1     
EVIDENCE RETENTION AMENDMENTS

2     
2024 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Wayne A. Harper

5     
House Sponsor: Ken Ivory

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions related to the retention and disposal of evidence of an
10     offense.
11     Highlighted Provisions:
12          This bill:
13          ▸     clarifies the requirements for disposing of wildlife seized by the Division of
14     Wildlife Resources;
15          ▸     amends the time period for retaining evidence of a felony offense;
16          ▸     clarifies that the time period requirements do not require an agency to return or
17     dispose of evidence of a felony offense;
18          ▸     provides that an agency is not required to retain evidence of a felony offense in
19     certain circumstances;
20          ▸     provides the requirements for an agency seeking to no longer retain evidence of a
21     felony offense;
22          ▸     amends the time period for retaining biological evidence of a violent felony offense;
23          ▸     amends the notification requirements regarding the retention of biological evidence
24     of a violent felony offense; and
25          ▸     makes technical and conforming changes.
26     Money Appropriated in this Bill:
27          None
28     Other Special Clauses:
29          None
30     Utah Code Sections Affected:
31     AMENDS:
32          23A-5-201, as last amended by Laws of Utah 2023, Chapter 448 and renumbered and
33     amended by Laws of Utah 2023, Chapter 103
34          77-11a-204, as renumbered and amended by Laws of Utah 2023, Chapter 448
35          77-11a-205, as renumbered and amended by Laws of Utah 2023, Chapter 448
36          77-11a-301, as renumbered and amended by Laws of Utah 2023, Chapter 448
37          77-11a-302, as enacted by Laws of Utah 2023, Chapter 448
38          77-11a-303, as enacted by Laws of Utah 2023, Chapter 448
39          77-11a-305, as renumbered and amended by Laws of Utah 2023, Chapter 448
40          77-11c-103, as enacted by Laws of Utah 2023, Chapter 448
41          77-11c-202, as enacted by Laws of Utah 2023, Chapter 448
42          77-11c-203, as enacted by Laws of Utah 2023, Chapter 448
43          77-11c-301, as renumbered and amended by Laws of Utah 2023, Chapter 448
44          77-11c-401, as renumbered and amended by Laws of Utah 2023, Chapter 448
45     ENACTS:
46          77-11c-302, Utah Code Annotated 1953
47          77-11c-303, Utah Code Annotated 1953
48     

49     Be it enacted by the Legislature of the state of Utah:
50          Section 1. Section 23A-5-201 is amended to read:
51          23A-5-201. Enforcement authority of conservation officers -- Seizure and
52     disposition of property.
53          (1) A conservation officer shall enforce the provisions of this title in accordance with
54     the same procedures and requirements for a law enforcement officer of this state.
55          (2) (a) Except as provided in Subsection (2)(b), a conservation officer may seize
56     property or contraband in accordance with Title 77, Chapter 11a, Seizure of Property and
57     Contraband, and Title 77, Chapter 11b, Forfeiture of Seized Property.
58          (b) A conservation officer shall seize protected wildlife illegally taken or held.
59          (3) (a) If a conservation officer seizes wildlife as part of an investigation or prosecution
60     of an offense and the wildlife may reasonably be used to incriminate or exculpate a person for
61     the offense, the division is not required to retain the wildlife under Title 77, Chapter 11c,
62     Retention of Evidence.
63          (b) If the division does not retain wildlife under Subsection (3)(a), the division is
64     required to preserve sufficient evidence from the wildlife for use as evidence in the prosecution
65     of a person for the offense.
66          (4) (a) If a conservation officer seizes wildlife and the wildlife or parts of the wildlife
67     are perishable, the division may donate the wildlife or parts of the wildlife to be used for
68     charitable purposes.
69          (b) If wildlife or parts of the wildlife are perishable and are not fit to be donated for
70     charitable purposes under Subsection (4)(a), the division may dispose of the wildlife or parts of
71     the wildlife in a reasonable manner.
72          [(5) (a) The court may order the division to sell or dispose of protected wildlife that is
73     seized by a conservation officer if the division is permitted by law to sell or dispose of the
74     wildlife.]
75          (5) (a) If a defendant is convicted of the offense for which protected wildlife is seized
76     and the division is permitted by law to sell or dispose of the protected wildlife, the division
77     may sell or dispose of the protected wildlife or part of the wildlife.
78          (b) The division may not sell migratory wildfowl but the division shall donate the
79     migratory wildfowl to be used for charitable purposes.
80          (c) The division shall deposit the proceeds from the sale of protected wildlife into the
81     Wildlife Resources Account.
82          (6) If the division disposes of wildlife and the defendant is acquitted of the offense for
83     which the wildlife is seized or the entire case for the offense is dismissed, the court may order
84     the division to:
85          (a) provide the owner of the disposed wildlife with wildlife that is reasonably
86     equivalent in value to the disposed wildlife within 180 days after the day on which the court
87     enters the order; or
88          (b) if the division is unable to obtain wildlife that is reasonably equivalent in value to
89     the disposed wildlife, pay the owner of the disposed wildlife for the non-trophy value of the
90     disposed wildlife in accordance with Subsection 23A-5-312(2) within 180 days after the day on
91     which the court enters the order.
92          (7) (a) If a conservation officer seizes a vehicle under Section 77-11a-201, the division
93     shall store the seized vehicle in a public or private garage, state impound lot, or any other
94     secured storage facility.
95          (b) The division shall release a seized vehicle to the owner no later than 30 days after
96     the day on which the vehicle is seized, unless the vehicle was used for the unlawful taking or
97     possessing of wildlife by a person charged with a felony under this title.
