Child Welfare

Passed:

HB 305 Child Abuser Education Restrictions prohibits an individual who has committed felony child abuse from exempting the individual's child from required school attendance. We worked with the sponsor to ensure that this bill only covers the most severe felony levels of abuse.

HB 520 Child Welfare Changes would have amended the definition of “threatened harm” in the Juvenile code. 

SB 163 Child Welfare Modifications provides that it is the public policy of the state that a parent retains the right to have contact with a child when the child is placed outside of the home and that a child has the right to have contact with siblings when the child is separated from them. It directs a juvenile court to make certain findings regarding parent-time and requires that parent-time be under the least restrictive conditions necessary to protect the child.

SB 290 Juvenile Court Modifications was a bill we brought to the sponsor. It amends the original jurisdiction of the juvenile court to include jurisdiction over a petition for special findings and allows for the juvenile court to enter an order with special findings regarding the abuse, neglect, or dependence of a non citizen child up to the age of 21. Previously, the law only covered juveniles up to the age of 18.

Failed:

Several bills were introduced that sought to require members of the clergy to report child abuse. These included HB 115 Child Abuse Reporting Revisions, HB 212 Clergy Child Abuse Reporting Requirements, and SB 72 Child Abuse Reporting Requirements. These bills either failed or did not receive a committee hearing. The long recognized priest-penitent privilege is still intact.

HB 504 Child Welfare Investigations Amendments sought to require a child welfare caseworker to obtain a warrant before entering a private premises and require the removal of a child to be recorded. This bill was never heard in committee.

HB 515 Child Abuse Reporting Amendments sought to require an individual to report information about heinous child abuse or heinous child neglect. It would have required the Division of Child and Family Services and law enforcement agencies to make reports about investigations into reported child abuse or neglect available to the Legislature. This bill was never heard in committee.

Data Tracking

Passed:

HB 23 Forensic Mental Health Amendments authorizes the Forensic Mental Health Coordinating Council to determine and collect data from the Department of Corrections regarding mental health services.

HB 43 Domestic Violence Modifications creates the Domestic Violence Data Task Force under the Department of Public Safety, a member of which will be appointed by UACDL.

HB 57 Law Enforcement Investigation Amendments addresses the use of reverse-location or geofence warrants. Specifically, it creates a three-step process for law enforcement to generate geofence-retrieved information, each step of which must be approved by a magistrate. It also establishes law enforcement reporting requirements for reverse-location warrants. While we do not support the implicit legitimization of geofence warrants, we do think that this is an improvement from current practice.

One of our top priority bills for our juvenile attorney this session was HB 60 Juvenile Justice Modifications, which amends statutes related to juvenile records. Specifically, it prohibits public employers from excluding applicants from initial interviews due to a juvenile delinquency adjudication; requires the State Board of Education to include information about dangerous weapons in an annual report on school discipline and law enforcement action; provides that a juvenile may petition the juvenile court for vacatur of the adjudication if the adjudication was for a violation of prostitution, aiding prostitution, sexual solicitation, or human trafficking for labor if the petitioner engaged in the human trafficking for labor while subject to force, fraud, or coercion; clarifies the court can expunge records of arrest, investigation, detention, delinquency petitions, and non judicial adjustments; allows for expungement of a petition found not true 30 days after the judicial decision; requires the court to consider certain factors before expunging if the person is a restricted person creates automatic expungement for records consisting solely of successful non judicial adjustments completed on or after October 1, 2023. The court received $566,100 in funding for implementation.

HB 297 Victim Services Amendments requires CCJJ and law enforcement agencies to compile data on sexual assaults. It restricts the time period in which a victim of rape or incest can get an abortion to 18 weeks and makes performing an abortion on a victim of rape or incest after 18 weeks a second degree felony.

HB 304 Juvenile Justice Revisions was one of our high priority issues. This bill designates existing funds for a juvenile gang and other violent crime prevention and intervention program; requires courts to notify schools and SROs about students that have committed violent felonies, weapons offenses, or are placed on probation; requires schools to create a reintegration plan for every student they receive a notification from court for; expands when a school can refer a case directly to law enforcement or court; allows for detention to be used for class C offenses and contempt of court for the substantive offense happening on school property; makes it a class B misdemeanor for a juvenile to possess a machine gun attachment; emphasizes reporting requirements on weapons brought to school; and modifies non judicial eligibility requirements, including adding to the list of offenses not eligible of NJ through probation. The original bill allowed detention to be used for status offenses (truancy) and the valid court order exception, allowed tobacco and truancy to be referred directly to law enforcement and court, and restricted NJA eligibility.

HB 352 Law Enforcement Data Amendments requires CCJJ, Department of Corrections, and the Board of Pardons and Parole to report on statewide recidivism and the recidivism standard metric. Recidivism in this bill is defined as a return to criminal activity after a previous criminal conviction and ‘recidivism standard metric’ is defined as the number of individuals who are returned to prison for a new conviction within the three years after the day on which the individuals were released from prison. This bill requires CCJJ to reevaluate the recidivism standard metric in 2024 to determine if it needs to be more broad. It also requires the information to include the defendant's BCI state identification number, the citation number associated with the case, and the offense tracking number associated with the case.

HB 362 Criminal Justice Data Management Task Force Sunset Extension extends the Criminal Justice Data Management Task Force sunset date to 2025. Defense attorneys are not members of this task force.

SB 87 Criminal Prosecution Modifications became a data tracking bill, which requires the Administrative Office of the Courts to collect the following data on cases involving individuals charged with class A misdemeanors and felonies: the number of cases in which a preliminary hearing is set and placed on the court calendar; the median and range of the number of times that a preliminary hearing is continued in cases in which a preliminary hearing is set and placed on the court calendar; the number of cases, and the average time to disposition for those cases, in which only 1102 statements are submitted as probable cause at the preliminary hearing; the number of cases, and the average time to disposition for those cases, in which 1102 statements and witness testimony are submitted as probable cause at the preliminary hearing; the number of cases, and the average time to disposition for those cases, in which only witness testimony is submitted as probable cause at the preliminary hearing; and the number of cases in which a preliminary hearing is held and the defendant is bound over for trial.

Failed:

HB 29 Mental Health Support and Law Enforcement Co-response would have required the Division of Integrated Healthcare to establish a grant program to fund best practice crisis intervention teams and required the tracking and reporting of activities and outcomes funded through the grant program. This bill passed the House vote but failed to receive funding for final passage.

HB 86 Firearm Reporting Requirements passed the House vote but failed to receive funding for final passage. It would have required BCI to gather data on where restricted persons are obtaining firearms.

HB 334 Health Education Amendments is the bill that Rep. Moss runs every year to require the State Board of Education to establish curriculum requirements that include instruction in sexual assault resource strategies, sexual violence behavior prevention, and the legal implications of electronically distributing sexually explicit images. This bill would have also required a local education agency to review data, including data on sexual assault, for each county and use the reviewed data to inform policies on health education. This bill faces insurmountable opposition each year, despite the Legislature’s willingness to criminalize many behaviors that are not taught in schools. This bill was held in committee.

HB 498 Criminal Data and Information Amendments was another bill that attempted to define recidivism and require certain recidivism reporting requirements. This bill was never heard in committee.

HB 515 Child Abuse Reporting Amendments sought to require an individual to report information about heinous child abuse or heinous child neglect. It would have required the Division of Child and Family Services and law enforcement agencies to make reports about investigations into reported child abuse or neglect available to the Legislature. This bill was never heard in committee.

Domestic Violence

Passed:

HB 43 Domestic Violence Modifications creates the Domestic Violence Data Task Force under the Department of Public Safety, a member of which will be appointed by UACDL.

HB 120 Weapon Possession Amendments amends the definition of a Category II restricted person relating to domestic violence by exempting those whose conviction has been expunged, set aside, reduced to an infraction by court order or pardoned.

HB 199 Voluntary Firearm Safekeeping Amendments prohibits a law enforcement agency that receives a firearm from the owner or the owner's cohabitant for safekeeping from returning the firearm to the owner if the owner: is a restricted person; or has been arrested and booked into jail on a class A misdemeanor or felony domestic violence offense, has had a court review the probable cause statement and determine that probable cause existed for the arrest, and is subject to a jail release agreement or a jail release court order. This bill also directs the Department of Public Safety to create a pamphlet detailing a domestic violence victim's rights to commit the perpetrator's firearm to a law enforcement agency.

HB 314 Remedies for Victims of Domestic Violence Amendments allows victims of domestic violence to terminate their rental agreements with a lower termination fee and get an expungement for an eviction.

SB 117 Domestic Violence Amendments requires a law enforcement officer to conduct a lethality assessment when responding to a report of domestic violence between intimate partners. It requires this lethality assessment to be submitted to the Department of Public Safety along with the probable cause statement and incident report. It also includes the lethality assessment as part of the information that may be considered as part of pretrial and presentencing processes. While we had concerns about the efficacy of lethality assessments, we didn’t have enough support to oppose this bill outright.

Drug and Alcohol

Passed:

HB 103 Weapon Possession While Under the Influence Amendments amends Category II restricted person and provides a penalty for carrying a weapon while impaired even with a prescription. We worked specifically on this bill and helped draft the language for the sponsor to ensure its passage.

