01-23 11:36 2nd Sub. (Gray) S.B. 41
Keith Grover proposes the following substitute bill:
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Sex, Kidnap, and Child Abuse Offender Registry Amendments
2025 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Keith Grover
House Sponsor: Matthew H. Gwynn
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LONG TITLE
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General Description:
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This bill amends provisions related to the Sex, Kidnap, and Child Abuse Offender Registry.
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Highlighted Provisions:
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This bill:
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▸ recodifies the statutes applicable to the Sex, Kidnap, and Child Abuse Offender Registry;
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▸ contains a coordination clause to coordinate technical changes between this bill and H.B.
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21, Criminal Code Recodification and Cross References; and
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▸ makes technical and conforming changes.
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Money Appropriated in this Bill:
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None
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Other Special Clauses:
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This bill provides a coordination clause.
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Utah Code Sections Affected:
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AMENDS:
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13-51-107, as last amended by Laws of Utah 2024, Chapter 234
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13-67-101, as last amended by Laws of Utah 2024, Chapter 234
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26B-2-120, as last amended by Laws of Utah 2024, Chapter 234
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41-3-205.5, as last amended by Laws of Utah 2012, Chapter 145
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41-3-209, as last amended by Laws of Utah 2024, Chapter 251
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42-1-1, as last amended by Laws of Utah 2024, Chapter 296
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53-3-205, as last amended by Laws of Utah 2024, Chapters 116, 234
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53-3-216, as last amended by Laws of Utah 2024, Chapter 234
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53-3-804, as last amended by Laws of Utah 2024, Chapters 116, 234
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53-3-806.5, as last amended by Laws of Utah 2024, Chapter 234
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53-3-807, as last amended by Laws of Utah 2024, Chapter 234
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53-10-214, as enacted by Laws of Utah 2019, Chapter 406 2nd Sub. (Gray) S.B. 41 01-23 11:36
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53-10-403, as last amended by Laws of Utah 2024, Chapters 96, 153, 187, and 256
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53-10-404, as last amended by Laws of Utah 2024, Chapter 234
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57-8-3, as last amended by Laws of Utah 2024, Chapter 519
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57-8-8.1, as last amended by Laws of Utah 2024, Chapters 115, 519
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57-8a-102, as last amended by Laws of Utah 2024, Chapter 519
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57-8a-218, as last amended by Laws of Utah 2024, Chapters 115, 519
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63G-2-302, as last amended by Laws of Utah 2024, Chapter 234
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63G-7-301, as last amended by Laws of Utah 2024, Chapter 234
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76-1-201, as last amended by Laws of Utah 2024, Chapter 234
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76-1-202, as last amended by Laws of Utah 2024, Chapter 234
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76-3-402, as last amended by Laws of Utah 2024, Chapter 234
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76-5-401, as last amended by Laws of Utah 2024, Chapter 234
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76-5-401.1, as last amended by Laws of Utah 2024, Chapter 234
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76-5-401.3, as last amended by Laws of Utah 2024, Chapter 234
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76-9-702, as last amended by Laws of Utah 2024, Chapter 234
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76-9-702.1, as last amended by Laws of Utah 2024, Chapter 234
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76-9-702.5, as last amended by Laws of Utah 2024, Chapter 205
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77-2-2.3, as last amended by Laws of Utah 2024, Chapter 234
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77-11c-101, as last amended by Laws of Utah 2024, Chapter 234
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77-27-5.2, as last amended by Laws of Utah 2024, Chapters 116, 234
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77-38-605, as last amended by Laws of Utah 2024, Chapter 234
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77-40a-303, as last amended by Laws of Utah 2024, Chapter 180
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77-40a-403, as last amended by Laws of Utah 2024, Chapter 180
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78A-2-301, as last amended by Laws of Utah 2024, Chapter 366
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78B-8-302, as last amended by Laws of Utah 2024, Chapter 234
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80-3-406, as last amended by Laws of Utah 2023, Chapter 320
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80-5-201, as last amended by Laws of Utah 2024, Chapters 116, 234
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80-8-101, as enacted by Laws of Utah 2024, Chapter 371
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80-8-201, as enacted by Laws of Utah 2024, Chapter 371
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81-9-202, as renumbered and amended by Laws of Utah 2024, Chapter 366
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81-9-208, as renumbered and amended by Laws of Utah 2024, Chapter 366
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ENACTS:
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53-29-101, Utah Code Annotated 1953
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53-29-102, Utah Code Annotated 1953
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53-29-201, Utah Code Annotated 1953
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53-29-202, Utah Code Annotated 1953
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53-29-203, Utah Code Annotated 1953
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53-29-204, Utah Code Annotated 1953
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53-29-205, Utah Code Annotated 1953
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53-29-206, Utah Code Annotated 1953
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53-29-207, Utah Code Annotated 1953
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53-29-301, Utah Code Annotated 1953
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53-29-302, Utah Code Annotated 1953
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53-29-303, Utah Code Annotated 1953
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53-29-304, Utah Code Annotated 1953
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53-29-305, Utah Code Annotated 1953
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53-29-401, Utah Code Annotated 1953
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53-29-402, Utah Code Annotated 1953
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53-29-403, Utah Code Annotated 1953
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53-29-404, Utah Code Annotated 1953
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53-29-405, Utah Code Annotated 1953
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RENUMBERS AND AMENDS:
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53-29-306, (Renumbered from 77-27-21.7, as last amended by Laws of Utah 2024,
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Chapters 116, 234)
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53-29-307, (Renumbered from 77-27-21.8, as last amended by Laws of Utah 2024,
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Chapter 234)
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REPEALS:
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77-41-102, as last amended by Laws of Utah 2024, Chapter 234
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77-41-103, as last amended by Laws of Utah 2024, Chapters 116, 234
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77-41-104, as last amended by Laws of Utah 2023, Chapter 128
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77-41-105, as last amended by Laws of Utah 2024, Chapter 234
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77-41-106, as last amended by Laws of Utah 2024, Chapter 234
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77-41-107, as last amended by Laws of Utah 2024, Chapter 234
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77-41-108, as enacted by Laws of Utah 2012, Chapter 145
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77-41-109, as last amended by Laws of Utah 2024, Chapter 234
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77-41-110, as last amended by Laws of Utah 2024, Chapter 234
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77-41-111, as last amended by Laws of Utah 2023, Chapter 128
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77-41-112, as last amended by Laws of Utah 2024, Chapters 116, 234
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77-41-113, as last amended by Laws of Utah 2024, Chapter 234
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77-41-114, as last amended by Laws of Utah 2024, Chapter 234
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Utah Code Sections affected by Coordination Clause:
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53-29-202, Utah Code Annotated 1953
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53-29-203, Utah Code Annotated 1953
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53-29-204, Utah Code Annotated 1953
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53-29-205, Utah Code Annotated 1953
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76-9-702, as last amended by Laws of Utah 2024, Chapter 234
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Be it enacted by the Legislature of the state of Utah:
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Section 1. Section 13-51-107 is amended to read:
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13-51-107 . Driver requirements.
