounds for relief -- Retroactivity of rule.
438          (1) Unless precluded by Section 78B-9-106 or 78B-9-107, an individual who has been
439     convicted and sentenced for a criminal offense may file an action in the district court of
440     original jurisdiction for postconviction relief to vacate or modify the conviction or sentence
441     upon the following grounds:
442          (a) the conviction was obtained or the sentence was imposed in violation of the United
443     States Constitution or Utah Constitution;
444          (b) the conviction was obtained or the sentence was imposed under a statute that is in
445     violation of the United States Constitution or Utah Constitution, or the conduct for which the
446     petitioner was prosecuted is constitutionally protected;
447          (c) the sentence was imposed or probation was revoked in violation of the controlling
448     statutory provisions;
449          (d) the petitioner had ineffective assistance of counsel in violation of the United States
450     Constitution or Utah Constitution;
451          (e) newly discovered material evidence exists that requires the court to vacate the
452     conviction or sentence, because:
453          (i) neither the petitioner nor petitioner's counsel knew of the evidence at the time of
454     trial or sentencing or in time to include the evidence in any previously filed post-trial motion or
455     postconviction proceeding, and the evidence could not have been discovered through the
456     exercise of reasonable diligence;
457          (ii) the material evidence is not merely cumulative of evidence that was known;
458          (iii) the material evidence is not merely impeachment evidence; and
459          (iv) viewed with all the other evidence, the newly discovered material evidence

460     demonstrates that no reasonable trier of fact could have found the petitioner guilty of the
461     offense or subject to the sentence received;
462          (f) the petitioner can prove that:
463          (i) biological evidence, as that term is defined in Section 53-20-101, relevant to the
464     petitioner's conviction was not preserved in accordance with Title 53, Chapter 20, Forensic
465     Biological Evidence Preservation;
466          (ii) (A) the biological evidence described in Subsection (1)(f)(i) was not tested
467     previously; or
468          (B) if the biological evidence described in Subsection (1)(f)(i) was tested previously,
469     there is a material change in circumstance, including a scientific or technological advance, that
470     would make it plausible that a test of the biological evidence described in Subsection (1)(f)(i)
471     would produce a favorable test result for the petitioner; and
472          (iii) a favorable result described in Subsection (1)(f)(ii), which is presumed for
473     purposes of the petitioner's action under this section, when viewed with all the other evidence,
474     demonstrates a reasonable probability of a more favorable outcome at trial for the petitioner;
475          [(f)] (g) the petitioner can prove entitlement to relief under a rule announced by the
476     United States Supreme Court, the Utah Supreme Court, or the Utah Court of Appeals after
477     conviction and sentence became final on direct appeal, and that:
478          (i) the rule was dictated by precedent existing at the time the petitioner's conviction or
479     sentence became final; or
480          (ii) the rule decriminalizes the conduct that comprises the elements of the crime for
481     which the petitioner was convicted; or
482          [(g)] (h) the petitioner committed any of the following offenses while subject to force,
483     fraud, or coercion, as defined in Section 76-5-308:
484          (i) Section 58-37-8, possession of a controlled substance;
485          (ii) Section 76-10-1304, aiding prostitution;
486          (iii) Section 76-6-206, criminal trespass;
487          (iv) Section 76-6-413, theft;
488          (v) Section 76-6-502, possession of forged writing or device for writing;
489          (vi) Sections 76-6-602 through 76-6-608, retail theft;
490          (vii) Subsection 76-6-1105(2)(a)(i)(A), unlawful possession of another's identification

491     document;
492          (viii) Section 76-9-702, lewdness;
493          (ix) Section 76-10-1302, prostitution; or
494          (x) Section 76-10-1313, sexual solicitation.
495          (2) The court may not grant relief from a conviction or sentence unless in light of the
496     facts proved in the postconviction proceeding, viewed with the evidence and facts introduced at
497     trial or during sentencing:
498          (a) the petitioner establishes that there would be a reasonable likelihood of a more
499     favorable outcome; or
500          (b) if the petitioner challenges the conviction or the sentence on grounds that the
501     prosecutor knowingly failed to correct false testimony at trial or at sentencing, the petitioner
502     establishes that the false testimony, in any reasonable likelihood, could have affected the
503     judgment of the fact finder.
504          (3) (a) The court may not grant relief from a conviction based on a claim that the
505     petitioner is innocent of the crime for which convicted except as provided in Part 3,
506     Postconviction Testing of DNA, or Part 4, Postconviction Determination of Factual Innocence.
507          (b) Claims under Part 3, Postconviction Testing of DNA, or Part 4, Postconviction
508     Determination of Factual Innocence, of this chapter may not be filed as part of a petition under
509     this part, but shall be filed separately and in conformity with the provisions of Part 3,
510     Postconviction Testing of DNA, or Part 4, Postconviction Determination of Factual Innocence.
511          Section 13. Section 78B-9-105 is amended to read:
512          78B-9-105. Burden of proof.
513          (1) (a) Except for claims raised under Subsection 78B-9-104(1)[(g)](h), the petitioner
514     has the burden of pleading and proving by a preponderance of the evidence the facts necessary
515     to entitle the petitioner to relief.
516          (b) For claims raised under Subsection 78B-9-104(1)[(g)](h), the petitioner has the
517     burden of pleading and proving by clear and convincing evidence the facts necessary to entitle
518     the petitioner to relief.
519          (c) The court may not grant relief without determining that the petitioner is entitled to
520     relief under the provisions of this chapter and in light of the entire record, including the record
521     from the criminal case under review.