HB 223 Drug and Alcohol Enforcement Amendments requires the Department of Public Safety to have ten law enforcement officers with a primary focus on drug-related offenses.

Failed:

HB 27 Drug Possession Penalty Amendments would have reduced the penalty of possession of a dangerous weapon and a controlled substance from a third degree felony to a class A misdemeanor if the controlled substance was marijuana. This bill was circled on the House floor and never received a final vote.

HB 254 Penalty for False Statement During Drug Arrest would have made it a class B misdemeanor offense for someone under arrest to falsely claim that they ingested drugs, with the false claim causing law enforcement to take them to a hospital. This bill passed the House vote but ran out of time in the Senate.

HB 419 Tobacco Regulation Amendments would have removed the penalty enhancement for a subsequent offense of selling a tobacco product to someone under 21 years old. It also would have removed the mens rea requirement for selling tobacco to a minor, which is currently an infraction. This bill was never heard in committee.

HB 536 Student Drug Possession Amendments would have required an LEA to amend their conduct and discipline policies to address the possession or use of certain tobacco or nicotine products. It sought to allow a school to issue a citation to a student who possesses a tobacco product, an electronic cigarette product, or a nicotine product on school property.

SB 248 Tobacco Amendments would have made it a class B misdemeanor to remotely sell a cigar or pipe tobacco without a license. This bill was held in committee.

SB 200 Psilocybin Recommendation Pilot Program Amendments would have decriminalized psilocybin possession under certain circumstances and created other penalties for violations of possession requirements. This bill was held in committee and failed to be voted on the Senate floor. There will likely be a pilot program exploring the efficacy of psilocybin based mental health treatment.

SB 254 Drug-induced Homicide Amendments sought to create the second degree felony offense of drug-induced homicide, defined as an actor causing or contributing to the death of someone to whom they sold a controlled substance. This bill was run last year and also failed to pass. Due to the concern that family and friends would be the main perpetrators of this offense, the bill this year stipulated that the controlled substance must be sold to the deceased by the actor, not just distributed. The bill also allowed for an affirmative defense if the actor reports the overdose. We testified that in statute, the sale of a controlled substance can mean a wide variety of things, including an exchange of goods or services. We also testified that there is an assumed risk inherent in every use of drugs and that a dealer is not able to know which other drugs an individual might already be using, making it impossible for dealers to make informed decisions regarding the sale of drugs. We spoke particularly against this offense applying not just in situations where a controlled substance causes the death of an individual, but also in situations where controlled substances “contribute” to the death of an individual. This bill was widely opposed and failed on the Senate floor.

DUI

Passed:

HB 62 Driving Under the Influence Modifications was a significant, multi-year effort to expand ignition interlock options as a way to reinstate driving privileges. Previously, in order to qualify for a reinstatement, you had to take a risk assessment approved by the DLD and be deemed low-risk. This bill allows people to keep their driving privileges after first-time DUIs or first-time refusals. Drivers who chose early reinstatement by electing to become an ignition interlock restricted driver will no longer be subject to a license suspension upon a first offense DUI conviction. However, if drivers do not successfully complete the early reinstatement program and are convicted (i.e., remove the device early), they receive no credit towards a subsequent suspension triggered by a DUI conviction. Additionally, drivers with revoked licenses based on a first refusal may apply for a new license after 90 days from the revocation date (down from 18 months). Furthermore, their license will not be impacted by a first offense DUI conviction so long as they complete the three years interlock restriction for a refusal. If they do not complete the full three years, the DLD will suspend for 120 days if convicted of a first offense DUI. The bill also allows participation in the 24/7 program for first-time refusals, but since clients can restore driving privileges through the interlock program, the 24/7 program mainly helps people avoid minimum mandatory jail under the statute. Unfortunately, the bill also provides that persons convicted of Negligently Operating a Motor Vehicle Resulting in Injury or Negligently Operating a Motor Vehicle Resulting in Death are no longer eligible for 24/7 participation. There are additional nuanced changes not addressed here but will be covered by Josh Egan in the upcoming UACDL DUI Seminar in May.

HB 236 Driving Under the Influence Testing Amendments gives law enforcement civil and criminal immunity to liability from drawing a blood sample from a person suspected of DUI if the blood is drawn in a secure area within a law enforcement facility with a valid warrant or consent.

HB 369 DUI Amendments combines separate sections that include the elements of a driving under the influence offense into a single section and the elements of a refusal of a chemical test offense into a single section.

SB 80 Driver License Suspension and Revocation Amendments allows a court to reinstate a person’s driving privileges if a person is participating in or has completed a “problem solving court program approved by the Judicial Council,” including a DUI or drug court program, and has elected to become an interlock restricted driver during the time frame of the prescribed suspension period.

Failed:

HB 387 Suspended Driver License Appeals Amendments would have required certain evidence be provided before the administrative hearing to a person accused of a DUI, including all video and audio recordings of the investigation and chemical test. It also provided a time period of 10 days for a police officer to submit these and the citation to the DLD and made them protected records.

Expungement

Passed:

One of our top priority bills for our juvenile attorney this session was HB 60 Juvenile Justice Modifications, which amends statutes related to juvenile records. Specifically, it prohibits public employers from excluding applicants from initial interviews due to a juvenile delinquency adjudication; requires the State Board of Education to include information about dangerous weapons in an annual report on school discipline and law enforcement action; provides that a juvenile may petition the juvenile court for vacatur of the adjudication if the adjudication was for a violation of prostitution, aiding prostitution, sexual solicitation, or human trafficking for labor if the petitioner engaged in the human trafficking for labor while subject to force, fraud, or coercion; clarifies the court can expunge records of arrest, investigation, detention, delinquency petitions, and non judicial adjustments; allows for expungement of a petition found not true 30 days after the judicial decision; requires the court to consider certain factors before expunging if the person is a restricted person creates automatic expungement for records consisting solely of successful non judicial adjustments completed on or after October 1, 2023. The court received $566,100 in funding for implementation.

HB 314 Remedies for Victims of Domestic Violence Amendments allows victims of domestic violence to terminate their rental agreements with a lower termination fee and get an expungement for an eviction.

SB 293 Expungement Revisions provides that if there is a victim of an offense, the victim may object to a petition to expunge within 60 days.

Failed:

HB 323 Expungement Fee Waiver Amendments was not heard in committee. This bill would have extended the waiver of fees for certificates of eligibility and petitions for expungement until 2028. As it stands, the waiver will be repealed on July 1, 2023.

HB 337 Expungement Fee Waivers would have required BCI to waive expungement fees for individuals found to be indigent by a court. This bill was not heard in committee.

HB 490 Expungement Changes sought to clarify expungement statute and require an agency to provide written confirmation of an expungement. This bill passed the House vote but ran out of time to be heard in the Senate.

HB 497 Expungement Records Amendments would have amended the list of agencies that may view information contained in expunged criminal records to exclude the Department of Commerce, the Department of Insurance, and the State Board of Education. This bill was never heard in committee.

SB 58 Background Check Amendments would have reduced the time period within which a law enforcement agency must expunge criminal records if the records qualify for automatic expungement. There were concerns from law enforcement agencies that this wasn’t going to be possible, but we believe that the deadlines provided were within reason and hope to see this bill again next year.

Firearms

Passed:

HB 103 Weapon Possession While Under the Influence Amendments amends Category II restricted person and provides a penalty for carrying a weapon while impaired even with a prescription. We worked specifically on this bill and helped draft the language for the sponsor to ensure its passage.

HB 120 Weapon Possession Amendments amends the definition of a Category II restricted person relating to domestic violence by exempting those whose conviction has been expunged, set aside, reduced to an infraction by court order or pardoned.

HB 199 Voluntary Firearm Safekeeping Amendments prohibits a law enforcement agency that receives a firearm from the owner or the owner's cohabitant for safekeeping from returning the firearm to the owner if the owner: is a restricted person; or has been arrested and booked into jail on a class A misdemeanor or felony domestic violence offense, has had a court review the probable cause statement and determine that probable cause existed for the arrest, and is subject to a jail release agreement or a jail release court order. This bill also directs the Department of Public Safety to create a pamphlet detailing a domestic violence victim's rights to commit the perpetrator's firearm to a law enforcement agency.

HB 219 Firearms Regulations declares the state's commitment to the Second Amendment to the United States Constitution and declares that the state and its political subdivisions will not enforce federal laws that purport to restrict or ban certain firearms, ammunition, or firearms accessories.

HB 225 Firearm Possession Amendments amends several provisions in the restricted persons statute to: require agencies to run a background check when returning a firearm to an individual from evidence; add dating relationships to the list of relationships that restrict a person convicted of assault or aggravated assault; provide that a person is not a restricted person for certain convictions after five years after a conviction; classify an alien in the state on a nonimmigrant visa in certain circumstances as a restricted person not able to possess, own, or purchase a firearm; require the Bureau of Criminal Identification to inform the local law enforcement agency with jurisdiction over a firearms dealer when a restricted person attempts to purchase a firearm from that dealer; clarify that a restricted person may not use an antique firearm for an activity regulated under the Wildlife Resources Code of Utah.

HB 226 Sale of a Firearm Amendments directs BCI to create an online process that allows an individual involved in the sale of a firearm to determine if the other party to the sale has a valid concealed carry permit or the firearm has been reported as stolen.