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(1) Before a transportation network company allows an individual to use the transportation
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network company's software application as a transportation network driver, the
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transportation network company shall:
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(a) require the individual to submit to the transportation network company:
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(i) the individual's name, address, and age;
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(ii) a copy of the individual's driver license, including the driver license number; and
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(iii) proof that the vehicle that the individual will use to provide transportation
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network services is registered with the Division of Motor Vehicles;
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(b) require the individual to consent to a criminal background check of the individual by
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the transportation network company or the transportation network company's
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designee; and
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(c) obtain and review a report that lists the individual's driving history.
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(2) A transportation company may not allow an individual to provide transportation
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network services as a transportation network driver if the individual:
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(a) has committed more than three moving violations in the three years before the day on
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which the individual applies to become a transportation network driver;
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(b) has been convicted, in the seven years before the day on which the individual applies
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to become a transportation network driver, of:
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(i) driving under the influence of alcohol or drugs;
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(ii) fraud;
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(iii) a sexual offense;
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(iv) a felony involving a motor vehicle;
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(v) a crime involving property damage;
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(vi) a crime involving theft;
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(vii) a crime of violence; or
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(viii) an act of terror;
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(c) is required to register as a sex offender, kidnap offender, or child abuse offender in
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accordance with [Title 77, Chapter 41, Sex, Kidnap, and Child Abuse Offender
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Registry] Title 53, Chapter 29, Sex, Kidnap, and Child Abuse Offender Registry;
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(d) does not have a valid Utah driver license; or
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(e) is not at least 18 years old.
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(3)(a) A transportation network company shall prohibit a transportation network driver
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from accepting a request for a prearranged ride if the motor vehicle that the
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transportation network driver uses to provide transportation network services fails to
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comply with:
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(i) equipment standards described in Section 41-6a-1601; and
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(ii) emission requirements adopted by a county under Section 41-6a-1642.
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(b)(i) If upon visual inspection, a defect relating to the equipment standards described
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in Section 41-6a-1601 can be reasonably identified, an airport operator may
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perform a safety inspection of a transportation network driver's vehicle operating
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within the airport to ensure compliance with equipment standards described in
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Section 41-6a-1601.
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(ii) An airport operator shall conduct all inspections under this Subsection (3) in such
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a manner to minimize impact to the transportation network driver's and
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transportation network company vehicle's availability to provide prearranged rides.
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(4) A transportation network driver, while providing transportation network services, shall
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carry proof, in physical or electronic form, that the transportation network driver is
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covered by insurance that satisfies the requirements of Section 13-51-108.
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Section 2. Section 13-67-101 is amended to read:
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13-67-101 . Definitions.
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As used in this chapter:
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(1) "Banned member" means a member whose account or profile is the subject of a fraud
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ban.
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(2) "Criminal background screening" means a name search for an individual's criminal
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conviction and is conducted by searching:
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(a) available and regularly updated government public record databases that in the
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aggregate provide national coverage for criminal conviction records; or
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(b) a regularly updated database with national coverage of criminal conviction records
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and sexual offender registries maintained by a private vendor.
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(3)(a) "Criminal conviction" means a conviction for a crime in this state, another state,
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or under federal law.
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(b) "Criminal conviction" includes an offense that would require registration under [Title
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77, Chapter 41, Sex, Kidnap, and Child Abuse Offender Registry] Title 53, Chapter
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29, Sex, Kidnap, and Child Abuse Offender Registry, or under a similar law in a
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different jurisdiction.
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(4) "Division" means the Division of Consumer Protection in the Department of Commerce.
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(5) "Fraud ban" means the expulsion of a member from an online dating service because, in
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the judgment of the online dating service provider, there is a significant risk the member
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will attempt to obtain money from another member through fraudulent means.
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(6) "Member" means an individual who submits to an online dating service provider the
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information required by the online dating service provider to access the online dating
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service provider's online dating service.
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(7) "Online dating service" means a product or service that is:
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(a) conducted through a website or a mobile application; and
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(b) primarily marketed and intended to offer a member access to dating or romantic
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relationships with another member by arranging or facilitating the social introduction
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of members.
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(8) "Online dating service provider" means a person [predominately] predominantly
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engaged in the business of offering an online dating service.
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(9) "Utah member" means a member who provides a Utah billing address or zip code when
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registering with an online dating service provider.
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Section 3. Section 26B-2-120 is amended to read:
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26B-2-120 . Background check -- Direct access to children or vulnerable adults.
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(1) As used in this section:
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(a)(i) "Applicant" means an individual who is associated with a certification,
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contract, or licensee with the department under this part and has direct access,
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including:
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(A) an adoptive parent or prospective adoptive parent, including an applicant for
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an adoption in accordance with Section 78B-6-128;
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(B) a foster parent or prospective foster parent;
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(C) an individual who provides respite care to a foster parent or an adoptive parent
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on more than one occasion;
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(D) an individual who transports a child for a youth transportation company;
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(E) an individual who provides certified peer support, as defined in Section
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26B-5-610;
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(F) an individual who provides peer supports, has a disability or a family member
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with a disability, or is in recovery from a mental illness or a substance use
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disorder;
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(G) an individual who has lived experience with the services provided by the
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department, and uses that lived experience to provide support, guidance, or
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services to promote resiliency and recovery;
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(H) an individual who is identified as a mental health professional, licensed under
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Title 58, Chapter 60, Mental Health Professional Practice Act, and engaged in
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the practice of mental health therapy, as defined in Section 58-60-102;
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(I) an individual, other than the child or vulnerable adult receiving the service,
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who is 12 years old or older and resides in a home, that is licensed or certified
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by the division;
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(J) an individual who is 12 years old or older and is associated with a certification,
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contract, or licensee with the department under this part and has or will likely
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have direct access;
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(K) a foster home licensee that submits an application for an annual background
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screening as required by Subsection 26B-2-105(4)(d)(iii); or
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(L) a short-term relief care provider.