522          (2) The respondent has the burden of pleading any ground of preclusion under Section
523     78B-9-106, but once a ground has been pled, the petitioner has the burden to disprove its
524     existence by a preponderance of the evidence.
525          Section 14. Section 78B-9-107 is amended to read:
526          78B-9-107. Statute of limitations for postconviction relief.
527          (1) A petitioner is entitled to relief only if the petition is filed within one year after the
528     day on which the cause of action has accrued.
529          (2) For purposes of this section, the cause of action accrues on the later of the
530     following dates:
531          (a) the last day for filing an appeal from the entry of the final judgment of conviction, if
532     no appeal is taken;
533          (b) the entry of the decision of the appellate court that has jurisdiction over the case, if
534     an appeal is taken;
535          (c) the last day for filing a petition for writ of certiorari in the Utah Supreme Court or
536     the United States Supreme Court, if no petition for writ of certiorari is filed;
537          (d) the entry of the denial of the petition for writ of certiorari or the entry of the
538     decision on the petition for certiorari review, if a petition for writ of certiorari is filed;
539          (e) the date on which petitioner knew or should have known, in the exercise of
540     reasonable diligence, of evidentiary facts on which the petition is based; or
541          (f) the date on which the new rule described in Subsection 78B-9-104(1)[(f)](g) is
542     established.
543          (3) (a) The limitations period is tolled for any period during which the petitioner was
544     prevented from filing a petition due to state action in violation of the United States
545     Constitution, due to physical or mental incapacity, or for claims arising under Subsection
546     78B-9-104(1)[(g)](h), due to force, fraud, or coercion as defined in Section 76-5-308.
547          (b) The petitioner has the burden of proving by a preponderance of the evidence that
548     the petitioner is entitled to relief under this Subsection (3).
549          (4) The statute of limitations is tolled during the pendency of the outcome of a petition
550     asserting:
551          (a) exoneration through DNA testing under Section 78B-9-303; or
552          (b) factual innocence under Section 78B-9-402.

553          (5) Sections 77-19-8, 78B-2-104, and 78B-2-111 do not extend the limitations period
554     established in this section.
555          (6) This section does not apply to a petition filed under Part 3, Postconviction Testing
556     of DNA, or Part 4, Postconviction Determination of Factual Innocence.
557          Section 15. Section 78B-9-108 is amended to read:
558          78B-9-108. Effect of granting relief -- Notice.
559          (1) If the court grants the petitioner's request for relief, except requests for relief under
560     Subsection 78B-9-104(1)[(g)](h), the court shall either:
561          (a) modify the original conviction or sentence; or
562          (b) vacate the original conviction or sentence and order a new trial or sentencing
563     proceeding as appropriate.
564          (2) If the court grants the petitioner's request for relief under Subsection
565     78B-9-104(1)[(g)](h), the court shall:
566          (a) vacate the original conviction and sentence; and
567          (b) order the petitioner's records expunged pursuant to Section 77-40-108.5.
568          (3) (a) If the petitioner is serving a felony sentence, the order shall be stayed for five
569     days. Within the stay period, the respondent shall give written notice to the court and the
570     petitioner that the respondent will pursue a new trial or sentencing proceedings, appeal the
571     order, or take no action.
572          (b) If the respondent fails to provide notice or gives notice at any time during the stay
573     period that it intends to take no action, the court shall lift the stay and deliver the order to the
574     custodian of the petitioner.
575          (c) If the respondent gives notice of intent to appeal the court's decision, the stay
576     provided for by Subsection (3)(a) shall remain in effect until the appeal concludes, including
577     any petitions for rehearing or for discretionary review by a higher court. The court may lift the
578     stay if the petitioner can make the showing required for a certificate of probable cause under
579     Section 77-20-302 and Utah Rules of Criminal Procedure, Rule 27.
580          (d) If the respondent gives notice that it intends to retry or resentence the petitioner, the
581     trial court may order any supplementary orders as to arraignment, trial, sentencing, custody,
582     bail, discharge, or other matters that may be necessary.
583          Section 16. Section 78B-9-202 is amended to read:

584          78B-9-202. Appointment and payment of counsel in death penalty cases.
585          (1) A person who has been sentenced to death and whose conviction and sentence has
586     been affirmed on appeal shall be advised in open court, on the record, in a hearing scheduled
587     no less than 30 days prior to the signing of the death warrant, of the provisions of this chapter
588     allowing challenges to the conviction and death sentence and the appointment of counsel for
589     indigent petitioners.
590          (2) (a) If a petitioner requests the court to appoint counsel, the court shall determine
591     whether the petitioner is indigent and make findings on the record regarding the petitioner's
592     indigency. If the court finds that the petitioner is indigent, it shall, subject to the provisions of
593     Subsection (5), promptly appoint counsel who is qualified to represent petitioners in
594     postconviction death penalty cases as required by Rule 8 of the Utah Rules of Criminal
595     Procedure. Counsel who represented the petitioner at trial or on the direct appeal may not be
596     appointed to represent the petitioner under this section.
597          (b) A petitioner who wishes to reject the offer of counsel shall be advised on the record
598     by the court of the consequences of the rejection before the court may accept the rejection.
599          (3) Attorney fees and litigation expenses incurred in providing the representation
600     provided for in this section and that the court has determined are reasonable shall be paid from
601     state funds by the Division of Finance according to rules established pursuant to Title 63G,
602     Chapter 3, Utah Administrative Rulemaking Act.
603          (a) In determining whether the requested funds are reasonable, the court should
604     consider:
605          (i) the extent to which the petitioner requests funds to investigate and develop evidence
606     and legal arguments that duplicate the evidence presented and arguments raised in the criminal
607     proceeding; and
608          (ii) whether the petitioner has established that the requested funds are necessary to
609     develop evidence and legal arguments that are reasonably likely to support postconviction
610     relief.
611          (b) The court may authorize payment of attorney fees at a rate of $125 per hour up to a
612     maximum of $60,000. The court may exceed the maximum only upon a showing of good
613     cause as established in Subsections (3)(e) and (f).
614          (c) The court may authorize litigation expenses up to a maximum of $20,000. The

615     court may exceed the maximum only upon a showing of good cause as established in
616     Subsections (3)(e) and (f).
617          (d) The court may authorize the petitioner to apply ex parte for the funds permitted in
618     Subsections (3)(b) and (c) upon a motion to proceed ex parte and if the petitioner establishes
619     the need for confidentiality. The motion to proceed ex parte must be served on counsel
620     representing the state, and the court may not grant the motion without giving the state an
621     opportunity to respond.
622          (e) In determining whether good cause exists to exceed the maximum sums established
623     in Subsections (3)(b) and (c), the court shall consider:
624          (i) the extent to which the work done to date and the further work identified by the
625     petitioner duplicates work and investigation performed during the criminal case under review;
626     and
627          (ii) whether the petitioner has established that the work done to date and the further
628     work identified is reasonably likely to develop evidence or legal arguments that will support
629     postconviction relief.
630          (f) The court may permit payment in excess of the maximum amounts established in
631     Subsections (3)(b) and (c) only on the petitioner's motion, provided that:
632          (i) if the court has granted a motion to file ex parte applications under Subsection
633     (3)(d), the petitioner shall serve the motion to exceed the maximum amounts on an assistant
634     attorney general employed in a division other than the one in which the attorney is employed
635     who represents the state in the postconviction case; if the court has not granted a motion to file
636     ex parte applications, then the petitioner must serve the attorney representing the state in the
637     postconviction matter with the motion to exceed the maximum funds;
638          (ii) if the motion proceeds under Subsection (3)(f)(i), the designated assistant attorney
639     general may not disclose to the attorney representing the state in the postconviction matter any
640     material the petitioner provides in support of the motion except upon a determination by the
641     court that the material is not protected by or that the petitioner has waived the attorney client
642     privilege or work product doctrine; and
643          (iii) the court gives the state an opportunity to respond to the request for funds in
644     excess of the maximum amounts provided in Subsections (3)(b) and (c).
645          (4) Nothing in this chapter shall be construed as creating the right to the effective

646     assistance of postconviction counsel, and relief may not be granted on any claim that
647     postconviction counsel was ineffective.
648          (5) If within 60 days of the request for counsel the court cannot find counsel willing to
649     accept the appointment, the court shall notify the petitioner and the state's counsel in writing.
650     In that event, the petitioner may elect to proceed pro se by serving written notice of that
651     election on the court and state's counsel within 30 days of the court's notice that no counsel
652     could be found. If within 30 days of its notice to the petitioner the court receives no notice that
653     the petitioner elects to proceed pro se, the court shall dismiss any pending postconviction
654     actions and vacate any execution stays, and the state may initiate proceedings under Section
655     77-19-9 to issue an execution warrant.
656          (6) Subject to Subsection (2)(a) the court shall appoint counsel to represent the
657     petitioner for the first petition filed after the direct appeal. For all other petitions, counsel may
658     not be appointed at public expense for a petitioner, except to raise claims:
659          (a) based on newly discovered evidence as defined in Subsection 78B-9-104(1)(e)(i);
660     or
661          (b) based on Subsection 78B-9-104(1)[(f)](g) that could not have been raised in any
662     previously filed post trial motion or postconviction proceeding.