Bill Summary – FastDemocracy

LEGISLATIVE GENERAL COUNSEL                                               H.B. 148
Approved for Filing: J. Rogers 6
         6 12-29-22 10:35 AM 6
                                   FIREARM AMENDMENTS
                                       2023 GENERAL SESSION
                                           STATE OF UTAH
                                  Chief Sponsor: Brian S. King
                                 Senate Sponsor: ____________
 6
 LONG TITLE
 General Description:
        This bill amends provisions relating to firearms and ammunition.
 Highlighted Provisions:
        This bill:
        < defines terms;
        < amends offenses related to a restricted person in possession of a dangerous weapon
 to include ammunition;
        < makes possession of a firearm on which the identifying marks have been altered or
 removed a crime;
        < requires the Bureau of Criminal Identification to inform local law enforcement
 when a prohibited person attempts to purchase a firearm from a firearm dealer;
        < requires a firearm dealer to distribute a firearm safety brochure at the time of the
 transfer of a firearm;
        < requires a firearm dealer to post a written notice of potential liability for the
 negligent storage of a firearm and provides a penalty for failure to post the notice;
 and
        < makes technical and conforming changes.
 Money Appropriated in this Bill:
                                                                                                     H.B. 148
        None
 Other Special Clauses:
     *HB0148*
       H.B. 148                                                                   12-29-22 10:35 AM
        None
 Utah Code Sections Affected:
 AMENDS:
        76-3-203.5, as last amended by Laws of Utah 2022, Chapters 181, 185 and 418
        76-10-503, as last amended by Laws of Utah 2021, Chapter 262
        76-10-522, as last amended by Laws of Utah 1993, Chapter 234
        76-10-526, as last amended by Laws of Utah 2021, Chapters 166, 277
        76-10-532, as last amended by Laws of Utah 2015, Chapter 37
        76-10-1602, as last amended by Laws of Utah 2022, Chapters 181, 185
 ENACTS:
        76-10-527.5, Utah Code Annotated 1953
39
 Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 76-3-203.5 is amended to read:
        76-3-203.5. Habitual violent offender -- Definition -- Procedure -- Penalty.
        (1) As used in this section:
        (a) "Felony" means any violation of a criminal statute of the state, any other state, the
 United States, or any district, possession, or territory of the United States for which the
 maximum punishment the offender may be subjected to exceeds one year in prison.
        (b) "Habitual violent offender" means a person convicted within the state of any violent
 felony and who on at least two previous occasions has been convicted of a violent felony and
 committed to either prison in Utah or an equivalent correctional institution of another state or
 of the United States either at initial sentencing or after revocation of probation.
        (c) "Violent felony" means:
        (i) any of the following offenses, or any attempt, solicitation, or conspiracy to commit
 any of the following offenses punishable as a felony:
        (A) aggravated arson, arson, knowingly causing a catastrophe, and criminal mischief,
 Chapter 6, Part 1, Property Destruction;
        (B) assault by prisoner, Section 76-5-102.5;
        (C) disarming a police officer, Section 76-5-102.8;
        (D) aggravated assault, Section 76-5-103;
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        (E) aggravated assault by prisoner, Section 76-5-103.5;
        (F) mayhem, Section 76-5-105;
        (G) stalking, Subsection 76-5-106.5(2);
        (H) threat of terrorism, Section 76-5-107.3;
        (I) aggravated child abuse, Subsection 76-5-109.2(3)(a) or (b);
        (J) commission of domestic violence in the presence of a child, Section 76-5-114;
        (K) abuse or neglect of a child with a disability, Section 76-5-110;
        (L) abuse or exploitation of a vulnerable adult, Section 76-5-111, 76-5-111.2,
 76-5-111.3, or 76-5-111.4;
        (M) endangerment of a child or vulnerable adult, Section 76-5-112.5;
        (N) criminal homicide offenses under Chapter 5, Part 2, Criminal Homicide;
        (O) kidnapping, child kidnapping, and aggravated kidnapping under Chapter 5, Part 3,
 Kidnapping, Trafficking, and Smuggling;
        (P) rape, Section 76-5-402;
        (Q) rape of a child, Section 76-5-402.1;
        (R) object rape, Section 76-5-402.2;
        (S) object rape of a child, Section 76-5-402.3;
        (T) forcible sodomy, Section 76-5-403;
        (U) sodomy on a child, Section 76-5-403.1;
        (V) forcible sexual abuse, Section 76-5-404;
        (W) sexual abuse of a child, Section 76-5-404.1, or aggravated sexual abuse of a child,
 Section 76-5-404.3;
        (X) aggravated sexual assault, Section 76-5-405;
        (Y) sexual exploitation of a minor, Section 76-5b-201;
        (Z) aggravated sexual exploitation of a minor, Section 76-5b-201.1;
        (AA) sexual exploitation of a vulnerable adult, Section 76-5b-202;
        (BB) aggravated burglary and burglary of a dwelling under Chapter 6, Part 2, Burglary
 and Criminal Trespass;
        (CC) aggravated robbery and robbery under Chapter 6, Part 3, Robbery;
        (DD) theft by extortion under Subsection 76-6-406(2)(a) or (b);
        (EE) tampering with a witness under Subsection 76-8-508(1);