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(ii) "Applicant" does not include:
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(A) an individual who is in the custody of the Division of Child and Family
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Services or the Division of Juvenile Justice and Youth Services;
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(B) an individual who applies for employment with, or is employed by, the
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Department of Health and Human Services;
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(C) a parent of a person receiving services from the Division of Services for
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People with Disabilities, if the parent provides direct care to and resides with
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the person, including if the parent provides direct care to and resides with the
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person pursuant to a court order; or
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(D) an individual or a department contractor who provides services in an adults
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only substance use disorder program, as defined by rule adopted by the
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Department of Health and Human Services in accordance with Title 63G,
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Chapter 3, Utah Administrative Rulemaking Act, and who is not a program
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director or a member, as defined by Section 26B-2-105, of the program.
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(b) "Application" means a background check application to the office.
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(c) "Bureau" means the Bureau of Criminal Identification within the Department of
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Public Safety, created in Section 53-10-201.
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(d) "Criminal finding" means a record of:
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(i) an arrest for a criminal offense;
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(ii) a warrant for a criminal arrest;
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(iii) charges for a criminal offense; or
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(iv) a criminal conviction.
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(e) "Direct access" means that an individual has, or likely will have:
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(i) contact with or access to a child or vulnerable adult by which the individual will
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have the opportunity for personal communication or touch with the child or
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vulnerable adult; or
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(ii) an opportunity to view medical, financial, or other confidential personal
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identifying information of the child, the child's parent or legal guardian, or the
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vulnerable adult.
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(f)(i) "Direct access qualified" means that the applicant has an eligible determination
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by the office within the license and renewal time period; and
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(ii) no more than 180 days have passed since the date on which the applicant's
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association with a certification, contract, or licensee with the department expires.
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(g) "Incidental care" means occasional care, not in excess of five hours per week and
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never overnight, for a foster child.
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(h) "Licensee" means an individual or a human services program licensed by the
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division.
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(i) "Non-criminal finding" means a record maintained in:
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(i) the Division of Child and Family Services' Management Information System
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described in Section 80-2-1001;
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(ii) the Division of Child and Family Services' Licensing Information System
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described in Section 80-2-1002;
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(iii) the Division of Aging and Adult Services' vulnerable adult abuse, neglect, or
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exploitation database described in Section 26B-6-210;
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(iv) juvenile court arrest, adjudication, and disposition records;
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(v) the Sex, Kidnap, and Child Abuse Offender Registry described in [Title 77,
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Chapter 41, Sex, Kidnap, and Child Abuse Offender Registry] Title 53, Chapter
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29, Sex, Kidnap, and Child Abuse Offender Registry, or a national sex offender
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registry; or
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(vi) a state child abuse or neglect registry.
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(j) "Office" means the Office of Background Processing within the department.
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(k) "Personal identifying information" means:
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(i) current name, former names, nicknames, and aliases;
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(ii) date of birth;
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(iii) physical address and email address;
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(iv) telephone number;
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(v) driver license or other government-issued identification;
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(vi) social security number;
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(vii) only for applicants who are 18 years old or older, fingerprints, in a form
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specified by the office; and
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(viii) other information specified by the office by rule made in accordance with Title
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63G, Chapter 3, Utah Administrative Rulemaking Act.
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(2) Except as provided in Subsection (12), an applicant or a representative shall submit the
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following to the office:
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(a) personal identifying information;
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(b) a fee established by the office under Section 63J-1-504;
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(c) a disclosure form, specified by the office, for consent for:
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(i) an initial background check upon association with a certification, contract, or
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licensee with the department;
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(ii) ongoing monitoring of fingerprints and registries until no longer associated with a
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certification, contract, or licensee with the department for 180 days;
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(iii) a background check when the office determines that reasonable cause exists; and
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(iv) retention of personal identifying information, including fingerprints, for
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monitoring and notification as described in Subsections (3)(c) and (4);
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(d) if an applicant resided outside of the United States and its territories during the five
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years immediately preceding the day on which the information described in
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Subsections (2)(a) through (c) is submitted to the office, documentation establishing
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whether the applicant was convicted of a crime during the time that the applicant
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resided outside of the United States or its territories; and
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(e) an application showing an applicant's association with a certification, contract, or a
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licensee with the department, for the purpose of the office tracking the direct access
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qualified status of the applicant, which expires 180 days after the date on which the
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applicant is no longer associated with a certification, contract, or a licensee with the
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department.
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(3) The office:
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(a) shall perform the following duties as part of a background check of an applicant
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before the office grants or denies direct access qualified status to an applicant:
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(i) check state and regional criminal background databases for the applicant's
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criminal history by:
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(A) submitting personal identifying information to the bureau for a search; or
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(B) using the applicant's personal identifying information to search state and
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regional criminal background databases as authorized under Section 53-10-108;
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(ii) submit the applicant's personal identifying information and fingerprints to the
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bureau for a criminal history search of applicable national criminal background
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databases;
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(iii) search the Division of Child and Family Services' Licensing Information System
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described in Section 80-2-1002;
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(iv) search the Sex, Kidnap, and Child Abuse Offender Registry described in [Title
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77, Chapter 41, Sex, Kidnap, and Child Abuse Offender Registry] Title 53,
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Chapter 29, Sex, Kidnap, and Child Abuse Offender Registry, or a national sex
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offender registry for an applicant 18 years old or older;
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(v) if the applicant is associated with a licensee for a prospective foster or adoptive
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parent, search the Division of Child and Family Services' Management
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Information System described in Section 80-2-1001;
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(vi) search the Division of Aging and Adult Services' vulnerable adult abuse, neglect,
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or exploitation database described in Section 26B-6-210;
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(vii) search the juvenile court records for substantiated findings of severe child abuse
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or neglect described in Section 80-3-404; and
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(viii) search the juvenile court arrest, adjudication, and disposition records, as
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provided under Section 78A-6-209;
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(b) may conduct all or portions of a background check in connection with determining
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whether an applicant is direct access qualified, as provided by rule, made by the
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office in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
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(i) for an annual renewal; or
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(ii) when the office determines that reasonable cause exists;
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(c) may submit an applicant's personal identifying information, including fingerprints, to
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the bureau for checking, retaining, and monitoring of state and national criminal
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background databases and for notifying the office of new criminal activity associated
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with the applicant;
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(d) shall track the status of an applicant under this section to ensure that the applicant is
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not required to duplicate the submission of the applicant's fingerprints if the applicant
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is associated with more than one certification, contract, or licensee with the
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department;
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(e) shall notify the bureau when a direct access qualified individual has not been
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associated with a certification, contract, or licensee with the department for a period
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of 180 days;
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(f) shall adopt measures to strictly limit access to personal identifying information solely
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to the individuals responsible for processing and entering the applications for
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background checks and to protect the security of the personal identifying information
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the office reviews under this Subsection (3);
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(g) as necessary to comply with the federal requirement to check a state's child abuse
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and neglect registry regarding any applicant working in a congregate care program,
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shall:
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(i) search the Division of Child and Family Services' Licensing Information System
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described in Section 80-2-1002; and
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(ii) require the child abuse and neglect registry be checked in each state where an
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applicant resided at any time during the five years immediately preceding the day
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on which the application is submitted to the office; and
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(h) shall make rules, in accordance with Title 63G, Chapter 3, Utah Administrative
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Rulemaking Act, to implement the provisions of this Subsection (3) relating to
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background checks.