98          (c) The owner of a seized vehicle is liable for the payment of any impound fee if:
99          (i) the owner used the vehicle for the unlawful taking or possessing of wildlife; and
100          (ii) the owner is convicted of an offense under this title.
101          (d) The owner of a seized vehicle is not liable for the payment of any impound fee or,
102     if the fees have been paid, is entitled to reimbursement of the fees paid, if:
103          (i) no charges are filed or all charges are dropped that involve the use of the vehicle for
104     the unlawful taking or possessing of wildlife;
105          (ii) the person charged with using the vehicle for the unlawful taking or possessing of
106     wildlife is found by a court to be not guilty; or
107          (iii) the owner did not consent to a use of the vehicle that violates this chapter.
108          Section 2. Section 77-11a-204 is amended to read:
109          77-11a-204. Custody of seized property and contraband.
110          (1) An agency with custody of seized property or contraband shall:
111          (a) hold the property or contraband in safe custody until the property or contraband is
112     [released] returned or disposed of in accordance with:
113          (i) this chapter; and
114          (ii) Chapter 11c, Retention of Evidence; and
115          (b) maintain a record of the property or contraband, including:
116          (i) a detailed inventory of all property or contraband seized;
117          (ii) the name of the person from which the property or contraband was seized; and
118          (iii) the agency's case number.
119          (2) (a) Except as provided in Subsection (2)(b), no later than 30 days after the day on
120     which a peace officer seizes property in the form of cash or other readily negotiable
121     instruments, an agency shall deposit the property into a separate, restricted, interest-bearing
122     account maintained by the agency solely for the purpose of managing and protecting the
123     property from commingling, loss, or devaluation.
124          (b) A prosecuting attorney may authorize one or more written extensions of the 30-day
125     period under Subsection (2)(a) if the property needs to maintain the form in which the property
126     was seized for evidentiary purposes or other good cause.
127          (3) An agency shall:
128          (a) have written policies for the identification, tracking, management, and safekeeping
129     of seized property and contraband; and
130          (b) shall have a written policy that prohibits the transfer, sale, or auction of seized
131     property and contraband to an employee of the agency.
132          Section 3. Section 77-11a-205 is amended to read:
133          77-11a-205. Transfer or release of seized property to another governmental entity
134     -- Requirements.
135          (1) Except as provided in Subsections (3)(a) through (c), upon the seizure of property
136     by a peace officer, the property is subject to the exclusive jurisdiction of a district court of this
137     state.
138          (2) Except as provided in Subsection (3), a peace officer, agency, or prosecuting
139     attorney may not directly or indirectly transfer or release seized property to a federal agency or
140     to a governmental entity not created or subject to the laws of this state.
141          (3) An agency or prosecuting attorney may transfer or release seized property to a
142     federal agency or to a governmental entity not created or subject to the laws of this state if:
143          (a) (i) the property is cash or another readily negotiable instrument; and
144          (ii) the property is evidence in, or subject to, a federal criminal indictment, a federal
145     criminal information, or a federal criminal complaint that is filed before the property is seized;
146          (b) (i) the property is not cash or another readily negotiable instrument; and
147          (ii) the property is evidence in, or subject to, a federal criminal indictment, a federal
148     criminal information, or a federal criminal complaint that is filed before the day on which the
149     agency with custody of the property is required to return the property if no criminal or civil
150     action is filed by the prosecuting attorney or a federal prosecutor in accordance with Section
151     77-11b-203;
152          (c) (i) the property was used in the commission of an offense in another state; and
153          (ii) an agency of that state requests the transfer of the property before the day on which
154     the agency with custody of the property is required to return the property if no criminal or civil
155     action is filed by the prosecuting attorney or a federal prosecutor in accordance with Section
156     77-11b-203; or
157          (d) a district court authorizes, in accordance with Subsection (5), the transfer or release
158     of the property to an agency of another state or a federal agency upon a petition by a
159     prosecuting attorney or a federal prosecutor.
160          (4) (a) A prosecuting attorney, or a federal prosecutor, may file a petition in the district
161     court for the transfer or release of seized property.
162          (b) If a prosecuting attorney, or a federal prosecutor, files a petition under Subsection
163     (4)(a), the petition shall include:
164          (i) a detailed description of the property seized;
165          (ii) the location where the property was seized;
166          (iii) the date the property was seized;
167          (iv) the case number assigned by the agency; and
168          (v) a declaration that:
169          (A) states the basis for relinquishing jurisdiction to a federal agency or an agency of
170     another state;
171          (B) contains the names and addresses of any known claimant; and
172          (C) is signed by the prosecuting attorney or federal prosecutor.
173          (5) A district court may not authorize the transfer or release of seized property under
174     Subsection (3)(d), unless the district court finds, by a preponderance of the evidence:
175          (a) the property is evidence in, or subject to, a federal criminal indictment, a federal
176     criminal information, or a federal criminal complaint after the property is seized;
177          (b) the property may only be forfeited under federal law;
178          (c) forfeiting the property under state law would unreasonably burden the prosecuting
179     attorney or agency; or
180          (d) the property was subject to a federal criminal investigation before the property was
181     seized.
182          (6) (a) Before a district court may order the transfer of seized property in accordance
183     with this section, the court, the prosecuting attorney, or the federal prosecutor shall mail a
184     notice to:
185          (i) each address contained in the declaration under Subsection (4)(b)(v) to give a
186     claimant the right to be heard with regard to the transfer; and
187          (ii) (A) if a federal prosecutor files the petition under Subsection (4), the prosecuting
188     attorney that is representing the agency with custody of the property; or
189          (B) if a prosecuting attorney files the petition under Subsection (4), the federal
190     prosecutor who will receive the property upon the transfer or release of the property.