HB 300 Voluntary Firearm Restrictions Amendments creates a voluntary firearm restricted list under BCI and removes the requirement for BCI to enter the information received from an individual requesting to be placed on a voluntary firearm restricted list into the National Instant Criminal Background Check System.

HB 461 Airport Firearm Possession Amendments provides that a firearm that was seized as part of a criminal offense at an airport should be returned to the firearm's owner if it does not need to be retained. Restricts the ability of a prosecutor to seek the forfeiture of a firearm as part of any plea or settlement negotiation.

HB 485 Restricted Persons Amendments requires a defendant to sign a document acknowledging their restricted status and the 10-day time constraint they are under to relinquish all firearms. 

HB 507 Firearm Possession Revisions amends the definition of restricted person to someone who has completed a sentence for a felony conviction in the last three years.

Failed:

HB 86 Firearm Reporting Requirements passed the House vote but failed to receive funding for final passage. It would have required BCI to gather data on where restricted persons are obtaining firearms.

HB 89 Gun Safety Amendments sought to create a waiting period between the purchase of a firearm from a dealer and the delivery of the firearm to the purchaser as well as creating a third degree felony offense of willfully and intentionally making a false statement when applying for an exemption to the waiting period. 

HB 148 Firearm Amendments would have made it a class A misdemeanor to possess a firearm on which the identifying marks have been altered or removed. It also attempted to add possession of ammunition to the various penalties associated with firearm possession by a restricted person and required the Bureau of Criminal Identification to inform local law enforcement when a prohibited person attempts to purchase a firearm from a firearm dealer. It would have required firearm dealers to distribute a firearm safety brochure at the time of the transfer of a firearm and post a written notice of potential liability for the negligent storage of a firearm, the failure of which would be a class C misdemeanor. Another bill was introduced this session that would have made it a class A misdemeanor to possess a firearm on which the identifying marks have been altered or removed, SB 69 Firearm Identification Amendments, but neither of these bills were heard in committee.

HB 354 Firearm Access Amendments would have created a criminal penalty for firearm owners who fail to secure a firearm that is used by a restricted/at-risk person or a minor to commit a crime or injure someone. This offense would have been charged as one level below the offense charged against the restricted/at-risk person or minor. This bill failed to pass out of committee.

SB 68 Restricted Person Possession Amendments would have amended offenses related to a restricted person in possession of a dangerous weapon to include ammunition but failed to be heard in committee.

Inmates

Passed:

HB 111 Inmate Treatment Amendments requires a county or municipal jail to allow the continuation of medication assistance programs for inmates who were active clients prior to incarceration.

HB 259 Suicide Prevention in Correctional Facilities requires the Department of Public Safety to administer the Suicide Deterrence Grant Program to provide suicide barriers in county jails.

HB 368 Inmate Identification Amendments requires the Department of Corrections to assist inmates to obtain State identification cards and other forms of identification so they have them available when paroled.

HB 429 Pregnant and Postpartum Inmate Amendments further limits when restraints can be used on pregnant and postpartum inmates and requires correctional facilities to allow infants to remain with their mother for a minimum of 48 hours. It also creates the Incarcerated Mothers and Infants Program.

SB 188 Inmate Amendments requires the Department of Health and Human Services to establish a pilot program for medical monitoring and requires the notification of an inmate's designated medical contact in certain circumstances.

Failed:

HB 203 Inmate Education Amendments would have directed the Higher Education and Corrections Council to facilitate education for inmates in county jails, required the Utah Board of Higher Education to assign student success advisors to correctional facilities, removed provision requiring inmate to pay 50% of tuition at time of enrollment, and designated the inmate a state resident for tuition purposes. This bill had broad support but ran out of time for a final vote in the Senate.

HB 517 Inmate Program Amendments would have required the Sentencing Commission, the Board of Pardons and Parole, and the Department of Corrections to develop a procedure that would provide the department with the ability to determine an inmate's earliest estimated release date from a correctional facility. This bill would have also clarified inmate program requirements but failed to be assigned a standing committee in the Senate.

SB 145 Higher Education for Incarcerated Youth Program Amendments would have amended the Incarcerated Youth Program to include youth held in detention but was not assigned a standing committee in the House.

Judiciary/Procedural

Passed:

HB 46 Criminal Code Recodification and Cross References this year, which was a continuation of the effort to clean up, clarify, and reorganize the criminal code. Last session Chapter 76-5 was recodified and this bill focused on property offenses and Chapter 76-6. As a reminder, the statutes are being reorganized so that subsection 1 will always have definitions, subsection 2 will always contain the elements, subsection 3 will always include penalties, and subsections 4 and above will always include restrictions, limitations, defenses, and other miscellaneous provisions. If you have form motions that you’ve used that have referenced statutes in Chapter 76-6, you should make sure to review and update those references.

One of our top priority bills for our juvenile attorney this session was HB 60 Juvenile Justice Modifications, which amends statutes related to juvenile records. Specifically, it prohibits public employers from excluding applicants from initial interviews due to a juvenile delinquency adjudication; requires the State Board of Education to include information about dangerous weapons in an annual report on school discipline and law enforcement action; provides that a juvenile may petition the juvenile court for vacatur of the adjudication if the adjudication was for a violation of prostitution, aiding prostitution, sexual solicitation, or human trafficking for labor if the petitioner engaged in the human trafficking for labor while subject to force, fraud, or coercion; clarifies the court can expunge records of arrest, investigation, detention, delinquency petitions, and non judicial adjustments; allows for expungement of a petition found not true 30 days after the judicial decision; requires the court to consider certain factors before expunging if the person is a restricted person creates automatic expungement for records consisting solely of successful non judicial adjustments completed on or after October 1, 2023. The court received $566,100 in funding for implementation.

HB 174 Conviction Reduction Amendments allow a court to enter a judgment of conviction for a lower degree even though a defendant has not successfully completed probation. 

HB 192 Traffic Violation Amendments expands the availability of a deferred prosecution for certain traffic infractions to certain individuals if the individual completes a traffic school course as part of the deferred prosecution agreement.

HB 317 Pretrial Release Modifications also passed on the last day. This is a significant, and very defense-friendly bill that we pushed for much of the year. We hope that the language in this bill will help defense attorneys more effectively argue to get their clients released. It will also provide more opportunities during a case to address release. One bail bondsman-friendly provision may increase the use of monetary bail in some situations, but on the whole, it is a very helpful bill for indigent and private defendants. Specifically, the bill included the following provisions:

• Adds a definition for “material change in circumstances” as it relates to when a court should re-examine a person’s detention status.

• Currently, a judge is supposed to have a hearing and decide within 7-14 days whether to release a defendant while his or her case is pending.  After that, the judge is not supposed to change that decision unless there has been a “material change in circumstances,” but the definition of that term is currently unclear, so it is being interpreted differently by different judges.

• This provision specifically says a material change in circumstances exists when there is:

• Unreasonable delay in prosecution not attributable to the defense.

• A material change in risk that the individual poses due to passage of time or other relevant factors.

• A material change in the conditions of release or services reasonably available to the defendant.

• A willful or repeated failure to appear at court proceedings.

• Or other change materially related to risk of flight or anticipated criminal conduct on release. 

• Clarifies what factors should be considered when deciding whether an individual would constitute a substantial danger to the public.

• Clarifies that a judge is supposed to consider what conditions and restrictions could be put in place to reduce a person’s risk when deciding whether to release that person.

• Judges should already be doing this and many are, but the language is being strengthened and clarified.

• Clarifies that a judge shouldn’t base their decision to hold or release someone solely on the offense for which they are charged.

• Judges should already be doing this as well, but the language is being strengthened and clarified.

• The offense charged should be one of the factors in the decision, but it shouldn’t be the only thing the judge considers.  The judge must consider at least one other factor (except in death penalty cases).

• Provides that if a judge sets a bail amount when someone is arrested, if that person still hasn’t posted bail after being in jail for seven days, the judge should presume that the bail amount is unaffordable for that person.

• This applies when the judge or sheriff sets a bail amount to allow someone to be released by posting bail but that person can’t come up with the money after seven days.  If the person is still in jail after seven days, they can ask the judge to reconsider the amount of bail.  The new provision then tells the judge they should presume that the original bail amount was more than the person could afford.  The judge must then decide whether to reduce the bail or keep it the same amount.

• Allows a judge to issue a pretrial status order at a person’s initial appearance if appropriate, or delay it until a more thorough hearing can be conducted.

• Currently, if a judge issues a no bail warrant and a person finds out about it the person can call the court and schedule a court date to come in and take care of the warrant.  However, when the person voluntarily comes into court for their court date the judge has no choice but to arrest the person and schedule the detention hearing 7-14 days later. 

• Allows expedited appeal of a judge’s detention decision pending trial.

• This provision is intended to signal to the courts that if a person is held in jail and appeals his or her denial of bail, the courts should expedite the appeal in those circumstances. We expect the courts will then adjust the appellate rules to effectuate those expedited appeals. 

• It provides that the county sheriff or the sheriff’s designee is the person who sets bail at the time of booking.

• Currently, the statute requires the counties to use a “bail commissioner” to set bail amounts which in practice ends up being the sheriff or someone selected by the sheriff.  This bill simplifies the process and aligns the statute with current practice.