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(4)(a) With the personal identifying information the office submits to the bureau under
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Subsection (3), the bureau shall check against state and regional criminal background
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databases for the applicant's criminal history.
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(b) With the personal identifying information and fingerprints the office submits to the
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bureau under Subsection (3), the bureau shall check against national criminal
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background databases for the applicant's criminal history.
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(c) Upon direction from the office, and with the personal identifying information and
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fingerprints the office submits to the bureau under Subsection (3)(c), the bureau shall:
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(i) maintain a separate file of the fingerprints for search by future submissions to the
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local and regional criminal records databases, including latent prints; and
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(ii) monitor state and regional criminal background databases and identify criminal
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activity associated with the applicant.
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(d) The bureau is authorized to submit the fingerprints to the Federal Bureau of
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Investigation Next Generation Identification System, to be retained in the Federal
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Bureau of Investigation Next Generation Identification System for the purpose of:
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(i) being searched by future submissions to the national criminal records databases,
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including the Federal Bureau of Investigation Next Generation Identification
381
System and latent prints; and
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(ii) monitoring national criminal background databases and identifying criminal
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activity associated with the applicant.
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(e) The [Bureau] bureau shall notify and release to the office all information of criminal
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activity associated with the applicant.
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(f) Upon notice that an individual who has direct access qualified status will no longer
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be associated with a certification, contract, or licensee with the department, the
388
bureau shall:
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(i) discard and destroy any retained fingerprints; and
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(ii) notify the Federal Bureau of Investigation when the license has expired or an
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individual's direct access to a child or a vulnerable adult has ceased, so that the
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Federal Bureau of Investigation will discard and destroy the retained fingerprints
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from the Federal Bureau of Investigation Next Generation Identification System.
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(5)(a) Except as provided in Subsection (5)(b), the office shall deny direct access
395
qualified status to an applicant who, within three years from the date on which the
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office conducts the background check, was convicted of:
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(i) a felony or misdemeanor involving conduct that constitutes any of the following:
398
(A) an offense identified as domestic violence, lewdness, voyeurism, battery,
399
cruelty to animals, or bestiality;
400
(B) a violation of any pornography law, including sexual exploitation of a minor
401
or aggravated sexual exploitation of a minor;
402
(C) sexual solicitation or prostitution;
403
(D) a violent offense committed in the presence of a child, as described in Section
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404
76-3-203.10;
405
(E) an offense included in Title 76, Chapter 4, Part 4, Enticement of a Minor;
406
(F) an offense included in Title 76, Chapter 5, Offenses Against the Individual;
407
(G) an offense included in Title 76, Chapter 5b, Sexual Exploitation Act;
408
(H) an offense included in Title 76, Chapter 7, Offenses Against the Family;
409
(I) an offense included in Title 76, Chapter 9, Part 4, Offenses Against Privacy;
410
(J) an offense included in Title 76, Chapter 10, Part 4, Weapons of Mass
411
Destruction;
412
(K) an offense included in Title 78B, Chapter 7, Protective Orders and Stalking
413
Injunctions;
414
(L) aggravated arson, as described in Section 76-6-103;
415
(M) aggravated burglary, as described in Section 76-6-203;
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(N) aggravated exploitation of prostitution, as described in Section 76-10-1306;
417
(O) aggravated robbery, as described in Section 76-6-302;
418
(P) endangering persons in a human services program, as described in Section
419
26B-2-113;
420
(Q) failure to report, as described in Section 80-2-609;
421
(R) identity fraud crime, as described in Section 76-6-1102;
422
(S) leaving a child unattended in a motor vehicle, as described in Section
423
76-10-2202;
424
(T) riot, as described in Section 76-9-101;
425
(U) sexual battery, as described in Section 76-9-702.1; or
426
(V) threatening with or using a dangerous weapon in a fight or quarrel, as
427
described in Section 76-10-506; or
428
(ii) a felony or misdemeanor offense committed outside of the state that, if committed
429
in the state, would constitute a violation of an offense described in Subsection
430
(5)(a)(i).
431
(b)(i) Subsection (5)(a) does not apply to an applicant who is seeking a position as a
432
peer support provider or a mental health professional, if the applicant provides
433
services in a program that serves only adults with a primary mental health
434
diagnosis, with or without a co-occurring substance use disorder.
435
(ii) The office shall conduct a comprehensive review of an applicant described in
436
Subsection (5)(b)(i) in accordance with Subsection (7).
437
(c) The office shall deny direct access qualified status to an applicant if the office finds
- 13 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
438
that a court order prohibits the applicant from having direct access to a child or
439
vulnerable adult.
