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:  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.