• It states that if a person was already released without bail and then failed to appear, then the judge should consider whether imposing a bail bond would increase the likelihood that the person will come to court.

• This provision only applies when a person is initially released by a judge without having to post bail, and then that person intentionally misses court or misses court more than once.

HB 330 Civil Commitment Amendments passed. The bill does a number of things: first, it limits the number of competency evaluators to one except in cases charging Capital offenses or where the court feels that two evaluators are necessary. The bill also specifies that the parties stipulation to the existence of a bona fide question as to a defendant's competency, standing alone, is not sufficient to warrant a competency evaluation. The bill reiterated the standard for competency and factors the evaluator may consider, where applicable, in assessing competency. The bill also allows the parties to retain their own evaluators, at the parties expense, to conduct competency evaluations.

HB 380 Competency to Stand Trial Amendments passed, prohibiting a court from granting a petition of incompetency based solely on the defendant having previously been released from custody due to incompetence in an unrelated criminal action. It adds certain things that must be considered in competency determinations, including the probable cause statement, prior health evaluations, and criminal history. We worked with the sponsor to add specific changes, one of which allows a court to rely on the competency determination of another court during simultaneous cases with the same individual. Another change we made removed the requirement that courts review the probable cause statement in competency determinations.

HB 383 Indigent Defense Amendments clarifies when a court may order indigent defense services and resources. It amends provisions related to the Indigent Aggravated Murder Defense Fund to allow an indigent defense service provider to file an ex parte motion in an aggravated murder case for an order for the payment of indigent defense resources not covered by the contract between the indigent defense service provider and the board.

We worked extensively on HB 385 Mentally Ill Offenders Amendments, which passed. The bill significantly modified the procedures associated with “Guilty and Mentally Ill” pleas. Under the new procedure, evaluators examine the defendant's state of mind at the time of the offense to determine whether the defendant suffered from a “mental condition” which was defined to focus primarily on psychotic disorders and intellectual disabilities. If the defendant is found to have suffered from a mental condition then, assuming competency, the defendant can enter a plea  of guilty with a mental condition. The court then stays imposition of sentence for 1 year and orders the defendant to participate in treatment. At the time of sentencing, in addition to traditional sentencing factors, the court is to consider the defendant's progress in treatment as well as whether any imposed sentence will place the defendant at risk for decompensation. The bill represents an improvement to Utah’s guilty and mentally ill statutory scheme and, along with bail, may be one of the most significant pieces of legislation passed this session.

HB 402 Extradition Tolling Amendments allows a defendant's waiver of extradition to be tolled if the defendant has criminal charges pending in the state of Utah. Utah cases must be resolved first before a person can be extradited to another state. 

HB 410 Insurance Amendments prohibits insurance credit when a risk is ceded to an out-of-state captive. It also permits the Department of Insurance to take action against licensees if the licensee enters a plea in abeyance to certain crimes.

HJR 2 Joint Resolution Amending Rules of Civil Procedure on Injunctions limits judicial injunctions and implements the same burden that is used in federal court, with its most controversial provision including a retroactivity clause. The bill was based on the court ruling injoining Utahs’ abortion trigger law following the Dobbs decision. Because of the large number of groups opposing this bill and because it is tangentially related to defense issues, we decided that this resolution was beyond our scope. 

HJR 26 Joint Resolution on Transit Operator Safety Awareness calls for perpetrators of assaults on transit workers to be prosecuted to the fullest extent of the law.

SB 15 Juvenile Offender Penalty Amendments clarifies that adult sentencing requirements apply to a youth who is transferred to the adult system. It does not change the improvements made to the law for delayed reporting.

SB 57 Sexual Abuse Material Amendments is a criminal discovery bill which prohibits the transmission of child pornography to defense counsel in discovery. The bill codifies what is actual practice in these cases. If defense counsel needs to view child pornography, they need to go to the RCFL or prosecutors office to do so.

SB 80 Driver License Suspension and Revocation Amendments allows a court to reinstate a person’s driving privileges if a person is participating in or has completed a “problem solving court program approved by the Judicial Council,” including a DUI or drug court program, and has elected to become an interlock restricted driver during the time frame of the prescribed suspension period.

SB 87 Criminal Prosecution Modifications requires the Administrative Office of the Courts to collect the following data on cases involving individuals charged with class A misdemeanors and felonies: the number of cases in which a preliminary hearing is set and placed on the court calendar; the median and range of the number of times that a preliminary hearing is continued in cases in which a preliminary hearing is set and placed on the court calendar; the number of cases, and the average time to disposition for those cases, in which only 1102 statements are submitted as probable cause at the preliminary hearing; the number of cases, and the average time to disposition for those cases, in which 1102 statements and witness testimony are submitted as probable cause at the preliminary hearing; the number of cases, and the average time to disposition for those cases, in which only witness testimony is submitted as probable cause at the preliminary hearing; and the number of cases in which a preliminary hearing is held and the defendant is bound over for trial.

SB 98 Legal Costs Recovery Amendments provides that it is the responsibility of the state (not the county) to pay costs associated with criminal cases that are picked up by the Attorney General’s office after the county attorney has declined to pursue them when the case ends up being dismissed or the defendant found not guilty.

SB 120 Property and Contraband Amendments amends provisions related to the seizure of property and contraband. The sponsor referenced that this bill is in response to the 2021 amendments to the Rules of Evidence made by the Utah Supreme Court, providing that evidence not needed after 90 days be disposed of or returned to its rightful owner. This bill establishes the procedure and timeframes for retaining and disposing of property seized in a misdemeanor investigation, with the intention that property will be returned to owners more quickly. It also establishes the requirements for preserving evidence from property or contraband that is not required to be retained by an agency. The bill is presently limited to disposition of evidence in misdemeanor cases. The disposition of felony evidence will likely be addressed in the interim.

SB 140 Adult Protective Services Amendments allows Adult Protective Services to issue an administrative subpoena during an investigation involving adults with limited capacity, instead of those lacking capacity.

SB 186 Juvenile Court Amendments clarifies that a request for restitution must be submitted to the court by the prosecuting attorney or victim’s attorney. The victim impact statement sent to probation by the victim does not constitute a request for restitution.

SB 218 Private Probation and Court Ordered Services Amendments prohibits private probation providers and other court ordered service providers from soliciting clients on court property. It requires a court that orders probation to make available to a defendant a list of private probation providers under certain circumstances and requires assessors to provide a list of licensed providers of required treatment and services. It also requires private probation providers to notify the court if the private probation provider is providing supervision services to a defendant and prohibits a private probation provider from simultaneously providing other services except in certain circumstances.

SB 224 Parental Liability Amendments provides that a parent or guardian is liable for the costs and damages sustained when a minor in their custody intentionally damages property with graffiti or commits a threat of terrorism.

SB 274 Regulations for Legal Services enacts provisions related to lawyer referral agencies and platforms. It amends provisions related to exceptions to a prohibition on kickbacks for certain activities an attorney may engage in, provides that certain providers of legal services owe a fiduciary duty to the person to whom legal services are provided, and creates a private right of action for a breach of certain fiduciary duties.

SB 290 Juvenile Court Modifications was a bill we brought to the sponsor. It amends the original jurisdiction of the juvenile court to include jurisdiction over a petition for special findings and allows for the juvenile court to enter an order with special findings regarding the abuse, neglect, or dependence of a non citizen child up to the age of 21. Previously, the law only covered juveniles up to the age of 18.

SJR 6 Joint Resolution Amending Rules of Procedure and Evidence Regarding Criminal Prosecutions provides that the findings of probable cause may be based on hearsay, but may not be based solely on hearsay evidence admitted under Rule 1102(b)(8) of the Utah Rules of Evidence. It requires that a prosecutor must disclose all evidence used in the information within five days after the prosecutor receives a request for discovery from the defendant. It also prohibits a prosecutor, or any staff for the office of the prosecutor, from drafting an 1102 statement for a witness or tampering with a witness in violation of Utah Code section 76-8-508, although they are still allowed to assist in drafting.

Failed:

HB 64 Waiver of Punitive Damages Amendments failed to be recommended to the full body of the House by committee. This bill would have prohibited courts from enforcing agreements to waive or limit liability for punitive damages.

HB 106 HIV Testing Modifications was not heard in committee. This bill would have created a process to obtain a court order if an alleged sexual offender refuses an HIV test at the request of an alleged victim. This bill will be back next session. It raises obvious 4th Amendment concerns in that there is not even probable cause required to believe the subject of the “order” has an STI.

HB 195 Criminal Investigations of School Employees would have required paid administrative leave for a school employee who is the subject of a criminal investigation. This bill passed the House vote but failed in the Senate.

HB 333 Sexual Abuse Statutes of Limitation sought to remove the criminal and civil statute of limitations for several sex offenses, including sexual abuse of a minor, forcible sexual abuse, sexual exploitation of a minor, aggravated sexual exploitation of a minor, sexual exploitation of a vulnerable adult, sexual extortion, incest, and human trafficking of a vulnerable adult. We strongly objected to this bill and the sponsor agreed to make several modifications. However, changes to the bill were unnecessary because the bill did not gain traction and was not heard in any committee.