440
(6) The office shall conduct a comprehensive review of an applicant's background check if
441
the applicant:
442
(a) has a felony or class A misdemeanor conviction that is more than three years from
443
the date on which the office conducts the background check, for an offense described
444
in Subsection (5)(a);
445
(b) has a felony charge or conviction that is no more than 10 years from the date on
446
which the office conducts the background check for an offense not described in
447
Subsection (5)(a);
448
(c) has a felony charge or conviction that is more than 10 years from the date on which
449
the office conducts the background check, for an offense not described in Subsection
450
(5)(a), with criminal or non-criminal findings after the date of the felony charge or
451
conviction;
452
(d) has a class B misdemeanor or class C misdemeanor conviction that is more than
453
three years and no more than 10 years from the date on which the office conducts the
454
background check for an offense described in Subsection (5)(a);
455
(e) has a class B misdemeanor or class C misdemeanor conviction that is more than 10
456
years from the date on which the office conducts the background check, for an
457
offense described in Subsection (5)(a), with criminal or non-criminal findings after
458
the date of conviction;
459
(f) has a misdemeanor charge or conviction that is no more than three years from the
460
date on which the office conducts the background check for an offense not described
461
in Subsection (5)(a);
462
(g) has a misdemeanor charge or conviction that is more than three years from the date
463
on which the office conducts the background check, for an offense not described in
464
Subsection (5)(a), with criminal or non-criminal findings after the date of charge or
465
conviction;
466
(h) is currently subject to a plea in abeyance or diversion agreement for an offense
467
described in Subsection (5)(a);
468
(i) appears on the Sex, Kidnap, and Child Abuse Offender Registry described in [Title
469
77, Chapter 41, Sex, Kidnap, and Child Abuse Offender Registry] Title 53, Chapter
470
29, Sex, Kidnap, and Child Abuse Offender Registry, or a national sex offender
471
registry;
- 14 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
472
(j) has a record of an adjudication in juvenile court for an act that, if committed by an
473
adult, would be a felony or misdemeanor, if the applicant is:
474
(i) under 28 years old; or
475
(ii) 28 years old or older and has been convicted of, has pleaded no contest to, or is
476
currently subject to a plea in abeyance or diversion agreement for a felony or a
477
misdemeanor offense described in Subsection (5)(a);
478
(k) has a pending charge for an offense described in Subsection (5)(a);
479
(l) has a listing that occurred no more than 15 years from the date on which the office
480
conducts the background check in the Division of Child and Family Services'
481
Licensing Information System described in Section 80-2-1002;
482
(m) has a listing that occurred more than 15 years from the date on which the office
483
conducts the background check in the Division of Child and Family Services'
484
Licensing Information System described in Section 80-2-1002, with criminal or
485
non-criminal findings after the date of the listing;
486
(n) has a listing that occurred no more than 15 years from the date on which the office
487
conducts the background check in the Division of Aging and Adult Services'
488
vulnerable adult abuse, neglect, or exploitation database described in Section
489
26B-6-210;
490
(o) has a listing that occurred more than 15 years from the date on which the office
491
conducts the background check in the Division of Aging and Adult Services'
492
vulnerable adult abuse, neglect, or exploitation database described in Section
493
26B-6-210, with criminal or non-criminal findings after the date of the listing;
494
(p) has a substantiated finding that occurred no more than 15 years from the date on
495
which the office conducts the background check of severe child abuse or neglect
496
under Section 80-3-404 or 80-3-504[ ]; or
497
(q) has a substantiated finding that occurred more than 15 years from the date on which
498
the office conducts the background check of severe child abuse or neglect under
499
Section 80-3-404 or 80-3-504, with criminal or non-criminal findings after the date of
500
the listing.
501
(7)(a) The comprehensive review shall include an examination of:
502
(i) the date of the offense or incident;
503
(ii) the nature and seriousness of the offense or incident;
504
(iii) the circumstances under which the offense or incident occurred;
505
(iv) the age of the perpetrator when the offense or incident occurred;
- 15 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
506
(v) whether the offense or incident was an isolated or repeated incident;
507
(vi) whether the offense or incident directly relates to abuse of a child or vulnerable
508
adult, including:
509
(A) actual or threatened, nonaccidental physical, mental, or financial harm;
510
(B) sexual abuse;
511
(C) sexual exploitation; or
512
(D) negligent treatment;
513
(vii) any evidence provided by the applicant of rehabilitation, counseling, psychiatric
514
treatment received, or additional academic or vocational schooling completed;
515
(viii) the applicant's risk of harm to clientele in the program or in the capacity for
516
which the applicant is applying; and
517
(ix) if the background check of an applicant is being conducted for the purpose of
518
giving direct access qualified status to an applicant seeking a position in a
519
congregate care program or to become a prospective foster or adoptive parent, any
520
listing in the Division of Child and Family Services' Management Information
521
System described in Section 80-2-1001.
522
(b) At the conclusion of the comprehensive review, the office shall deny direct access
523
qualified status to an applicant if the office finds the approval would likely create a
524
risk of harm to a child or vulnerable adult.
525
(8) The office shall grant direct access qualified status to an applicant who is not denied
526
under this section.
527
(9)(a) The office may conditionally grant direct access qualified status to an applicant,
528
for a maximum of 60 days after the day on which the office sends written notice,
529
without requiring that the applicant be directly supervised, if the office:
530
(i) is awaiting the results of the criminal history search of national criminal
531
background databases; and
532
(ii) would otherwise grant direct access qualified status to the applicant under this
533
section.
534
(b) The office may conditionally grant direct access qualified status to an applicant, for a
535
maximum of one year after the day on which the office sends written notice, without
536
requiring that the applicant be directly supervised if the office:
537
(i) is awaiting the results of an out-of-state registry for providers other than foster and
538
adoptive parents; and
539
(ii) would otherwise grant direct access qualified status to the applicant under this
- 16 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
540
section.
541
(c) Upon receiving the results of the criminal history search of a national criminal
542
background database, the office shall grant or deny direct access qualified status to
543
the applicant in accordance with this section.
544
(10)(a) Each time an applicant is associated with a licensee, the department shall review
545
the current status of the applicant's background check to ensure the applicant is still
546
eligible for direct access qualified status in accordance with this section.
547
(b) A licensee may not permit an individual to have direct access to a child or a
548
vulnerable adult without being directly supervised unless:
549
(i) the individual is the parent or guardian of the child, or the guardian of the
550
vulnerable adult;
551
(ii) the individual is approved by the parent or guardian of the child, or the guardian
552
of the vulnerable adult, to have direct access to the child or the vulnerable adult;
553
(iii) the individual is only permitted to have direct access to a vulnerable adult who
554
voluntarily invites the individual to visit; or
555
(iv) the individual only provides incidental care for a foster child on behalf of a foster
556
parent who has used reasonable and prudent judgment to select the individual to
557
provide the incidental care for the foster child.
558
(c) Notwithstanding any other provision of this section, an applicant who is denied direct
559
access qualified status shall not have direct access to a child or vulnerable adult
560
unless the office grants direct access qualified status to the applicant through a
561
subsequent application in accordance with this section.