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        H.B. 148                                                                  12-29-22 10:35 AM
        (FF) retaliation against a witness, victim, or informant under Section 76-8-508.3;
        (GG) tampering with a juror under Subsection 76-8-508.5(2)(c);
        (HH) extortion to dismiss a criminal proceeding under Section 76-8-509 if by any
 threat or by use of force theft by extortion has been committed pursuant to Subsections
 76-6-406(2)(a), (b), and (i);
        (II) possession, use, or removal of explosive, chemical, or incendiary devices under
 Subsections 76-10-306(3) through (6);
        (JJ) unlawful delivery of explosive, chemical, or incendiary devices under Section
 76-10-307;
        (KK) purchase or possession of a dangerous weapon or handgun or ammunition by a
 restricted person under Section 76-10-503;
        (LL) unlawful discharge of a firearm under Section 76-10-508;
        (MM) aggravated exploitation of prostitution under Subsection 76-10-1306(1)(a);
        (NN) bus hijacking under Section 76-10-1504; and
        (OO) discharging firearms and hurling missiles under Section 76-10-1505; or
        (ii) any felony violation of a criminal statute of any other state, the United States, or
 any district, possession, or territory of the United States which would constitute a violent
 felony as defined in this Subsection (1) if committed in this state.
        (2) If a person is convicted in this state of a violent felony by plea or by verdict and the
 trier of fact determines beyond a reasonable doubt that the person is a habitual violent offender
 under this section, the penalty for a:
        (a) third degree felony is as if the conviction were for a first degree felony;
        (b) second degree felony is as if the conviction were for a first degree felony; or
        (c) first degree felony remains the penalty for a first degree penalty except:
        (i) the convicted person is not eligible for probation; and
        (ii) the Board of Pardons and Parole shall consider that the convicted person is a
 habitual violent offender as an aggravating factor in determining the length of incarceration.
        (3) (a) The prosecuting attorney, or grand jury if an indictment is returned, shall
 provide notice in the information or indictment that the defendant is subject to punishment as a
 habitual violent offender under this section. Notice shall include the case number, court, and
 date of conviction or commitment of any case relied upon by the prosecution.
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         (b) (i) The defendant shall serve notice in writing upon the prosecutor if the defendant
 intends to deny that:
         (A) the defendant is the person who was convicted or committed;
         (B) the defendant was represented by counsel or had waived counsel; or
         (C) the defendant's plea was understandingly or voluntarily entered.
         (ii) The notice of denial shall be served not later than five days prior to trial and shall
 state in detail the defendant's contention regarding the previous conviction and commitment.
         (4) (a) If the defendant enters a denial under Subsection (3)(b) and if the case is tried to
 a jury, the jury may not be told, until after [it] the jury returns [its] the jury's verdict on the
 underlying felony charge, of the:
         (i) defendant's previous convictions for violent felonies, except as otherwise provided
 in the Utah Rules of Evidence; or
         (ii) allegation against the defendant of being a habitual violent offender.
         (b) If the jury's verdict is guilty, the defendant shall be tried regarding the allegation of
 being an habitual violent offender by the same jury, if practicable, unless the defendant waives
 the jury, in which case the allegation shall be tried immediately to the court.
         (c) (i) Before or at the time of sentencing the trier of fact shall determine if this section
 applies.
         (ii) The trier of fact shall consider any evidence presented at trial and the prosecution
 and the defendant shall be afforded an opportunity to present any necessary additional
 evidence.
         (iii) Before sentencing under this section, the trier of fact shall determine whether this
 section is applicable beyond a reasonable doubt.
         (d) If any previous conviction and commitment is based upon a plea of guilty or no
 contest, there is a rebuttable presumption that the conviction and commitment were regular and
 lawful in all respects if the conviction and commitment occurred after January 1, 1970. If the
 conviction and commitment occurred prior to January 1, 1970, the burden is on the prosecution
 to establish by a preponderance of the evidence that the defendant was then represented by
 counsel or had lawfully waived the right to have counsel present, and that the defendant's plea
 was understandingly and voluntarily entered.
         (e) If the trier of fact finds this section applicable, the court shall enter that specific
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        H.B. 148                                                                 12-29-22 10:35 AM
 finding on the record and shall indicate in the order of judgment and commitment that the
 defendant has been found by the trier of fact to be a habitual violent offender and is sentenced
 under this section.
        (5) (a) The sentencing enhancement provisions of Section 76-3-407 supersede the
 provisions of this section.