191          (b) If a claimant, or the party under Subsection (6)(a)(i), does not object to the petition
192     to transfer the property within 10 days after the day on which the notice is mailed, the district
193     court shall issue the district court's order in accordance with this section.
194          (c) If the declaration does not include an address for a claimant, the district court shall
195     delay the district court's order under this section for 20 days to allow time for the claimant to
196     appear and make an objection.
197          (d) (i) If a claimant, or a party under Subsection (6)(a)(i), contests a petition to transfer
198     the property to a federal agency or to another governmental entity not created or subject to the
199     laws of this state, the district court shall promptly set the matter for hearing.
200          (ii) In making a determination under Subsection (5), the district court shall consider
201     evidence regarding hardship, complexity, judicial and law enforcement resources, protections
202     afforded under state and federal law, pending state or federal investigations, and any other
203     relevant matter.
204          (7) If an agency receives property, money, or other things of value under a federal law
205     that authorizes the sharing or transfer of all or a portion of forfeited property, or the proceeds
206     from the sale of forfeited property, the agency:
207          (a) shall use the property, money, or other things of value in compliance with federal
208     laws and regulations relating to equitable sharing;
209          (b) may use the property, money, or other things of value for a law enforcement
210     purpose described in Subsection 77-11b-403(10); and
211          (c) may not use the property, money, or other thing of value for a law enforcement
212     purpose prohibited in Subsection 77-11b-403(11).
213          (8) An agency awarded an equitable share of property forfeited by the federal
214     government may use the award money only after approval of the use by the agency's legislative
215     body.
216          (9) If a district court exercises exclusive jurisdiction over seized property, the district
217     court's exclusive jurisdiction is terminated if [the property is released by the agency with
218     custody of the property] the agency with custody of the property returns the property to a
219     claimant under:
220          (a) [Part 3, Release of Seized Property to Claimant] Part 3, Return of Seized Property
221     to Claimant; or
222          (b) Section 77-11b-203.
223          Section 4. Section 77-11a-301 is amended to read:
224     
Part 3. Return of Seized Property to Claimant

225          77-11a-301. Return of seized property to claimant -- Generally.
226          (1) (a) An agency with custody of seized property, or the prosecuting attorney, may
227     [release] return the property to a claimant if the agency or the prosecuting attorney:
228          (i) determines that the agency does not need to retain or preserve the property as
229     evidence under Chapter 11c, Retention of Evidence; or
230          (ii) seeks to return the property to the claimant because the agency or prosecuting
231     attorney determines that the claimant is an innocent owner or an interest holder.
232          (b) An agency with custody of seized property, or the prosecuting attorney, may not
233     [release] return property under this Subsection (1) if the property is subject to retention or
234     preservation under Chapter 11c, Retention of Evidence.
235          (2) An agency with custody of the seized property, or the prosecuting attorney, shall
236     [release] return the property to a claimant if:
237          (a) the claimant posts a surety bond or cash with the court in accordance with Section
238     77-11a-302;
239          (b) the court orders the [release] return of property to the claimant for hardship
240     purposes under Section 77-11a-303;
241          (c) a claimant establishes that the claimant is an innocent owner or an interest holder
242     under Section 77-11a-304; or
243          (d) the court orders property retained as evidence to be [released] returned to the
244     claimant under Section 77-11a-305.
245          (3) (a) For a computer determined to be contraband, a court may order the reasonable
246     extraction and return of specifically described personal digital data to the owner of the
247     computer.
248          (b) The agency shall determine a reasonable cost to extract the data.
249          (c) At the time of the request to extract the data, the owner of the computer shall pay
250     the agency the cost to extract the data.
251          (4) If a peace officer for the Division of Wildlife Resources seizes a vehicle, the
252     Division of Wildlife Resources shall [release] return the vehicle to a claimant in accordance
253     with Section 23A-5-201.
254          (5) If an agency is not required, or is no longer required, to retain or preserve property
255     as evidence under Chapter 11c, Retention of Evidence, and the agency seeks to [release] return
256     or dispose of the property, the agency shall exercise due diligence in attempting to notify the
257     claimant of the property to advise the claimant that the property is to be returned.
258          (6) (a) Before an agency may [release] return seized property to a person claiming
259     ownership of the property, the person shall establish that the person:
260          (i) is the owner of the property; and
261          (ii) may lawfully possess the property.
262          (b) The person shall establish ownership under Subsection (6)(a) by providing to the
263     agency:
264          (i) identifying proof or documentation of ownership of the property; or
265          (ii) a notarized statement if proof or documentation is not available.
266          (c) When seized property is returned to the owner, the owner shall sign a receipt listing
267     in detail the property that is returned.
268          (d) The agency shall:
269          (i) retain a copy of the receipt; and
270          (ii) provide a copy of the receipt to the owner.
271          Section 5. Section 77-11a-302 is amended to read:
272          77-11a-302. Return of seized property to claimant by surety bond or cash.
273          (1) Except as provided in Subsection (2), a claimant may obtain [release] the return of
274     seized property by posting a surety bond or cash with the court that is in an amount equal to the
275     current fair market value of the property as determined by the court or a stipulation by the
276     parties.