562
(11) If the office denies direct access qualified status to an applicant, the applicant may
563
request a hearing in the department's Office of Administrative Hearings to challenge the
564
office's decision.
565
(12)(a) This Subsection (12) applies to an applicant associated with a certification,
566
contract, or licensee serving adults only.
567
(b) A program director or a member, as defined in Section 26B-2-105, of the licensee
568
shall comply with this section.
569
(c) The office shall conduct a comprehensive review for an applicant if:
570
(i) the applicant is seeking a position:
571
(A) as a peer support provider;
572
(B) as a mental health professional; or
573
(C) in a program that serves only adults with a primary mental health diagnosis,
- 17 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
574
with or without a co-occurring substance use disorder; and
575
(ii) within three years from the date on which the office conducts the background
576
check, the applicant has a felony or misdemeanor charge or conviction or a
577
non-criminal finding.
578
(13)(a) This Subsection (13) applies to an applicant seeking a position in a congregate
579
care program, an applicant seeking to provide a prospective foster home, an applicant
580
seeking to provide a prospective adoptive home, and each adult living in the home of
581
the prospective foster or prospective adoptive home.
582
(b) As federally required, the office shall:
583
(i) check the child abuse and neglect registry in each state where each applicant
584
resided in the five years immediately preceding the day on which the applicant
585
applied to be a foster or adoptive parent, to determine whether the prospective
586
foster or adoptive parent is listed in the registry as having a substantiated or
587
supported finding of child abuse or neglect; and
588
(ii) except for applicants seeking a position in a congregate care program, check the
589
child abuse and neglect registry in each state where each adult living in the home
590
of the prospective foster or adoptive home resided in the five years immediately
591
preceding the day on which the applicant applied to be a foster or adoptive parent,
592
to determine whether the adult is listed in the registry as having a substantiated or
593
supported finding of child abuse or neglect.
594
(c) The requirements described in Subsection (13)(b) do not apply to the extent that:
595
(i) federal law or rule permits otherwise; or
596
(ii) the requirements would prohibit the Division of Child and Family Services or a
597
court from placing a child with:
598
(A) a noncustodial parent under Section 80-2a-301, 80-3-302, or 80-3-303; or
599
(B) a relative, other than a noncustodial parent, under Section 80-2a-301, 80-3-302,
600
or 80-3-303, pending completion of the background check described in
601
Subsections (5), (6), and (7).
602
(d) Notwithstanding Subsections (5) through (10), the office shall deny direct access
603
qualified status if the applicant has been convicted of:
604
(i) a felony involving conduct that constitutes any of the following:
605
(A) child abuse, as described in Sections 76-5-109, 76-5-109.2, and 76-5-109.3;
606
(B) commission of domestic violence in the presence of a child, as described in
607
Section 76-5-114;
- 18 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
608
(C) abuse or neglect of a child with a disability, as described in Section 76-5-110;
609
(D) intentional aggravated abuse of a vulnerable adult, as described in Section
610
76-5-111;
611
(E) endangerment of a child or vulnerable adult, as described in Section
612
76-5-112.5;
613
(F) aggravated murder, as described in Section 76-5-202;
614
(G) murder, as described in Section 76-5-203;
615
(H) manslaughter, as described in Section 76-5-205;
616
(I) child abuse homicide, as described in Section 76-5-208;
617
(J) homicide by assault, as described in Section 76-5-209;
618
(K) kidnapping, as described in Section 76-5-301;
619
(L) child kidnapping, as described in Section 76-5-301.1;
620
(M) aggravated kidnapping, as described in Section 76-5-302;
621
(N) human trafficking of a child, as described in Section 76-5-308.5;
622
(O) an offense described in Title 76, Chapter 5, Part 4, Sexual Offenses;
623
(P) sexual exploitation of a minor, as described in Title 76, Chapter 5b, Sexual
624
Exploitation Act;
625
(Q) aggravated exploitation of a minor, as described in Section 76-5b-201.1;
626
(R) aggravated arson, as described in Section 76-6-103;
627
(S) aggravated burglary, as described in Section 76-6-203;
628
(T) aggravated robbery, as described in Section 76-6-302;
629
(U) lewdness involving a child, as described in Section 76-9-702.5;
630
(V) incest, as described in Section 76-7-102; or
631
(W) domestic violence, as described in Section 77-36-1; or
632
(ii) an offense committed outside the state that, if committed in the state, would
633
constitute a violation of an offense described in Subsection (13)(d)(i).
634
(e) Notwithstanding Subsections (5) through (10), the office shall deny direct access
635
qualified status to an applicant if, within the five years from the date on which the
636
office conducts the background check, the applicant was convicted of a felony
637
involving conduct that constitutes a violation of any of the following:
638
(i) aggravated assault, as described in Section 76-5-103;
639
(ii) aggravated assault by a prisoner, as described in Section 76-5-103.5;
640
(iii) mayhem, as described in Section 76-5-105;
641
(iv) an offense described in Title 58, Chapter 37, Utah Controlled Substances Act;
- 19 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
642
(v) an offense described in Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
643
(vi) an offense described in Title 58, Chapter 37b, Imitation Controlled Substances
644
Act;
645
(vii) an offense described in Title 58, Chapter 37c, Utah Controlled Substance
646
Precursor Act; or
647
(viii) an offense described in Title 58, Chapter 37d, Clandestine Drug Lab Act.
648
(f) In addition to the circumstances described in Subsection (6), the office shall conduct
649
a comprehensive review of an applicant's background check under this section if the
650
applicant:
651
(i) has an offense described in Subsection (5)(a);
652
(ii) has an infraction conviction entered on a date that is no more than three years
653
before the date on which the office conducts the background check;
654
(iii) has a listing in the Division of Child and Family Services' Licensing Information
655
System described in Section 80-2-1002;
656
(iv) has a listing in the Division of Aging and Adult Services' vulnerable adult,
657
neglect, or exploitation database described in Section 26B-2-210;
658
(v) has a substantiated finding of severe child abuse or neglect under Section
659
80-3-404 or 80-3-504; or
660
(vi) has a listing on the registry check described in Subsection (13)(b) as having a
661
substantiated or supported finding of a severe type of child abuse or neglect, as
662
defined in Section 80-1-102.