HB 461 Airport Firearm Possession Amendments provides that a firearm that was seized as part of a criminal offense at an airport should be returned to the firearm's owner if it does not need to be retained. It restricts the ability of a prosecutor to seek the forfeiture of a firearm as part of any plea or settlement negotiation.

HB 473 Civil Commitment Examiner Requirements failed. This bill sought to add certain psychiatric mental health nurse practitioners and psychiatric mental health clinical nurse specialists to the use of the term "designated examiner.”

HB 485 Restricted Persons Amendments requires a defendant to sign a document acknowledging their restricted status and the 10-day time constraint they are under to relinquish all firearms.

HB 486 Joinder of Criminal Offenses - this was a bill proposed by the Attorney General’s Office following a ruling in State v. Lim. In the Lim case, the prosecution charged 3 counts of sexual abuse- counts separated by years. The court rules that the counts should have been severed. HB 486 was an attempt to statutorily modify the rules related to joinder and severance to make it easier to join offenses that are “similar,” “regardless of temporal proximity.” The bill was an end around of Rule 404(b)(c). Issues regarding joinder will likely be discussed in interim.

HB 552 Student Right to Counsel would have required an institution of higher education to allow certain parties to have legal representation at a disciplinary proceeding.

HJR 7 Proposal to Amend Utah Constitution - Legislative Power Relating to Civil Action for Child Sexual Abuse proposed to amend the Utah Constitution to provide that the legislative power of the state includes the power to provide for the revival of a cause of action for child sexual abuse after expiration of the cause of action due to a statute of limitations. This bill failed to be uncircled on the House floor.

SB 66 Criminal Citation Dismissals ran out of time for a final vote. This bill would have required that a court dismiss a citation that was issued in error.

SB 238 Court Fee Amendments would have allowed the Judicial Council to charge and collect a fee for credit card payments on fines and fees. This bill failed in the House due to the belief that credit card fees are already a part of the fines and fees charged to defendants.

Court Structuring

Passed:

HB 210 Justice Court Changes creates the Justice Court Reform Task Force. It also requires justice court judges to have a law school degree unless a county does not have at least 2 applicants that meet this requirement.

SB 129 Judiciary Amendments overhauls Utah’s judicial nomination process. It removes provisions that established the composition of judicial nominating committees. Under SB129 the Governor appoints the members of each judicial nominating committee. Procedural guardrails that guaranteed bipartisanship, the presence of lawyers on the nomination commissions and input from the State Bar. have been stripped out of the nominating process. The bill is a troubling development for the defense bar.

SB 220 Juvenile Court Judge Amendments increases the number of juvenile judges assigned to a certain judicial district from five to six.

Juvenile

Passed:

One of our top priority bills for our juvenile attorney this session was HB 60 Juvenile Justice Modifications, which amends statutes related to juvenile records. Specifically, it prohibits public employers from excluding applicants from initial interviews due to a juvenile delinquency adjudication; requires the State Board of Education to include information about dangerous weapons in an annual report on school discipline and law enforcement action; provides that a juvenile may petition the juvenile court for vacatur of the adjudication if the adjudication was for a violation of prostitution, aiding prostitution, sexual solicitation, or human trafficking for labor if the petitioner engaged in the human trafficking for labor while subject to force, fraud, or coercion; clarifies the court can expunge records of arrest, investigation, detention, delinquency petitions, and non judicial adjustments; allows for expungement of a petition found not true 30 days after the judicial decision; requires the court to consider certain factors before expunging if the person is a restricted person creates automatic expungement for records consisting solely of successful non judicial adjustments completed on or after October 1, 2023. The court received $566,100 in funding for implementation.

HB 61 School Safety Requirements creates the School Security Task Force. The original version of this bill required all secondary schools to have a school resource officer (SRO), but this was removed in the final language. Instead, the bill standardizes SRO guidelines. 

HB 122 Sex Offender Registry Amendments moves the registry requirements from the sentencing portion of the statute to the administrative section. It requires that any youth who register will be placed on a private registry and allows an offender under 21 years old whose conviction did not involve force or coercion to request a lifetime registration requirement be reduced to a ten-year requirement. This bill does NOT change which youth register.

HB 304 Juvenile Justice Revisions was one of our high priority issues. This bill designates existing funds for a juvenile gang and other violent crime prevention and intervention program; requires courts to notify schools and SROs about students that have committed violent felonies, weapons offenses, or are placed on probation; requires schools to create a reintegration plan for every student they receive a notification from court for; expands when a school can refer a case directly to law enforcement or court; allows for detention to be used for class C offenses and contempt of court for the substantive offense happening on school property; makes it a class B misdemeanor for a juvenile to possess a machine gun attachment; emphasizes reporting requirements on weapons brought to school; and modifies non judicial eligibility requirements, including adding to the list of offenses not eligible of NJ through probation. The original bill allowed detention to be used for status offenses (truancy) and the valid court order exception, allowed tobacco and truancy to be referred directly to law enforcement and court, and restricted NJA eligibility.

HB 400 School Absenteeism Amendments directs LEAs to include certain evidence-based strategies for children as part of their efforts to reduce student absenteeism. It amends the responsibilities of the Division of Juvenile Justice and Youth Services to require the use of evidence-informed and research-informed interventions.

HB 520 Child Welfare Changes would have amended the definition of “threatened harm” in the Juvenile code. 

SB 15 Juvenile Offender Penalty Amendments clarifies that adult sentencing requirements apply to a youth who is transferred to the adult system. It does not change the improvements made to the law for delayed reporting.

SB 49 Juvenile Custodial Interrogation Amendments changes the time police officers may detain youth in a law enforcement holding room from 2 to 4 hours. Creates youth specific Miranda warnings.

SB 67 Juvenile Commitment Amendments prohibits the extension of a juvenile offender's term of secure care for a misdemeanor offense if it would exceed a term of imprisonment for an adult for the same offense.

SB 186 Juvenile Court Amendments clarifies that a request for restitution must be submitted to the court by the prosecuting attorney or victim’s attorney. The victim impact statement sent to probation by the victim does not constitute a request for restitution.

SB 220 Juvenile Court Judge Amendments increases the number of juvenile judges assigned to a certain judicial district from five to six.

SB 290 Juvenile Court Modifications was a bill we brought to the sponsor. It amends the original jurisdiction of the juvenile court to include jurisdiction over a petition for special findings and allows for the juvenile court to enter an order with special findings regarding the abuse, neglect, or dependence of a non citizen child up to the age of 21. Previously, the law only covered juveniles up to the age of 18.

Failed:

HB 334 Health Education Amendments is the bill that Rep. Moss runs every year to require the State Board of Education to establish curriculum requirements that include instruction in sexual assault resource strategies, sexual violence behavior prevention, and the legal implications of electronically distributing sexually explicit images. This bill would have also required a local education agency to review data, including data on sexual assault, for each county and use the reviewed data to inform policies on health education. This bill faces insurmountable opposition each year, despite the Legislature’s willingness to criminalize many behaviors that are not taught in schools. This bill was held in committee.

HB 404 Juvenile Interrogation Modifications would have allowed for the virtual presence of a parent, guardian, or friendly adult in the interrogation of a child and required a law enforcement agency to make an audio or visual recording of an interrogation of a child. Our juvenile attorney was involved in this effort but the bill ran out of time to be heard in the Senate.

HB 434 Parent and Student Rights and School Safety Amendments would have clarified that a school may share certain information regarding an incident of bullying, cyber-bullying, hazing, abusive conduct, or retaliation with a parent. It also required a school to provide regular communication updates to a parent regarding the implementation of an action plan to address these incidents. This bill was never heard in committee. 

HB 536 Student Drug Possession Amendments would have required an LEA to amend their conduct and discipline policies to address the possession or use of certain tobacco or nicotine products. It sought to allow a school to issue a citation to a student who possesses a tobacco product, an electronic cigarette product, or a nicotine product on school property.

SB 145 Higher Education for Incarcerated Youth Program Amendments would have amended the Incarcerated Youth Program to include youth held in detention but was not assigned a standing committee in the House.

SB 163 Child Welfare Modifications provides that it is the public policy of the state that a parent retains the right to have contact with a child when the child is placed outside of the home and that a child has the right to have contact with siblings when the child is separated from them. It directs a juvenile court to make certain findings regarding parent-time and requires that parent-time be under the least restrictive conditions necessary to protect the child.

Law Enforcement

Passed:

HB 57 Law Enforcement Investigation Amendments addresses the use of reverse-location or geofence warrants. Specifically, it creates a three-step process for law enforcement to generate geofence-retrieved information, each step of which must be approved by a magistrate. It also establishes law enforcement reporting requirements for reverse-location warrants. While we do not support the implicit legitimization of geofence warrants, we do think that this is an improvement from current practice.

HB 61 School Safety Requirements creates the School Security Task Force. The original version of this bill required all secondary schools to have a school resource officer (SRO), but this was removed in the final language. Instead, the bill standardizes SRO guidelines.

HB 199 Voluntary Firearm Safekeeping Amendments prohibits a law enforcement agency that receives a firearm from the owner or the owner's cohabitant for safekeeping from returning the firearm to the owner if the owner: is a restricted person; or has been arrested and booked into jail on a class A misdemeanor or felony domestic violence offense, has had a court review the probable cause statement and determine that probable cause existed for the arrest, and is subject to a jail release agreement or a jail release court order. This bill also directs the Department of Public Safety to create a pamphlet detailing a domestic violence victim's rights to commit the perpetrator's firearm to a law enforcement agency.

