Bill Summary – FastDemocracy

Enrolled Copy                                                                               S.B. 76
                           EVIDENCE RETENTION AMENDMENTS
                                          2024 GENERAL SESSION
                                               STATE OF UTAH
                                     Chief Sponsor: Wayne A. Harper House Sponsor: Ken Ivory
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  LONG TITLE
  General Description:
      This bill amends provisions related to the retention and disposal of evidence of an offense.
  Highlighted Provisions:
      This bill:
      ▸ clarifies the requirements for disposing of wildlife seized by the Division of Wildlife
  Resources;
      ▸ amends the time period for retaining evidence of a felony offense;
      ▸ clarifies that the time period requirements do not require an agency to return or dispose
  of evidence of a felony offense;
      ▸ provides that an agency is not required to retain evidence of a felony offense in certain
  circumstances;
      ▸ provides the requirements for an agency seeking to no longer retain evidence of a felony
  offense;
      ▸ amends the time period for retaining biological evidence of a violent felony offense;
      ▸ amends the notification requirements regarding the retention of biological evidence of a
  violent felony offense; and
      ▸ makes technical and conforming changes.
  Money Appropriated in this Bill:
      None
  Other Special Clauses:
      None
  Utah Code Sections Affected:
  AMENDS:
      23A-5-201, as last amended by Laws of Utah 2023, Chapter 448 and renumbered and
     S.B. 76                                                                                  Enrolled Copy
       amended by Laws of Utah 2023, Chapter 103
       77-11a-204, as renumbered and amended by Laws of Utah 2023, Chapter 448
       77-11a-205, as renumbered and amended by Laws of Utah 2023, Chapter 448
       77-11a-301, as renumbered and amended by Laws of Utah 2023, Chapter 448
       77-11a-302, as enacted by Laws of Utah 2023, Chapter 448
       77-11a-303, as enacted by Laws of Utah 2023, Chapter 448
       77-11a-305, as renumbered and amended by Laws of Utah 2023, Chapter 448
       77-11c-103, as enacted by Laws of Utah 2023, Chapter 448
       77-11c-202, as enacted by Laws of Utah 2023, Chapter 448
       77-11c-203, as enacted by Laws of Utah 2023, Chapter 448
       77-11c-301, as renumbered and amended by Laws of Utah 2023, Chapter 448
       77-11c-401, as renumbered and amended by Laws of Utah 2023, Chapter 448
   ENACTS:
       77-11c-302, Utah Code Annotated 1953
       77-11c-303, Utah Code Annotated 1953
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   Be it enacted by the Legislature of the state of Utah:
           Section 1. Section 23A-5-201 is amended to read:
           23A-5-201 . Enforcement authority of conservation officers -- Seizure and
   disposition of property.
   (1) A conservation officer shall enforce the provisions of this title in accordance with the
       same procedures and requirements for a law enforcement officer of this state.
   (2) (a) Except as provided in Subsection (2)(b), a conservation officer may seize
       property or contraband in accordance with Title 77, Chapter 11a, Seizure of Property
       and Contraband, and Title 77, Chapter 11b, Forfeiture of Seized Property.
       (b) A conservation officer shall seize protected wildlife illegally taken or held.
   (3) (a) If a conservation officer seizes wildlife as part of an investigation or prosecution
       of an offense and the wildlife may reasonably be used to incriminate or exculpate a
       person for the offense, the division is not required to retain the wildlife under Title
       77, Chapter 11c, Retention of Evidence.
       (b) If the division does not retain wildlife under Subsection (3)(a), the division is
            required to preserve sufficient evidence from the wildlife for use as evidence in the
            prosecution of a person for the offense.
   (4) (a) If a conservation officer seizes wildlife and the wildlife or parts of the wildlife are
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     Enrolled Copy                                                                                      S.B. 76
      perishable, the division may donate the wildlife or parts of the wildlife to be used for
      charitable purposes.
      (b) If wildlife or parts of the wildlife are perishable and are not fit to be donated for
          charitable purposes under Subsection (4)(a), the division may dispose of the wildlife
          or parts of the wildlife in a reasonable manner.
  [(5) (a) The court may order the division to sell or dispose of protected wildlife that is
      seized by a conservation officer if the division is permitted by law to sell or dispose of
      the wildlife.]
          (5) (a) If a defendant is convicted of the offense for which protected wildlife is seized
               and the division is permitted by law to sell or dispose of the protected wildlife, the
               division may sell or dispose of the protected wildlife or part of the wildlife.