663
(14) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
664
office may make rules, consistent with this part, to:
665
(a) establish procedures for, and information to be examined in, the comprehensive
666
review described in Subsections (6), (7), and (13); and
667
(b) determine whether to consider an offense or incident that occurred while an
668
individual was in the custody of the Division of Child and Family Services or the
669
Division of Juvenile Justice and Youth Services for purposes of granting or denying
670
direct access qualified status to an applicant.
671
Section 4. Section 41-3-205.5 is amended to read:
672
41-3-205.5 . Licenses -- Criminal background check required on salesperson's
673
licenses -- Payment of cost.
674
(1)(a) Every applicant for a salesperson's license shall submit fingerprints with a
675
completed application to the division.
- 20 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
676
(b) [A person] An individual required to renew a salesperson license on or before June
677
30, 2010, shall submit fingerprints to the division on or before November 30, 2010.
678
(2) The division shall submit fingerprints for each applicant described in Subsection (1) to
679
the Bureau of Criminal Identification established in Section 53-10-201.
680
(3) The Bureau of Criminal Identification shall:
681
(a) check the information submitted by the division for an applicant under Subsection (2)
682
against the applicable state and regional criminal records databases; and
683
(b) release to the division all information obtained under Subsection (3)(a) relating to the
684
applicant.
685
(4)(a) The Bureau of Criminal Identification shall maintain a separate file of fingerprints
686
submitted under Subsection (2) and notify the division when a new entry is made in
687
the applicable state and regional database against [a person] an individual whose
688
fingerprints are held in the file regarding any matter involving an arrest under state
689
law involving:
690
(i) motor vehicles;
691
(ii) controlled substances;
692
(iii) fraud; or
693
[(iv) a registerable sex offense under Section 77-41-106.]
694
(iv) an offense that would result in the individual being a sex offender under
695
Subsection 53-29-202(2)(b) and required to register for the individual's lifetime
696
under Subsection 53-29-203(1)(b).
697
(b) Upon request by the division, the Bureau of Criminal Identification shall inform the
698
division whether a person whose arrest was reported to the division under Subsection
699
(4)(a) was subsequently convicted of the charge for which the person was arrested.
700
(5) In addition to any fees imposed under this chapter, the division shall:
701
(a) impose on individuals submitting fingerprints in accordance with this section the fees
702
that the Bureau of Criminal Identification is authorized to collect for the services the
703
Bureau of Criminal Identification provides under Subsections (3) and (4); and
704
(b) remit the fees collected under Subsection (5)(a) to the Bureau of Criminal
705
Identification.
706
(6) The division shall use information received from the Bureau of Criminal Identification
707
under this section to determine whether a license should be denied, suspended, or
708
revoked under Section 41-3-209.
709
Section 5. Section 41-3-209 is amended to read:
- 21 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
710
41-3-209 . Administrator's findings -- Suspension and revocation of license.
711
(1) If the administrator finds that an applicant is not qualified to receive a license, a license
712
may not be granted.
713
(2)(a) If the administrator finds that there is reasonable cause to deny, suspend, or
714
revoke a license issued under this chapter, the administrator shall deny, suspend, or
715
revoke the license.
716
(b) Reasonable cause for denial, suspension, or revocation of a license includes, in
717
relation to the applicant or license holder or any of the applicant or license holder's
718
partners, officers, or directors:
719
(i) lack of a principal place of business or authorized service center as required by
720
this chapter;
721
(ii) lack of a sales tax license required under Title 59, Chapter 12, Sales and Use Tax
722
Act;
723
(iii) lack of a bond in effect as required by this chapter;
724
(iv) current revocation or suspension of a dealer, dismantler, auction, or salesperson
725
license issued in another state;
726
(v) nonpayment of required fees;
727
(vi) making a false statement on any application for a license under this chapter or for
728
a special license plate;
729
(vii) a violation of any state or federal law involving motor vehicles;
730
(viii) a violation of any state or federal law involving controlled substances;
731
(ix) charges filed with any county attorney, district attorney, or U.S. attorney in any
732
court of competent jurisdiction for a violation of any state or federal law involving
733
motor vehicles;
734
(x) a violation of any state or federal law involving fraud;
735
(xi) a violation of any state or federal law involving [a registerable sex offense under
736
Section 77-41-106] an offense that would result in the individual being a sex
737
offender under Subsection 53-29-202(2)(b) and required to register for the
738
individual's lifetime under Subsection 53-29-203(1)(b);
739
(xii) having had a license issued under this chapter revoked within five years from
740
the date of application; or
741
(xiii) failure to comply with any applicable qualification or requirement imposed
742
under this chapter.
743
(c) Any action taken by the administrator under Subsection (2)(b)(ix) shall remain in
- 22 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
744
effect until a final resolution is reached by the court involved or the charges are
745
dropped.
746
(3) If the administrator finds that an applicant is not qualified to receive a license under this
747
section, the administrator shall provide the applicant written notice of the reason for the
748
denial.
749
(4) If the administrator finds that the license holder has been convicted by a court of
750
competent jurisdiction of violating any of the provisions of this chapter or any rules
751
made by the administrator, or finds other reasonable cause, the administrator may, by
752
complying with the emergency procedures of Title 63G, Chapter 4, Administrative
753
Procedures Act:
754
(a) suspend the license on terms and for a period of time the administrator finds
755
reasonable; or
756
(b) revoke the license.
757
(5)(a) After suspending or revoking a license, the administrator may take reasonable
758
action to:
759
(i) notify the public that the licensee is no longer in business; and
760
(ii) prevent the former licensee from violating the law by conducting business
761
without a license.
762
(b) Action under Subsection (5)(a) may include signs, banners, barriers, locks, bulletins,
763
and notices.
764
(c) Any business being conducted incidental to the business for which the former
765
licensee was licensed may continue to operate subject to the preventive action taken
766
under this subsection.
767
Section 6. Section 42-1-1 is amended to read:
768
42-1-1 . By petition to district court -- Contents.
769
(1) Any natural person, desiring to change the natural person's name, may file a petition in
770
the district court of the county where the natural person resides, setting forth:
771
(a) the cause for which the change of name is sought;
772
(b) the name proposed; and
773
(c) that the natural person has been a bona fide resident of the county for the year
774
immediately prior to the filing of the petition.
775
(2)(a) A natural person petitioning for a name change under this section shall indicate on
776
the petition whether the individual is [registered with the state's Sex and Kidnap
777
Offender Registry] required to register under Title 53, Chapter 29, Sex, Kidnap, and
- 23 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
778
Child Abuse Offender Registry.