277          (2) A court may refuse to order the [release] return of property under Subsection (1) if:
278          (a) the bond tendered for the property is inadequate;
279          (b) the property is subject to the retention or preservation requirements under Chapter
280     11c, Retention of Evidence;
281          (c) the property is particularly altered or designed for use in the commission of the
282     offense subjecting the property to forfeiture under Section 77-11b-102; or
283          (d) the property is contraband.
284          (3) If a surety bond or cash is posted and the court later determines that the property is
285     forfeited, the court shall order the forfeiture of the surety bond or cash in lieu of the property.
286          Section 6. Section 77-11a-303 is amended to read:
287          77-11a-303. Return of seized property subject to forfeiture to claimant for
288     hardship.
289          (1) A claimant is entitled to the immediate [release] return of seized property for which
290     the agency has filed a notice of intent to forfeit under Section 77-11b-201 if:
291          (a) the claimant had a possessory interest in the property at the time of seizure;
292          (b) continued possession by the agency pending a forfeiture proceeding will cause
293     substantial hardship to the claimant, including:
294          (i) preventing the functioning of a legitimate business;
295          (ii) preventing any individual from working;
296          (iii) preventing any child from attending elementary or secondary school;
297          (iv) preventing or hindering an individual from receiving necessary medical care;
298          (v) preventing the care of a dependent child or adult who is elderly or disabled;
299          (vi) leaving an individual homeless; or
300          (vii) any other condition that the court determines causes a substantial hardship;
301          (c) the hardship from the continued possession of the property by the agency outweighs
302     the risk that the property will be destroyed, damaged, lost, concealed, or transferred if the
303     property is returned to the claimant during the pendency of the proceeding; and
304          (d) the determination of substantial hardship under this Subsection (1) is based upon
305     the property's use before the seizure.
306          (2) A claimant may file a motion or petition for hardship release under this section:
307          (a) in the court in which forfeiture proceedings have commenced; or
308          (b) in a district court where there is venue under Section 77-11a-102 if a forfeiture
309     proceeding has not yet commenced.
310          (3) The motion or petition for hardship release shall be served upon the agency with
311     custody of the property within five days after the day on which the motion or petition is filed.
312          (4) The court shall:
313          (a) schedule a hearing on the motion or petition within 14 days after the day on which
314     the motion or petition is filed; and
315          (b) render a decision on a motion or petition for hardship filed under this section no
316     later than 20 days after the day of the hearing, unless this period is extended by the agreement
317     of both parties or by the court for good cause shown.
318          (5) If the claimant demonstrates substantial hardship under Subsection (1), the court
319     shall order the agency to immediately return the property [immediately released] to the
320     claimant pending completion of any forfeiture proceeding.
321          (6) The court may place conditions on [release] the return of the property as the court
322     finds necessary and appropriate to preserve the availability of the property or the property's
323     equivalent for forfeiture.
324          (7) The hardship release under this section does not apply to:
325          (a) contraband;
326          (b) property that is subject to the retention or preservation requirements under Chapter
327     11c, Retention of Evidence; or
328          (c) property that is likely to be used to commit additional offenses if returned to the
329     claimant.
330          Section 7. Section 77-11a-305 is amended to read:
331          77-11a-305. Release of seized property to claimant when seized property is
332     retained as evidence.
333          (1) (a) A claimant may file a petition with the court for the return of the property that is
334     being retained as evidence in accordance with Chapter 11c, Retention of Evidence.
335          (b) The claimant may file the petition in:
336          (i) the court in which criminal proceedings have commenced regarding the offense for
337     which the property is being retained as evidence; or
338          (ii) the district court with venue under Section 77-11a-102 if there are no pending
339     criminal proceedings.
340          (c) A claimant shall serve a copy of the petition on the prosecuting attorney or federal
341     prosecutor and the agency with custody of the property.
342          (2) (a) The court shall provide an opportunity for an expedited hearing.
343          (b) After the opportunity for an expedited hearing, the court may order that the property
344     is:
345          (i) returned to the claimant if the claimant is the owner as determined by the court;
346          (ii) if the offense subjecting the property to seizure results in a conviction, applied
347     directly or by proceeds of the sale of the property toward restitution, fines, or fees owed by the
348     claimant in an amount set by the court;
349          (iii) converted to a public interest use;
350          (iv) held for further legal action;
351          (v) sold at public auction and the proceeds of the sale applied to a public interest use;
352     or
353          (vi) destroyed.
354          (3) Before the court can order property be returned to a claimant, the claimant shall
355     establish, by clear and convincing evidence, that the claimant:
356          (a) is the owner of the property; and
357          (b) may lawfully possess the property.
358          (4) If the court orders the property to be returned to the claimant, the agency with
359     custody of the property shall return the property to the claimant as expeditiously as possible.
360          Section 8. Section 77-11c-103 is amended to read:
361          77-11c-103. Disposal or return of evidence.
362          When evidence is no longer subject to retention under this chapter, the agency shall:
363          (1) return evidence that is property to a claimant under [Title 77, Chapter 11a, Part 3,
364     Release of Seized Property to Claimant] Chapter 11a, Part 3, Return of Seized Property to
365     Claimant; or
366          (2) dispose of evidence that is property or contraband in accordance with [Title 77,
367     Chapter 11a, Part 4, Disposal of Seized Property and Contraband] Chapter 11a, Part 4,
368     Disposal of Seized Property and Contraband.
369          Section 9. Section 77-11c-202 is amended to read:
370          77-11c-202. Requirements for not retaining evidence of a misdemeanor offense --
371     Preservation of sufficient evidence.
372          (1) An agency is not required to retain evidence of a misdemeanor offense under
373     Section 77-11c-201 if:
374          (a) (i) the agency determines that:
375          (A) the size, bulk, or physical character of the evidence renders retention
376     impracticable; or
377          (B) the evidence poses a security or safety problem for the agency;
378          (ii) the agency preserves sufficient evidence of the property, contraband, item, or
379     substance for use as evidence in a prosecution of the offense [in accordance with this section];
380          (iii) the agency sends a written request under Subsection 77-11c-203(1) to the
381     prosecuting attorney for permission to [release] return or dispose of the evidence; and
382          (iv) the prosecuting attorney grants the agency's written request in accordance with
383     Section 77-11c-203;
384          (b) a court orders the agency to return evidence that is property to a claimant under
385     Section 77-11a-305; or
386          (c) the evidence is wildlife or parts of wildlife.