               (b) The division may not sell migratory wildfowl but the division shall donate the
                   migratory wildfowl to be used for charitable purposes.
               (c) The division shall deposit the proceeds from the sale of protected wildlife into the
                   Wildlife Resources Account.
  (6) If the division disposes of wildlife and the defendant is acquitted of the offense for
      which the wildlife is seized or the entire case for the offense is dismissed, the court may
      order the division to:
      (a) provide the owner of the disposed wildlife with wildlife that is reasonably equivalent
          in value to the disposed wildlife within 180 days after the day on which the court
          enters the order; or
      (b) if the division is unable to obtain wildlife that is reasonably equivalent in value to the
          disposed wildlife, pay the owner of the disposed wildlife for the non-trophy value of
          the disposed wildlife in accordance with Subsection 23A-5-312(2) within 180 days
          after the day on which the court enters the order.
  (7) (a) If a conservation officer seizes a vehicle under Section 77-11a-201, the division
      shall store the seized vehicle in a public or private garage, state impound lot, or any
      other secured storage facility.
      (b) The division shall release a seized vehicle to the owner no later than 30 days after the
          day on which the vehicle is seized, unless the vehicle was used for the unlawful
          taking or possessing of wildlife by a person charged with a felony under this title.
      (c) The owner of a seized vehicle is liable for the payment of any impound fee if:
          (i) the owner used the vehicle for the unlawful taking or possessing of wildlife; and
          (ii) the owner is convicted of an offense under this title.
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      S.B. 76                                                                                  Enrolled Copy
       (d) The owner of a seized vehicle is not liable for the payment of any impound fee or, if
            the fees have been paid, is entitled to reimbursement of the fees paid, if:
            (i) no charges are filed or all charges are dropped that involve the use of the vehicle
                for the unlawful taking or possessing of wildlife;
            (ii) the person charged with using the vehicle for the unlawful taking or possessing of
                wildlife is found by a court to be not guilty; or
            (iii) the owner did not consent to a use of the vehicle that violates this chapter.
           Section 2. Section 77-11a-204 is amended to read:
           77-11a-204 . Custody of seized property and contraband.
   (1) An agency with custody of seized property or contraband shall:
       (a) hold the property or contraband in safe custody until the property or contraband is [
            released] returned or disposed of in accordance with:
            (i) this chapter; and
            (ii) Chapter 11c, Retention of Evidence; and
       (b) maintain a record of the property or contraband, including:
            (i) a detailed inventory of all property or contraband seized;
            (ii) the name of the person from which the property or contraband was seized; and
            (iii) the agency's case number.
   (2) (a) Except as provided in Subsection (2)(b), no later than 30 days after the day on
       which a peace officer seizes property in the form of cash or other readily negotiable
       instruments, an agency shall deposit the property into a separate, restricted,
       interest-bearing account maintained by the agency solely for the purpose of managing
       and protecting the property from commingling, loss, or devaluation.
       (b) A prosecuting attorney may authorize one or more written extensions of the 30-day
            period under Subsection (2)(a) if the property needs to maintain the form in which
            the property was seized for evidentiary purposes or other good cause.
   (3) An agency shall:
       (a) have written policies for the identification, tracking, management, and safekeeping of
            seized property and contraband; and
       (b) shall have a written policy that prohibits the transfer, sale, or auction of seized
            property and contraband to an employee of the agency.
           Section 3. Section 77-11a-205 is amended to read:
           77-11a-205 . Transfer or release of seized property to another governmental
   entity -- Requirements.
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      Enrolled Copy                                                                                      S.B. 76
  (1) Except as provided in Subsections (3)(a) through (c), upon the seizure of property by a
      peace officer, the property is subject to the exclusive jurisdiction of a district court of
      this state.
  (2) Except as provided in Subsection (3), a peace officer, agency, or prosecuting attorney
      may not directly or indirectly transfer or release seized property to a federal agency or to
      a governmental entity not created or subject to the laws of this state.