        (b) Notwithstanding Subsection (5)(a), the "violent felony" offense defined in
 Subsection (1)(c) shall include any felony sexual offense violation of Chapter 5, Part 4, Sexual
 Offenses, to determine if the convicted person is a habitual violent offender.
        (6) The sentencing enhancement described in this section does not apply if:
        (a) the offense for which the person is being sentenced is:
        (i) a grievous sexual offense;
        (ii) child kidnapping, Section 76-5-301.1;
        (iii) aggravated kidnapping, Section 76-5-302; or
        (iv) forcible sexual abuse, Section 76-5-404; and
        (b) applying the sentencing enhancement provided for in this section would result in a
 lower maximum penalty than the penalty provided for under the section that describes the
 offense for which the person is being sentenced.
        Section 2. Section 76-10-503 is amended to read:
        76-10-503. Restrictions on possession, purchase, transfer, and ownership of
 dangerous weapons or ammunition by certain persons -- Exceptions.
        (1) [For purposes of] As used in this section:
        (a) "Ammunition" means a live round with a projectile, designed for use in and capable
 of being fired from a firearm.
        [(a)] (b) A Category I restricted person is a person who:
        (i) has been convicted of any violent felony as defined in Section 76-3-203.5;
        (ii) is on probation or parole for any felony;
        (iii) is on parole from secure care, as defined in Section 80-1-102;
        (iv) within the last 10 years has been adjudicated under Section 80-6-701 for an offense
 which if committed by an adult would have been a violent felony as defined in Section
 76-3-203.5;
        (v) is an alien who is illegally or unlawfully in the United States; or
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           (vi) is on probation for a conviction of possessing:
           (A) a substance classified in Section 58-37-4 as a Schedule I or II controlled substance;
           (B) a controlled substance analog; or
           (C) a substance listed in Section 58-37-4.2.
           [(b)] (c) A Category II restricted person is a person who:
           (i) has been convicted of any felony;
           (ii) within the last seven years has been adjudicated delinquent for an offense which if
 committed by an adult would have been a felony;
           (iii) is an unlawful user of a controlled substance as defined in Section 58-37-2;
           (iv) is in possession of a dangerous weapon and is knowingly and intentionally in
 unlawful possession of a Schedule I or II controlled substance as defined in Section 58-37-2;
           (v) has been found not guilty by reason of insanity for a felony offense;
           (vi) has been found mentally incompetent to stand trial for a felony offense;
           (vii) has been adjudicated as mentally defective as provided in the Brady Handgun
 Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536 (1993), or has been committed
 to a mental institution;
           (viii) has been dishonorably discharged from the armed forces;
           (ix) has renounced the individual's citizenship after having been a citizen of the United
 States;
           (x) is a respondent or defendant subject to a protective order or child protective order
 that is issued after a hearing for which the respondent or defendant received actual notice and at
 which the respondent or defendant has an opportunity to participate, that restrains the
 respondent or defendant from harassing, stalking, threatening, or engaging in other conduct that
 would place an intimate partner, as defined in 18 U.S.C. Sec. 921, or a child of the intimate
 partner, in reasonable fear of bodily injury to the intimate partner or child of the intimate
 partner, and that:
           (A) includes a finding that the respondent or defendant represents a credible threat to
 the physical safety of an individual who meets the definition of an intimate partner in 18 U.S.C.
 Sec. 921 or the child of the individual; or
           (B) explicitly prohibits the use, attempted use, or threatened use of physical force that
 would reasonably be expected to cause bodily harm against an intimate partner or the child of
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        H.B. 148                                                                     12-29-22 10:35 AM
 an intimate partner; or
         (xi) has been convicted of the commission or attempted commission of assault under
 Section 76-5-102 or aggravated assault under Section 76-5-103 against a current or former
 spouse, parent, guardian, individual with whom the restricted person shares a child in common,
 individual who is cohabitating or has cohabitated with the restricted person as a spouse, parent,
 or guardian, or against an individual similarly situated to a spouse, parent, or guardian of the
 restricted person.
         [(c)] (d) As used in this section, a conviction of a felony or adjudication of delinquency
 for an offense which would be a felony if committed by an adult does not include:
         (i) a conviction or an adjudication under Section 80-6-701 for an offense pertaining to
 antitrust violations, unfair trade practices, restraint of trade, or other similar offenses relating to
 the regulation of business practices not involving theft or fraud; or
         (ii) a conviction or an adjudication under Section 80-6-701 which, according to the law
 of the jurisdiction in which it occurred, has been expunged, set aside, reduced to a
 misdemeanor by court order, pardoned or regarding which the person's civil rights have been
 restored unless the pardon, reduction, expungement, or restoration of civil rights expressly
 provides that the person may not ship, transport, possess, or receive firearms.
         [(d)] (e) It is the burden of the defendant in a criminal case to provide evidence th