387          (2) (a) Subsection (1) does not require an agency to return or dispose of evidence of a
388     misdemeanor offense.
389          (b) Subsection (1)(a) does not apply when the [release] return or disposal of evidence
390     of a misdemeanor offense is in compliance with a memorandum of understanding between the
391     agency and the prosecuting attorney.
392          (3) If [evidence] the evidence described in Subsection (1) is a controlled substance, an
393     agency shall preserve sufficient evidence under Subsection (1)(a)(ii) of the controlled substance
394     by:
395          (a) collecting and preserving a sample of the controlled substance [and a sample of
396     biological evidence from the controlled substance] for independent testing and use as evidence;
397          (b) taking a photographic or video record of the controlled substance with identifying
398     case numbers;
399          (c) maintaining a written report of a chemical analysis of the controlled substance if a
400     chemical analysis was performed by the agency; and
401          (d) if the controlled substance exceeds 10 pounds, retain at least one pound of the
402     controlled substance that is randomly selected from the controlled substance.
403          (4) If [evidence] the evidence described in Subsection (1) is drug paraphernalia, an
404     agency shall preserve sufficient evidence under Subsection (1)(a)(ii) of the drug paraphernalia
405     by:
406          (a) collecting and preserving a sample of the controlled substance from the drug
407     paraphernalia for independent testing and use as evidence;
408          (b) maintaining a written report of a chemical analysis of the drug paraphernalia if a
409     chemical analysis was performed by the agency; and
410          (c) taking a photographic or video record of the drug paraphernalia with identifying
411     case numbers.
412          (5) If [evidence] the evidence described in Subsection (1) is a computer, the agency
413     shall preserve sufficient evidence under Subsection (1)(a)(ii) of the computer by:
414          (a) extracting all data from the computer that would be evidence in a prosecution of an
415     individual for the offense; and
416          [(b) collecting a sample of biological evidence from the computer for independent
417     testing and use as evidence; and]
418          [(c)] (b) taking a photographic or video record of the computer with identifying case
419     numbers.
420          (6) For any other type of evidence, the agency shall preserve sufficient evidence under
421     Subsection (1)(a)(ii) of the property, contraband, item, or substance by [: (a) collecting and
422     preserving a sample of biological evidence from the property, contraband, item, or substance
423     for independent testing and use as evidence; and (b)] taking a photographic or video record of
424     the property, contraband, item, or substance with identifying case numbers.
425          Section 10. Section 77-11c-203 is amended to read:
426          77-11c-203. Request to prosecuting attorney by agency -- Notification to
427     defendant.
428          (1) If an agency determines that the agency is not required to retain evidence of a
429     misdemeanor offense under Subsection 77-11c-202(1)(a)(i) and the agency seeks to [release]
430     return or dispose of the evidence, the agency shall send a written request to the prosecuting
431     attorney that:
432          (a) identifies the evidence;
433          (b) explains the reason for which the agency is not required to retain the evidence
434     under Subsection 77-11c-202(1)(a)(i); and
435          (c) explains the steps that the agency will take, or has taken, to preserve sufficient
436     evidence of the property, contraband, item, or substance for use as evidence in a prosecution of
437     the offense.
438          (2) If the prosecuting attorney receives a written request under Subsection (1) and
439     determines that the agency needs to retain the evidence for a prosecution of the misdemeanor
440     offense, the prosecuting attorney shall send a written notification to the agency that explains
441     the reason for which the prosecuting attorney is denying the agency's request.
442          (3) If the prosecuting attorney receives a written request under Subsection (1) and
443     determines that the agency does not need to retain the evidence for a prosecution of the
444     misdemeanor offense, the prosecuting attorney shall provide written notice of the intent to not
445     retain the evidence that:
446          (a) is sent by certified mail, return receipt requested, or a delivery service that provides
447     proof of delivery, to:
448          (i) any individual charged with or adjudicated for the offense; and
449          (ii) the individual's most recent attorney of record; and
450          (b) explains that the individual receiving the notice may submit a written objection to
451     the prosecuting attorney.
452          (4) (a) An individual, who is charged with or adjudicated for the offense, may submit a
453     written objection to the [disposal or release] return or disposal of the evidence by the agency no
454     later than 30 days after the day on which the prosecuting attorney receives proof of delivery
455     under Subsection (3).
456          (b) If an individual submits a written objection under Subsection (4)(a), the prosecuting
457     attorney shall send a written notification to the agency that explains the reason for which the
458     prosecuting attorney is denying the agency's request.
459          (c) If the prosecuting attorney does not receive a written objection within the time
460     period described in Subsection (4)(a), the prosecuting attorney shall send a written notification
461     to the agency that grants the agency's request to [release] return or dispose of the evidence.