  (3) An agency or prosecuting attorney may transfer or release seized property to a federal
      agency or to a governmental entity not created or subject to the laws of this state if:
      (a) (i) the property is cash or another readily negotiable instrument; and
          (ii) the property is evidence in, or subject to, a federal criminal indictment, a federal
               criminal information, or a federal criminal complaint that is filed before the
               property is seized;
      (b) (i) the property is not cash or another readily negotiable instrument; and
          (ii) the property is evidence in, or subject to, a federal criminal indictment, a federal
               criminal information, or a federal criminal complaint that is filed before the day
               on which the agency with custody of the property is required to return the property
               if no criminal or civil action is filed by the prosecuting attorney or a federal
               prosecutor in accordance with Section 77-11b-203;
      (c) (i) the property was used in the commission of an offense in another state; and
          (ii) an agency of that state requests the transfer of the property before the day on
               which the agency with custody of the property is required to return the property if
               no criminal or civil action is filed by the prosecuting attorney or a federal
               prosecutor in accordance with Section 77-11b-203; or
      (d) a district court authorizes, in accordance with Subsection (5), the transfer or release
          of the property to an agency of another state or a federal agency upon a petition by a
          prosecuting attorney or a federal prosecutor.
  (4) (a) A prosecuting attorney, or a federal prosecutor, may file a petition in the district
      court for the transfer or release of seized property.
      (b) If a prosecuting attorney, or a federal prosecutor, files a petition under Subsection
          (4)(a), the petition shall include:
          (i) a detailed description of the property seized;
          (ii) the location where the property was seized;
          (iii) the date the property was seized;
          (iv) the case number assigned by the agency; and
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      S.B. 76                                                                                   Enrolled Copy
           (v) a declaration that:
               (A) states the basis for relinquishing jurisdiction to a federal agency or an agency
                     of another state;
               (B) contains the names and addresses of any known claimant; and
               (C) is signed by the prosecuting attorney or federal prosecutor.
   (5) A district court may not authorize the transfer or release of seized property under
       Subsection (3)(d), unless the district court finds, by a preponderance of the evidence:
       (a) the property is evidence in, or subject to, a federal criminal indictment, a federal
           criminal information, or a federal criminal complaint after the property is seized;
       (b) the property may only be forfeited under federal law;
       (c) forfeiting the property under state law would unreasonably burden the prosecuting
           attorney or agency; or
       (d) the property was subject to a federal criminal investigation before the property was
           seized.
   (6) (a) Before a district court may order the transfer of seized property in accordance
       with this section, the court, the prosecuting attorney, or the federal prosecutor shall
       mail a notice to:
           (i) each address contained in the declaration under Subsection (4)(b)(v) to give a
               claimant the right to be heard with regard to the transfer; and
           (ii) (A) if a federal prosecutor files the petition under Subsection (4), the
               prosecuting attorney that is representing the agency with custody of the
               property; or
               (B) if a prosecuting attorney files the petition under Subsection (4), the federal
                     prosecutor who will receive the property upon the transfer or release of the
                     property.
       (b) If a claimant, or the party under Subsection (6)(a)(i), does not object to the petition to
           transfer the property within 10 days after the day on which the notice is mailed, the
           district court shall issue the district court's order in accordance with this section.
       (c) If the declaration does not include an address for a claimant, the district court shall
           delay the district court's order under this section for 20 days to allow time for the
           claimant to appear and make an objection.
       (d) (i) If a claimant, or a party under Subsection (6)(a)(i), contests a petition to
           transfer the property to a federal agency or to another governmental entity not
           created or subject to the laws of this state, the district court shall promptly set the
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      Enrolled Copy                                                                                    S.B. 76
          matter for hearing.
          (ii) In making a determination under Subsection (5), the district court shall consider
               evidence regarding hardship, complexity, judicial and law enforcement resources,
               protections afforded under state and federal law, pending state or federal
               investigations, and any other relevant matter.
  (7) If an agency receives property, money, or other things of value under a federal law that
      authorizes the sharing or transfer of all or a portion of forfeited property, or the proceeds
      from the sale of forfeited property, the agency:
      (a) shall use the property, money, or other things of value in compliance with federal
          laws and regulations relating to equitable sharing;
      (b) may use the property, money, or other things of value for a law enforcement purpose
          described in Subsection 77-11b-403(10); and
      (c) may not use the property, money, or other thing of value for a law enforcement
          purpose prohibited in Subsection 77-11b-403(11).
  (8) An agency awarded an equitable share of property forfeited by the federal government
      may use the award money only after approval of the use by the agency's legislative body.
  (9) If a district court exercises exclusive jurisdiction over seized property, the district
      court's exclusive jurisdiction is terminated if [the property is released by the agency with
      custody of the property] the agency with custody of the property returns the property to a
      claimant under:
      (a) [Part 3, Release of Seized Property to Claimant] Part 3, Return of Seized Property to
          Claimant; or
      (b) Section 77-11b-203.
        Section 4. Section 77-11a-301 is amended to read:
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                                     Part 3. Return of Seized Property to Claimant
        77-11a-301 . Return of seized property to claiman