HB 223 Drug and Alcohol Enforcement Amendments requires the Department of Public Safety to have ten law enforcement officers with a primary focus on drug-related offenses.

HB 236 Driving Under the Influence Testing Amendments gives law enforcement civil and criminal immunity to liability from drawing a blood sample from a person suspected of DUI if the blood is drawn in a secure area within a law enforcement facility with a valid warrant or consent.

HJR 10 Proposal to Amend Utah Constitution - Election of County Sheriffs amends the Utah Constitution to establish the office and term of a county sheriff.

SB 49 Juvenile Custodial Interrogation Amendments changes the time police officers may detain youth in a law enforcement holding room from 2 to 4 hours. Creates youth specific Miranda warnings.

SB 101 Peace Officer Training Amendments requires a police officer's basic training to include training on identifying, responding to, and reporting a criminal offense that is motivated by certain personal attributes.

SB 117 Domestic Violence Amendments requires a law enforcement officer to conduct a lethality assessment when responding to a report of domestic violence between intimate partners. It requires this lethality assessment to be submitted to the Department of Public Safety along with the probable cause statement and incident report. It also includes the lethality assessment as part of the information that may be considered as part of pretrial and presentencing processes. While we had concerns about the efficacy of lethality assessments, we didn’t have enough support to oppose this bill outright.

SB 124 Law Enforcement Officer Amendments requires a law enforcement agency to use an early intervention system, as well as requiring agencies to perform background checks on any law enforcement officer they hire. It also authorizes POST to discipline a chief executive who fails to report misconduct with a Letter of Caution or suspension/revocation of their certification. We have previously worked on the issue of police discipline standardization with the sponsor, however, the version of the bill that passed this year is markedly different from past versions we were involved in. Although these aren’t the reforms we brought to the sponsor, we still think it’s a step in the right direction and plan to look for more reforms in this area going forward.

SB 148 Invisible Condition Information Amendments creates the invisible condition alert program. It requires DPS to ensure that an individual's information in the invisible condition alert program is immediately available to a dispatcher.

SB 156 Investigative Genetic Genealogy Modifications allows for the use of genetic genealogy information by law enforcement when the user gives consent. It excludes the private databases of companies like 23andMe and Ancestry.com. 

SB 226 Electronic Information or Data Privacy Act Amendments specifies the types of electronic data that can be collected by law enforcement without a warrant. It also states that the automobile exception to the warrant requirement is inapplicable to electronic data stored on devices found in a car.

Failed:

HB 29 Mental Health Support and Law Enforcement Co-response would have required the Division of Integrated Healthcare to establish a grant program to fund best practice crisis intervention teams and required the tracking and reporting of activities and outcomes funded through the grant program. This bill passed the House vote but failed to receive funding for final passage.

HB 96 Peace Officer Training Amendments was not heard in committee. This bill would have required a portion of a police officer's basic training to include certain subjects involving victim targeting.

HB 158 Electronic Information or Data Privacy Act Modifications would have allowed law enforcement to subpoena stored or transmitted data from an electronic device if the electronic data is an audio or video surveillance recording. Prosecution groups asked for this bill as a fix for law enforcement releasing evidence to them, but we had concerns with this process occurring as a subpoena instead of a warrant. We worked with the sponsor to exclude house surveillance recordings from this bill, but despite the amendments made by the sponsor to reach a compromise, the bill was voted down in committee.

HB 168 License Plate Reader Systems Amendments was never heard in committee. This bill sought to allow a law enforcement agency to use license plate reading technology gathered by a private entity in certain circumstances.

HB 404 Juvenile Interrogation Modifications would have allowed for the virtual presence of a parent, guardian, or friendly adult in the interrogation of a child and required a law enforcement agency to make an audio or visual recording of an interrogation of a child. Our juvenile attorney was involved in this effort but the bill ran out of time to be heard in the Senate.

HB 521 Correction Officer Amendments would have modified provisions relating to the designation and duties of officers within the Department of Corrections. This bill was not pursued by the sponsor this session, but we do expect to see this bill introduced next session.

HB 551 Bias Incident Reporting directs the Department of Public Safety to create the bias incident hotline program. "Bias incident" is defined as a hostile expression of animus by an individual toward another individual that does not rise to the level of a criminal offense.

Property and Theft

Passed:

HB 28 Arson Amendments amends the definition of "habitable structure" to mean a structure that has the apparent purpose of or is used for lodging or assembling persons or conducting business, whether a person is actually present or not.

HB 114 Theft Defense Amendments provides that it is not a defense to theft of livestock or a domestic animal that the livestock or domestic animal is sick, injured, or a liability to the owner.

HB 208 Criminal Trespass Amendments creates the class B misdemeanor offense of criminal trespass for those who step out of a boat onto a stream bed or stream bank.

HB 313 Suspect Metal Amendments adds the theft of 25 pounds of a suspect metal item to the list of offenses that can be charged as a third degree felony. It was substituted on the Senate floor to exclude lead batteries from the increased penalty. We spoke against this bill in both of its committee hearings, testifying that raising the penalty would not serve as a deterrent and the bill does not target those committing the theft, just those in possession. Despite our testimony, the bill passed both bodies.

HB 370 Utility Infrastructure Amendments makes the criminal offense of destroying, damaging, or tampering with a critical infrastructure facility a first degree felony if done intentionally and knowingly or a second degree if done recklessly. It also makes it a criminal offense to impersonate a critical infrastructure facility officer or employee, a violation of which is a class A misdemeanor but can be charged as a third degree felony if the actor intends to commit terrorism or sabotage. We worked with the sponsor and representatives from  energy and power companies to include language requiring widespread damage or injury for the heightened penalty to apply. Although we still had concerns about the bill, we didn’t outrightly oppose the substitute that made this change.

SB 219 Criminal Privacy Violation Amendments- the Skinwalker Ranch bill- expands the class B misdemeanor offense of privacy violation to include using advanced technological instrumentality to detect, observe, measure, map, or otherwise capture information or data about the property or characteristics of the property of another for which the property owner has an expectation of privacy.

Protective Orders

Passed:

HB 53 Protective Order Amendments amends expiration provisions for pretrial protective orders to clarify that they expire on the earliest of: the day on which the court dismisses the case; the day on which the court dismisses the pretrial protective order; or the day on which the alleged perpetrator is served with an order. This bill also provides that defendants involved in a jail release agreement or jail release court order can enter onto the premises of the alleged victim’s residence if accompanied by a police officer that has notified the alleged victim. 

HB 324 Workplace Violence Protective Orders Amendments creates workplace violence protective orders, the violation of which is a class A misdemeanor. 

HB 509 Criminal Protective Order Amendments allows a victim to request a hearing regarding a continuous protective order for domestic violence and defines criminal protective order hearings as "important criminal justice hearings," thereby requiring prosecutors to use reasonable efforts to notify the victim of any such hearing requested by the defendant.

Records, Data, and DNA

Passed:

HB 18 Online Dating Safety Amendments requires online dating services to clearly and conspicuously disclose whether or not they conduct criminal background checks on site members.

HB 57 Law Enforcement Investigation Amendments addresses the use of reverse-location or geofence warrants. Specifically, it creates a three-step process for law enforcement to generate geofence-retrieved information, each step of which must be approved by a magistrate. It also establishes law enforcement reporting requirements for reverse-location warrants. While we do not support the implicit legitimization of geofence warrants, we do think that this is an improvement from current practice.

HB 181 Offender Employment Amendments requires the Department of Workforce Services to create and maintain a web portal through which a business may post job opportunities available to individuals with criminal histories and related employment information.

HB 225 Firearm Possession Amendments amends several provisions in the restricted persons statute to: require agencies to run a background check when returning a firearm to an individual from evidence; add dating relationships to the list of relationships that restrict a person convicted of assault or aggravated assault; provide that a person is not a restricted person for certain convictions after five years after a conviction; classify an alien in the state on a nonimmigrant visa in certain circumstances as a restricted person not able to possess, own, or purchase a firearm; require the Bureau of Criminal Identification to inform the local law enforcement agency with jurisdiction over a firearms dealer when a restricted person attempts to purchase a firearm from that dealer; clarify that a restricted person may not use an antique firearm for an activity regulated under the Wildlife Resources Code of Utah.

HB 226 Sale of a Firearm Amendments directs BCI to create an online process that allows an individual involved in the sale of a firearm to determine if the other party to the sale has a valid concealed carry permit or the firearm has been reported as stolen.

HB 247 Alcohol Control Amendments makes it a class B misdemeanor to knowingly alter or destroy a record relevant to an official proceeding under the Alcoholic Beverage Control Act. It also requires certain licensees under the Alcoholic Beverage Control Act to, after receiving notice of a certain civil or criminal action, retain records relevant to the action. It describes the circumstances under which there is prima facie evidence that a person is liable for an injury or death that results from the intoxication of another individual.

HB 284 Public Library Background Check Requirements prohibits a public library from receiving state funds unless the library implements a policy providing for criminal background checks of employees.