462          (5) (a) If a prosecuting attorney receives a written request from an agency seeking to
463     [release] return or dispose of evidence, the prosecuting attorney shall:
464          (i) provide a notice of receipt to the agency within 15 days after the day on which the
465     prosecuting attorney receives the written request; and
466          (ii) send a written notification to the agency of the prosecuting attorney's decision to
467     deny or grant an agency's written request within 60 days after the day on which the prosecuting
468     attorney receives the agency's written request.
469          (b) If an agency does not receive a notice of receipt under Subsection (5)(a)(i) or a
470     written notification under Subsection (5)(a)(ii), the agency may send the written request to the
471     district attorney, county attorney, attorney general, or other prosecuting attorney who directly
472     oversees and supervises the prosecuting attorney.
473          (6) If a prosecuting attorney denies an agency's written request to [release] return or
474     dispose of evidence under this section, the agency shall retain the evidence in accordance with
475     Section 77-11c-201.
476          (7) The requirements of this section do not apply when the [release] return or disposal
477     of evidence of a misdemeanor offense is in compliance with a memorandum of understanding
478     between the agency and the prosecuting attorney.
479          Section 11. Section 77-11c-301 is amended to read:
480          77-11c-301. Retention of evidence for felony offenses.
481          [(1) Except as provided in Subsection (4) and Subsection 23A-5-201(3), an agency
482     shall retain evidence of a felony offense:]
483          [(a) at the discretion of the prosecuting attorney; or]
484          [(b) until all direct appeals and retrials are final.]
485          [(2) If the prosecuting attorney decides to retain control over the evidence of the felony
486     offense in anticipation of possible collateral attacks upon the judgment or for use in a potential
487     prosecution, the prosecuting attorney may decline to authorize the disposal of the evidence.]
488          (1) Except as provided in Subsection (4), an agency shall retain evidence of a felony
489     offense:
490          (a) for the longer of:
491          (i) the length of the statute of limitations for the felony offense if:
492          (A) charges are not filed for the felony offense; or
493          (B) the felony offense remains unsolved;
494          (ii) the length of time that any individual convicted of the felony offense, or a lesser
495     included offense, remains in custody;
496          (iii) one year after the day on which all direct appeals of the final judgment for any
497     individual convicted of the felony offense, or a lesser included offense, are exhausted; or
498          (iv) the length of time that a petition for postconviction relief, and any appeal of the
499     petition, is pending if an individual convicted of the felony offense files the petition within the
500     one-year time period described in Subsection (1)(c); or
501          (b) at the discretion of the prosecuting attorney or federal prosecutor if the prosecution
502     of the felony offense resulted in an acquittal or dismissal.
503          [(3)] (2) An agency shall ensure that evidence of a felony offense is subject to a
504     continuous chain of custody.
505          (3) Subsection (1) does not require an agency to return or dispose of evidence of a
506     felony offense.
507          (4) An agency shall retain and preserve biological evidence of a violent felony offense
508     in accordance with Part 4, Preservation of Biological Evidence for Violent Felony Offenses.
509          Section 12. Section 77-11c-302 is enacted to read:
510          77-11c-302. Requirements for not retaining evidence of felony offense --
511     Preservation of sufficient evidence.
512          (1) An agency is not required to retain evidence of a felony offense under Section
513     77-11c-301 if:
514          (a) (i) the agency determines that:
515          (A) the size, bulk, or physical character of the evidence renders retention impracticable
516     or the evidence poses a security or safety problem for the agency; and
517          (B) the evidence no longer has any significant evidentiary value;
518          (ii) the agency preserves sufficient evidence from the property, contraband, item, or
519     substance for use as evidence in a prosecution of the offense; and
520          (iii) a prosecuting attorney or a court authorizes the agency to return or dispose of the
521     evidence as described in Subsection 77-11c-303;
522          (b) a court orders the agency to return evidence that is property to a claimant under
523     Section 77-11a-305; or
524          (c) the evidence is wildlife or parts of wildlife.
525          (2) Subsection (1) does not require an agency to return or dispose of evidence of a
526     felony offense.
527          (3) Subsection (1) does not apply to biological evidence of a violent felony offense
528     because an agency is required to retain biological evidence of a violent felony offense as
529     described in Part 4, Preservation of Biological Evidence for Violent Felony Offenses.
530          (4) If the evidence described in Subsection (1) is a controlled substance, an agency
531     shall preserve sufficient evidence under Subsection (1)(a)(ii) of the controlled substance by:
532          (a) collecting and preserving a sample of the controlled substance for independent
533     testing and use as evidence;
534          (b) taking a photographic or video record of the controlled substance with identifying
535     case numbers;
536          (c) maintaining a written report of a chemical analysis of the controlled substance if a
537     chemical analysis was performed by the agency;
538          (d) if the controlled substance exceeds 10 pounds, retaining at least one pound of the
539     controlled substance that is randomly selected from the controlled substance; and
540          (e) for a violent felony offense, collecting and preserving biological evidence from the
541     controlled substance as described in Section 77-11c-401.
542          (5) If the evidence described in Subsection (1) is drug paraphernalia, an agency shall
543     preserve sufficient evidence under Subsection (1)(a)(ii) of the drug paraphernalia by:
544          (a) collecting and preserving a sample of the controlled substance from the drug
545     paraphernalia for independent testing and use as evidence;
546          (b) maintaining a written report of a chemical analysis of the drug paraphernalia if a
547     chemical analysis was performed by the agency;
548          (c) taking a photographic or video record of the drug paraphernalia with identifying
549     case numbers; and
550          (d) for a violent felony offense, collecting and preserving biological evidence from the
551     drug paraphernalia as described in Section 77-11c-401.
552          (6) If the evidence described in Subsection (1) is a computer, the agency shall preserve
553     sufficient evidence under Subsection (1)(a)(ii) of the computer by:
554          (a) extracting all data from the computer that would be evidence in a prosecution of an
555     individual for the offense;
556          (b) taking a photographic or video record of the computer with identifying case
557     numbers; and
558          (c) for a violent felony offense, collecting and preserving biological evidence from the
559     computer as described in Section 77-11c-401.
560          (7) For any other type of evidence, the agency shall preserve sufficient evidence under
561     Subsection (1)(a)(ii) of the property, contraband, item, or substance by:
562          (a) taking a photographic or video record of the property, contraband, item, or
563     substance with identifying case numbers; and
564          (b) for a violent felony offense, collecting and preserving biological evidence as
565     described in Section 77-11c-401.
566          Section 13. Section 77-11c-303 is enacted to read:
567          77-11c-303. Procedure for authorizing the return or disposal of evidence of a
568     felony offense.
569          (1) If an agency determines that the agency is not required to retain evidence of a
570     felony offense under Subsection 77-11c-302(1)(a)(i), and the agency seeks to return or dispose
571     of the evidence, the agency shall send a written request to the prosecuting attorney that:
572          (a) identifies the evidence;
573          (b) explains the reason that the agency is not required to retain the evidence under
574     Subsection 77-11c-302(1)(a)(i); and
575          (c) explains the steps that the agency will take, or has taken, to preserve sufficient
576     evidence from the property, contraband, item, or substance for use as evidence in a prosecution
577     of the offense.
578          (2) If a prosecuting attorney receives a written request described in Subsection (1), the
579     prosecuting attorney shall:
580          (a) provide a notice of receipt to the agency within 15 days after the day on which the
581     prosecuting attorney receives the written request; and
582          (b) send a written notification to the agency of the prosecuting attorney's decision to
583     deny or grant an agency's written request within 60 days after the day on which the prosecuting
584     attorney receives the agency's written request.
585          (3) If an agency sends a written request described in Subsection (1) to the prosecuting
586     attorney, the agency shall also send the written request by certified mail, return receipt
587     requested, or a delivery service that provides proof of delivery, to:
588          (a) any individual who remains in custody based on a conviction related to the
589     evidence;
590          (b) the private attorney or public defender of record for each individual described in
591     Subsection (3)(a);
592          (c) the entity that employed the private attorney or public defender described in
593     Subsection (3)(b) at the time of the criminal conviction;
594          (d) if applicable, the prosecuting agency responsible for the prosecution of each
595     individual described in Subsection (3)(a); and
596          (e) the Utah attorney general.
597          (4) (a) If a person described in Subsection (3) receives a written request from an agency
598     seeking to return or dispose of evidence of the felony offense, the person may object to the
599     agency's written request to return or dispose of evidence of the felony offense.
600          (b) To object to an agency's request under Subsection (4)(a), the person must send a
601     written objection to the agency and prosecuting attorney within 60 days after the day on which
602     the person receives the agency's written request.
603          (5) If the prosecuting attorney receives a written request under Subsection (2) and
604     determines that the agency needs to retain the evidence for a prosecution of the felony offense,
605     the prosecuting attorney shall send a written notification to the agency that explains the reason
606     for which the prosecuting attorney is denying the agency's request.
607          (6) The agency may petition the court for an order granting the agency's request to
608     return or dispose of the evidence of a felony offense if:
609          (a) the prosecuting attorney denies the agency's written request or does not respond to
610     an agency's written request within the time periods described in Subsection (2); or
611          (b) a person described in Subsection (3) objects to the agency's written request.
612          (7) The court shall hold a hearing on the agency's petition to determine whether an
613     agency's request to return or dispose of evidence should be granted.
614          (8) After a hearing on the agency's petition, the court shall grant an agency's request to
615     return or dispose of evidence of a felony offense if the court determines, by a preponderance of
616     the evidence, that:
617          (a) the size, bulk, or physical character of the evidence renders retention impracticable
618     or the evidence poses a security or safety problem for the agency;
619          (b) the evidence no longer has any significant evidentiary value; and
620          (c) the agency will take, or has taken, steps to preserve sufficient evidence from the
621     property, contraband, item, or substance for use as evidence in a prosecution of the offense.
622          (9) If the court determines that a prosecuting attorney, or a person described in
623     Subsection (3), objects to an agency's request to dispose or return of physical evidence of a
624     felony offense because the physical evidence contains biological evidence that would be
625     evidence in a prosecution of the offense, the court may require the agency to collect and
626     preserve biological evidence from the physical evidence before the agency returns or disposes
627     of the evidence.
628          (10) If a prosecuting attorney denies the agency's written request or a person described
629     in Subsection (3) objects to the agency's written request, the agency shall retain the evidence of
630     a felony offense as described in Section 77-11c-301 until:
631          (a) the agency obtains a court order granting the agency's request to return or dispose of
632     the evidence as described in Subsection (8); or
633          (b) the time periods described in Section 77-11c-301 have expired.
634          Section 14. Section 77-11c-401 is amended to read:
635          77-11c-401. Preservation of biological evidence -- Procedures -- Inventory
636     request.
637          (1) Except as provided in Section 77-11c-402, an evidence collecting or retaining
638     entity shall preserve biological evidence of a violent felony offense in accordance with this
639     part.