HB 300 Voluntary Firearm Restrictions Amendments creates a voluntary firearm restricted list under BCI and removes the requirement for BCI to enter the information received from an individual requesting to be placed on a voluntary firearm restricted list into the National Instant Criminal Background Check System.

HB 468 Employment Screening Requirements prohibits some public employers from considering certain arrests or criminal convictions or participation in substance use treatment when hiring a mental health professional. It also prohibits a private employer from excluding an applicant from an interview for a juvenile adjudication, certain arrests, or an expunged criminal offense. It requires the office to conduct a comprehensive review of an applicant's background check if the applicant is applying to work in a program as a peer support provider or mental health professional.

SB 124 Law Enforcement Officer Amendments requires a law enforcement agency to use an early intervention system, as well as requiring agencies to perform background checks on any law enforcement officer they hire. It also authorizes POST to discipline a chief executive who fails to report misconduct with a Letter of Caution or suspension/revocation of their certification. We have previously worked on the issue of police discipline standardization with the sponsor, however, the version of the bill that passed this year is markedly different from past versions we were involved in. Although these aren’t the reforms we brought to the sponsor, we still think it’s a step in the right direction and plan to look for more reforms in this area going forward.

SB 132 Driving Privilege Card Fingerprinting Requirements allows an approved private fingerprint vendor to take and submit digital fingerprint scans and a photograph of an applicant to BCI for driving privilege card purposes. We testified in support of this bill to ensure that we reduced the amount of driving on suspended license charges.

SB 148 Invisible Condition Information Amendments creates the invisible condition alert program. It requires DPS to ensure that an individual's information in the invisible condition alert program is immediately available to a dispatcher.

SB 156 Investigative Genetic Genealogy Modifications allows for the use of genetic genealogy information by law enforcement when the user gives consent. It excludes the private databases of companies like 23andMe and Ancestry.com.

SB 226 Electronic Information or Data Privacy Act Amendments specifies the types of electronic data that can be collected by law enforcement without a warrant. It also states that the automobile exception to the warrant requirement is inapplicable to electronic data stored on devices found in a car.

SB 231 Government Records Access and Management Act Amendments provides that a governmental entity is not required to create a document indicating that a requested record does not exist. It also provides that a governmental entity's failure to provide access to a record is not an access denial if the governmental entity does not retain the record.

SB 246 Accident Report Access Amendments makes it a class A misdemeanor to use information in an accident report to market legal services.

SB 250 Public Surveillance Amendments prohibits a governmental entity from implementing technologies to create a public network of surveillance footage or to contract with a private entity to gather surveillance footage.

SB 262 Government Records Amendments establishes a process for a governmental entity to petition for relief against a vexatious requester.

Failed:

HB 97 Government Records Access Amendments would have created the class B misdemeanor offense of an officer or employee of a governmental entity refusing to conduct a record search after the governmental entity requests one. This bill was not heard in committee.

HB 158 Electronic Information or Data Privacy Act Modifications would have allowed law enforcement to subpoena stored or transmitted data from an electronic device if the electronic data is an audio or video surveillance recording. Prosecution groups asked for this bill as a fix for law enforcement releasing evidence to them, but we had concerns with this process occurring as a subpoena instead of a warrant. We worked with the sponsor to exclude house surveillance recordings from this bill, but despite the amendments made by the sponsor to reach a compromise, the bill was voted down in committee.

HB 279 DNA Collection Amendments would have required DNA to be collected from human remains that will be destroyed. This bill was strongly opposed by most legislators and was held in committee.

HB 387 Suspended Driver License Appeals Amendments would have required certain evidence be provided before the administrative hearing to a person accused of a DUI, including all video and audio recordings of the investigation and chemical test. It also provided a time period of 10 days for a police officer to submit these and the citation to the DLD and made them protected records.

SB 58 Background Check Amendments would have reduced the time period within which a law enforcement agency must expunge criminal records if the records qualify for automatic expungement. There were concerns from law enforcement agencies that this wasn’t going to be possible, but we believe that the deadlines provided were within reason and hope to see this bill again next year.

SB 110 Background Check Modifications was never heard in committee but would have required anyone considering working or volunteering and anyone already working or volunteering with children to get a background check every 60 months.

SB 282 Sex and Kidnap Offender Registry Access Amendments was never heard in committee. This bill would have required the Department of Corrections to make certain information searchable on the Sex Offender and Kidnap Offender Notification and Registration website, excluding the name or other identifying information of the offender.

SB 299 Family Planning Data Privacy Amendments was not heard in committee. This bill sought to prohibit government entities from, in the course of an investigation into a potential violation of or prosecution of state law, seeking or using reproductive health data, except with the consent of the consumer.

Restitution

Passed:

HB 50 Criminal Financial Obligation Amendments clarifies certain procedures related to the collection of restitution. Much of the modified portions relate to the collection of restitution after matters are referred to state debt collection. The bill clarifies that restitution should be determined as early as possible in order to avoid, as much as possible, untimely orders of restitution that would extend the term of probation or alter the terms of a plea in abeyance.

SB 186 Juvenile Court Amendments clarifies that a request for restitution must be submitted to the court by the prosecuting attorney or victim’s attorney. The victim impact statement sent to probation by the victim does not constitute a request for restitution.

SB 224 Parental Liability Amendments provides that a parent or guardian is liable for the costs and damages sustained when a minor in their custody intentionally damages property with graffiti or commits a threat of terrorism.

Failed:

HB 456 Restitution Amendments addresses restitution owed by a defendant to an individual for financial support that a deceased or incapacitated victim had a legal obligation to provide to any dependent at the time of the defendant's criminal conduct. The defense bar voiced strong objections to the bill as drafted. We will see it again.

Sex Offenses and Registry

Several bills were run this session that would affect registrants or their registration requirements:

Passed:

HB 99 Sex Offender Restrictions Amendments increases the penalty for repeat offenders of sex offender registry location restrictions from a class A misdemeanor to a third degree felony.

HB 122 Sex Offender Registry Amendments moves the registry requirements from the sentencing portion of the statute to the administrative section. It requires that any youth who register will be placed on a private registry and allows an offender under 21 years old whose conviction did not involve force or coercion to request a lifetime registration requirement be reduced to a ten-year requirement. This bill does NOT change which youth register.

HB 139 Sex and Kidnap Offender Registry Requirements provides that an offender must comply with registration requirements in Utah if they have been here for at least 183 days in a year for two consecutive years.

HB 146 Sex Offender Restricted Area Amendments passed. The final version of this bill restricts individuals on the sex offender registry from entering a homeowners' association swimming pool, park, or playground. We negotiated with the sponsor to exclude the bill’s applicability to 55+ community areas when no children are present. We also narrowed the scope of the original bill to exclude state parks. SB 191 Condominium and Community Association Amendments doesn’t affect criminal penalties, but circumvents our negotiation with the sponsor of HB 146 to permit an association of unit owners or community association to adopt a rule restricting sex offenders from certain areas the association maintains, operates, or owns.

Failed:

SB 134 Sex and Kidnap Offender Registry Amendments sought to allow an offender convicted of a felony enticing a minor crime to be removed from the Sex and Kidnap Offender Registry after ten years. We spoke in support of this bill during its committee hearings and tried to get it passed on the last day of the session, but it was circled on its third reading in the House and they concluded the session without voting on it.

SB 282 Sex and Kidnap Offender Registry Access Amendments was never heard in committee. This bill would have required the Department of Corrections to make certain information searchable on the Sex Offender and Kidnap Offender Notification and Registration website, excluding the name or other identifying information of the offender.

Other bills pertaining to sex offenses:

Passed:

HB 108 Child Sex Doll Prohibition creates the class A misdemeanor offense of possessing a child sex doll and the third degree felony offense of purchasing or distributing a child sex doll.

HB 268 Sex Offense Amendments creates the Sex Offense Management Board to advise the Department of Corrections on evidence-based approaches to supervision. Membership includes a criminal defense attorney and a person previously convicted of a sex offense.

HB 297 Victim Services Amendments requires CCJJ and law enforcement agencies to compile data on sexual assaults. It restricts the time period in which a victim of rape or incest can get an abortion to 18 weeks and makes performing an abortion on a victim of rape or incest after 18 weeks a second degree felony.

SB 57 Sexual Abuse Material Amendments is a criminal discovery bill which prohibits the transmission of child pornography to defense counsel in discovery. The bill codifies what is actual practice in these cases. If defense counsel needs to view child pornography, they need to go to the RCFL or prosecutors office to do so.

SB 169 Enticement of a Minor Amendments expands the offense of enticing a minor to include developing a "relationship of trust with the minor or the minor's parent or guardian with the intent to solicit, seduce, lure, or entice, or attempt to solicit, seduce, lure, or entice the minor to engage in sexual activity that is a violation of state criminal law." It also amends the definition of text messaging to include communication from any electronic communication device and amends previous sex offenses that can be used to enhance a new offense to remove over the internet from the felony offense of enticing a minor. The bill will have an impact on sting cases involving the newest sting script protocol- the father who is offering his child for sex with adults.

Failed:

HB 106 HIV Testing Modifications was not heard in committee. This bill would have created a process to obtain a court order if an alleged sexual offender refuses an HIV test at the request of an alleged victim. This bill will be back next session. It raises obvious 4th Amendment concerns in that there is not even probable cause required to believe the subject of the “order” has an STI.

HB 333 Sexual Abuse Statutes of Limitation sought to remove the criminal and civil statute of limitations for several sex offenses, including sexual abuse of a minor, forcible sexual abuse, sexual exploitation of a minor, aggravated sexual exploitation of a minor, sexual exploitation of a vulnerable adult, sexual extortion, incest, and human trafficking of a vulnerable adult. We strongly objected to this bill and the sponsor agreed to make several modifications. However, changes to the bill were unnecessary because the bill did not gain traction and was not heard in any committee.

HB 356 Abortion Modifications would have allowed a victim of rape or incest who is seeking an abortion to file a restricted law enforcement report in order to comply with the physician reporting requirements. It also would have allowed the victim to make a non-binding request that law enforcement not pursue charges or investigate such a report. This bill was never heard in committee.

HB 526 Unlawful Kissing of a Minor attempted to add forcibly kissing a child to the list of actions that may qualify as sexual abuse of a child. This bill failed to be assigned a standing committee. 

HJR 7 Proposal to Amend Utah Constitution - Legislative Power Relating to Civil Action for Child Sexual Abuse proposed to amend the Utah Constitution to provide that the legislative power of the state includes the power to provide for the revival of a cause of action for child sexual abuse after expiration of the cause of action due to a statute of limitations. This bill failed to be uncircled on the House floor.

SB 178 Sexual Assault Modifications passed the Senate vote but failed to be recommended to the House floor. The original version of this bill sought to add the removal of a sexually protective device to the consent statute. The most recent version created a new class A misdemeanor offense of nonconsensual removal of a sexually protective device. This offense would have been charged as a third degree felony if the victim became pregnant or contracted an STI. Defense and other criminal justice stakeholders were very opposed to this bill and spoke against the bill in the House Law Enforcement Committee which voted against the bill.  The sponsor then attempted to insert the bill's language to another bill but was unsuccessful.  We anticipate seeing this bill again.

Task Forces and other Entities

Passed:

HB 23 Forensic Mental Health Amendments authorizes the Forensic Mental Health Coordinating Council to determine and collect data from the Department of Corrections regarding mental health services.

HB 43 Domestic Violence Modifications creates the Domestic Violence Data Task Force under the Department of Public Safety, a member of which will be appointed by UACDL. 

HB 47 Criminal Code Evaluation Task Force Sunset Extension extends the Criminal Code Evaluation Task Force repeal date to 2028. One of our attorneys is a member of this task force. This task force introduced and passed HB 46 Criminal Code Recodification and Cross References this year, which is a continuation of the effort to clean up, clarify, and reorganize the criminal code. Last session Chapter 76-5 was recodified and this bill focused on property offenses and Chapter 76-6. As a reminder, the statutes are being reorganized so that subsection 1 will always have definitions, subsection 2 will always contain the elements, subsection 3 will always include penalties, and subsections 4 and above will always include restrictions, limitations, defenses, and other miscellaneous provisions. If you have form motions that you’ve used that have referenced statutes in Chapter 76-6, you should make sure to review and update those references.

HB 210 Justice Court Changes creates the Justice Court Reform Task Force. It also requires justice court judges to have a law school degree unless a county does not have at least 2 applicants that meet this requirement.

HB 244 Utah Victim Services Commission and Victim Services creates the Utah Victim Services Commission within CCJJ, a member of which is a criminal defense attorney. We had originally negotiated with the sponsor to include both a criminal defense attorney and a member of the Indigent Defense Commission, but the IDC was taken out of the final version without our knowledge.

HB 246 Board of Pardons and Parole Amendments requires the Board of Pardons and Parole to prioritize public safety when making a decision about an offender.

HB 268 Sex Offense Amendments creates the Sex Offense Management Board to advise the Department of Corrections on evidence-based approaches to supervision. Membership includes a criminal defense attorney and a person previously convicted of a sex offense. 

HB 362 Criminal Justice Data Management Task Force Sunset Extension extends the Criminal Justice Data Management Task Force sunset date to 2025. Defense attorneys are not members of this task force.

Failed:

HB 479 Corrections Task Force would have created the Corrections Task Force, membership of which included Corrections, law enforcement, and inmate and victim advocates. This bill was never heard in committee.

HB 501 Legal Services Amendments would have created the Innovations in Legal Services Advisory Council to study the regulatory sandbox program established by the Utah Supreme Court and report and make recommendations to the Legislature and the Utah Supreme Court related to the council's activities. However, this bill was never heard in committee.

HB 561 Department of Health and Human Services Procurement Amendments would have provided that the Department of Health and Human Services procurement advisory council shall recommend that the executive director debar or suspend a person for award of contracts for a human services procurement item if the person is convicted of a criminal offense. This bill was never assigned a standing committee in the Senate.

Traffic and Traffic Offenses

Passed:

HB 55 Off-highway Vehicle Registration Requirements creates the infraction offense of renting an off-highway vehicle to an individual without a certificate of completion of the off-highway vehicle safety education and training program.

HB 192 Traffic Violation Amendments expands the availability of a deferred prosecution for certain traffic infractions to certain individuals if the individual completes a traffic school course as part of the deferred prosecution agreement.

HB 258 Motor Vehicle Light Amendments amends the infraction offense associated with vehicle lights to require lights on from sunset to sunrise, regardless of automated settings.

HB 375 Traffic Violation Exemptions provides an exemption to a citation related to a motor vehicle if the person provides evidence that they were not the owner of the relevant vehicle at the time of the alleged violation.

SB 27 Transportation Revisions creates the infraction offense of passing a snowplow when it is flashing yellow lights.

SB 85 License Plate Requirement Amendments expands the infraction offense associated with license plate readability to include adding a tinted or clear cover that obscures the readability of the license plate.

SB 132 Driving Privilege Card Fingerprinting Requirements allows an approved private fingerprint vendor to take and submit digital fingerprint scans and a photograph of an applicant to BCI for driving privilege card purposes. We testified in support of this bill to ensure that we reduced the amount of driving on suspended license charges.

Failed:

HB 168 License Plate Reader Systems Amendments was never heard in committee. This bill sought to allow a law enforcement agency to use license plate reading technology gathered by a private entity in certain circumstances.

HB 336 Distracted Driving Amendments tried to prohibit any use of a mobile device while driving unless it is hands-free. It also tried to lower the offense of using a phone to read/write messages or record videos from a class C misdemeanor to an infraction. The sponsor runs this bill almost every year with very little support and this year the bill was never heard in committee.

SB 105 Traffic Enforcement Amendments would have created the speed safety camera pilot program that would use a speed safety camera without a police officer present. This bill was opposed by most legislators in the House and was never uncircled on the House floor.

Victims

Passed:

HB 199 Voluntary Firearm Safekeeping Amendments prohibits a law enforcement agency that receives a firearm from the owner or the owner's cohabitant for safekeeping from returning the firearm to the owner if the owner: is a restricted person; or has been arrested and booked into jail on a class A misdemeanor or felony domestic violence offense, has had a court review the probable cause statement and determine that probable cause existed for the arrest, and is subject to a jail release agreement or a jail release court order. This bill also directs the Department of Public Safety to create a pamphlet detailing a domestic violence victim's rights to commit the perpetrator's firearm to a law enforcement agency.

HB 244 Utah Victim Services Commission and Victim Services creates the Utah Victim Services Commission within CCJJ, a member of which is a criminal defense attorney. We had originally negotiated with the sponsor to include both a criminal defense attorney and a member of the Indigent Defense Commission, but the IDC was taken out of the final version without our knowledge.

HB 297 Victim Services Amendments requires CCJJ and law enforcement agencies to compile data on sexual assaults. It restricts the time period in which a victim of rape or incest can get an abortion to 18 weeks and makes performing an abortion on a victim of rape or incest after 18 weeks a second degree felony.

HB 314 Remedies for Victims of Domestic Violence Amendments allows victims of domestic violence to terminate their rental agreements with a lower termination fee and get an expungement for an eviction.

HB 509 Criminal Protective Order Amendments allows a victim to request a hearing regarding a continuous protective order for domestic violence and defines criminal protective order hearings as "important criminal justice hearings," thereby requiring prosecutors to use reasonable efforts to notify the victim of any such hearing requested by the defendant.

SB 293 Expungement Revisions provides that if there is a victim of an offense, the victim may object to a petition to expunge within 60 days.

Failed:

HB 106 HIV Testing Modifications was not heard in committee. This bill would have created a process to obtain a court order if an alleged sexual offender refuses an HIV test at the request of an alleged victim. This bill will be back next session. It raises obvious 4th Amendment concerns in that there is not even probable cause required to believe the subject of the “order” has an STI.

HB 356 Abortion Modifications would have allowed a victim of rape or incest who is seeking an abortion to file a restricted law enforcement report in order to comply with the physician reporting requirements. It also would have allowed the victim to make a non-binding request that law enforcement not pursue charges or investigate such a report. This bill was never heard in committee.

SB 88 Abortion Amendments would have removed the provision requiring a physician to verify a report has been made to law enforcement before the physician performs an abortion on a woman who is pregnant as a result of rape or incest. This bill failed in committee.