640          (2) An evidence collecting or retaining entity shall preserve biological evidence of a
641     violent felony offense:
642          (a) for the longer of:
643          (i) the length of the statute of limitations for the violent felony offense if:
644          (A) no charges are filed for the violent felony offense; or
645          (B) the violent felony offense remains unsolved;
646          [(ii) the length of time that the individual convicted of the violent felony offense or any
647     lesser included violent offense remains in custody; or]
648          [(iii) the length of time that a co-defendant remains in custody;]
649          (ii) the length of time that any individual convicted of the violent felony offense, or a
650     lesser included offense, remains in custody;
651          (iii) one year after the day on which all direct appeals of the judgment for any
652     individual convicted of the violent felony offense, or a lesser included offense, are exhausted;
653     or
654          (iv) the length of time that a petition for postconviction relief, and any appeal of the
655     petition, is pending if an individual convicted of the violent felony offense files the petition
656     within the one-year time period described in Subsection (2)(a)(iii); or
657          (b) at the discretion of the prosecuting attorney or federal prosecutor if the prosecution
658     of the violent felony offense resulted in an acquittal or dismissal.
659          [(b)] (3) An evidence collecting or retaining entity shall ensure that biological evidence
660     under Subsection (2) is:
661          (a) preserved in an amount and manner sufficient to:
662          (i) develop a DNA profile; and
663          (ii) if practicable, allow for independent testing of the biological evidence by a
664     defendant; and
665          [(c)] (b) subject to a continuous chain of custody.
666          [(3)] (4) (a) Upon request by a defendant under Title 63G, Chapter 2, Government
667     Records Access and Management Act, the evidence collecting or retaining entity shall prepare
668     an inventory of the biological evidence preserved in connection with the defendant's criminal
669     case.
670          (b) If the evidence collecting or retaining entity cannot locate biological evidence
671     requested under Subsection [(3)(a)] (4)(a), the custodian for the entity shall provide a sworn
672     affidavit to the defendant that:
673          (i) describes the efforts taken to locate the biological evidence; and
674          (ii) affirms that the biological evidence could not be located.
675          [(4)] (5) The evidence collecting or retaining entity may dispose of biological evidence
676     before the day on which the period described in Subsection [(2)(a)] (2) expires if:
677          (a) no other provision of federal or state law requires the evidence collecting or
678     retaining entity to preserve the biological evidence;
679          (b) the evidence collecting or retaining entity sends notice in accordance with
680     Subsection [(5)] (6); and
681          (c) an individual notified under Subsection [(5)(a)] (6)(a) does not within 180 days
682     after the day on which the evidence collecting or retaining entity receives proof of delivery
683     under Subsection [(5)] (6):
684          (i) file a motion for testing of the biological evidence under Section 78B-9-301; or
685          (ii) submit a written request under Subsection [(5)(b)(ii)] (6)(b)(ii).
686          [(5)] (6) If the evidence collecting or retaining entity intends to dispose of the
687     biological evidence before the day on which the period described in Subsection [(2)(a)] (2)
688     expires, the evidence collecting or retaining entity shall send a notice of intent to dispose of the
689     biological evidence that:
690          (a) is sent by certified mail, return receipt requested, or a delivery service that provides
691     proof of delivery, to:
692          (i) an individual who remains in custody based on a criminal conviction related to the
693     biological evidence;
694          (ii) the private attorney or public defender of record for each individual described in
695     Subsection [(5)(a)(i)] (6)(a)(i);
696          (iii) the entity that employed the private attorney or public defender at the time of the
697     criminal conviction;
698          [(iii)] (iv) if applicable, the prosecuting agency responsible for the prosecution of each
699     individual described in Subsection [(5)(a)(i)] (6)(a)(i); and
700          [(iv)] (v) the Utah attorney general; and
701          (b) explains that the party receiving the notice may:
702          (i) file a motion for testing of biological evidence under Section 78B-9-301; or
703          (ii) submit a written request that the evidence collecting or retaining entity retain the
704     biological evidence.
705          [(6)] (7) (a) Subject to Subsections [(6)(b)] (7)(b) and (c), if the evidence collecting or
706     retaining entity receives a written request to retain the biological evidence under Subsection
707     [(5)(b)(ii)] (6)(b)(ii), the evidence collecting or retaining entity shall retain the biological
708     evidence while the defendant remains in custody.
709          (b) Subject to Subsection (6)(c), the evidence collecting or retaining entity may only
710     return or dispose of physical evidence of a violent felony offense as described in Part 3,
711     Retention of Evidence for Felony Offenses.
712          [(b) Subject to Subsection (6)(c), the evidence collecting or retaining entity is not
713     required to preserve physical evidence that may contain biological evidence if the physical
714     evidence's size, bulk, or physical character renders retention impracticable.]
715          (c) If the evidence collecting or retaining entity [determines that retention is
716     impracticable] is not required to retain physical evidence of the violent felony offense under
717     Part 3, Retention of Evidence for Felony Offenses, before returning or disposing of the physical
718     evidence, the evidence collecting or retaining entity shall:
719          (i) remove the portions of the physical evidence likely to contain biological evidence
720     related to the violent felony offense; and
721          (ii) preserve the removed biological evidence in a quantity sufficient to permit future
722     DNA testing.
723          [(7)] (8) To comply with the preservation requirements described in this section, a law
724     enforcement agency or a court may:
725          (a) retain the biological evidence; or
726          (b) if a continuous chain of custody can be maintained, return the biological evidence
727     to the custody of the other law enforcement agency that originally provided the biological
728     evidence to the law enforcement agency.
729          Section 15. Effective date.
730          This bill takes effect on May 1, 2024.