779
(b) The court may request additional information from a natural person who is [
780
registered with the state's Sex and Kidnap Offender Registry] required to register
781
under Title 53, Chapter 29, Sex, Kidnap, and Child Abuse Offender Registry, to
782
make the determination described in Subsection [77-41-105(8)] 53-29-303(3).
783
(3) The provisions of Title 76, Chapter 8, Part 5, Falsification in Official Matters, apply to
784
this section when applicable.
785
Section 7. Section 53-3-205 is amended to read:
786
53-3-205 . Application for license or endorsement -- Fee required -- Tests --
787
Expiration dates of licenses and endorsements -- Information required -- Previous
788
licenses surrendered -- Driving record transferred from other states -- Reinstatement --
789
Fee required -- License agreement.
790
(1) An application for an original license, provisional license, or endorsement shall be:
791
(a) made upon a form furnished by the division; and
792
(b) accompanied by a nonrefundable fee set under Section 53-3-105.
793
(2) An application and fee for an original provisional class D license or an original class D
794
license entitle the applicant to:
795
(a) not more than three attempts to pass both the knowledge and the skills tests for a
796
class D license within six months after the date of the application;
797
(b) a learner permit if needed pending completion of the application and testing process;
798
and
799
(c) an original class D license and license certificate after all tests are passed and
800
requirements are completed.
801
(3) An application and fee for a motorcycle or taxicab endorsement entitle the applicant to:
802
(a) not more than three attempts to pass both the knowledge and skills tests within six
803
months after the date of the application;
804
(b) a motorcycle learner permit after the motorcycle knowledge test is passed; and
805
(c) a motorcycle or taxicab endorsement when all tests are passed.
806
(4) An application for a commercial class A, B, or C license entitles the applicant to:
807
(a) not more than two attempts to pass a knowledge test when accompanied by the fee
808
provided in Subsection 53-3-105(18);
809
(b) not more than two attempts to pass a skills test when accompanied by a fee in
810
Subsection 53-3-105(19) within six months after the date of application;
811
(c) both a commercial driver instruction permit and a temporary license permit for the
- 24 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
812
license class held before the applicant submits the application if needed after the
813
knowledge test is passed; and
814
(d) an original commercial class A, B, or C license and license certificate when all
815
applicable tests are passed.
816
(5) An application and fee for a CDL endorsement entitle the applicant to:
817
(a) not more than two attempts to pass a knowledge test and not more than two attempts
818
to pass a skills test within six months after the date of the application; and
819
(b) a CDL endorsement when all tests are passed.
820
(6)(a) If a CDL applicant does not pass a knowledge test, skills test, or an endorsement
821
test within the number of attempts provided in Subsection (4) or (5), each test may be
822
taken two additional times within the six months for the fee provided in Section
823
53-3-105.
824
(b)(i) An out-of-state resident who holds a valid CDIP issued by a state or
825
jurisdiction that is compliant with 49 C.F.R. Part 383 may take a skills test
826
administered by the division if the out-of-state resident pays the fee provided in
827
Subsection 53-3-105(19).
828
(ii) The division shall:
829
(A) electronically transmit skills test results for an out-of-state resident to the
830
licensing agency in the state or jurisdiction in which the out-of-state resident
831
has obtained a valid CDIP; and
832
(B) provide the out-of-state resident with documentary evidence upon successful
833
completion of the skills test.
834
(7)(a)(i) Except as provided under Subsections (7)(a)(ii), (f), and (g), an original class
835
D license expires on the birth date of the applicant in the eighth year after the year
836
the license certificate was issued.
837
(ii) An original provisional class D license expires on the birth date of the applicant
838
in the fifth year following the year the license certificate was issued.
839
(iii) Except as provided in Subsection (7)(f), a limited term class D license expires on
840
the birth date of the applicant in the fifth year the license certificate was issued.
841
(b) Except as provided under Subsections (7)(f) and (g), a renewal or an extension to a
842
license expires on the birth date of the licensee in the eighth year after the expiration
843
date of the license certificate renewed or extended.
844
(c) Except as provided under Subsections (7)(f) and (g), a duplicate license expires on
845
the same date as the last license certificate issued.
- 25 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
846
(d) An endorsement to a license expires on the same date as the license certificate
847
regardless of the date the endorsement was granted.
848
(e)(i) A regular license certificate and an endorsement to the regular license
849
certificate held by an individual described in Subsection (7)(e)(ii), that expires
850
during the time period the individual is stationed outside of the state, is valid until
851
90 days after the individual's orders are terminated, the individual is discharged, or
852
the individual's assignment is changed or terminated, unless:
853
(A) the license is suspended, disqualified, denied, or has been cancelled or
854
revoked by the division; or
855
(B) the licensee updates the information or photograph on the license certificate.
856
(ii) The provisions in Subsection (7)(e)(i) apply to an individual:
857
(A) ordered to active duty and stationed outside of Utah in any of the armed forces
858
of the United States;
859
(B) who is an immediate family member or dependent of an individual described
860
in Subsection (7)(e)(ii)(A) and is residing outside of Utah;
861
(C) who is a civilian employee of the United States State Department or United
862
States Department of Defense and is stationed outside of the United States; or
863
(D) who is an immediate family member or dependent of an individual described
864
in Subsection (7)(e)(ii)(C) and is residing outside of the United States.
865
(f)(i) Except as provided in Subsection (7)(f)(ii), a limited-term license certificate or
866
a renewal to a limited-term license certificate expires:
867
(A) on the expiration date of the period of time of the individual's authorized stay
868
in the United States or on the date provided under this Subsection (7),
869
whichever is sooner; or
870
(B) on the date of issuance in the first year following the year that the limited-term
871
license certificate was issued if there is no definite end to the individual's
872
period of authorized stay.
873
(ii) A limited-term license certificate or a renewal to a limited-term license certificate
874
issued to an approved asylee or a refugee expires on the birth date of the applicant
875
in the fifth year following the year that the limited-term license certificate was
876
issued.
877
(g) A driving privilege card issued or renewed under Section 53-3-207 expires on the
878
birth date of the applicant in the first year following the year that the driving privilege
879
card was issued or renewed.
- 26 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
880
(8)(a) In addition to the information required by Title 63G, Chapter 4, Administrative
881
Procedures Act, for requests for agency action, an applicant shall:
882
(i) provide:
883
(A) the applicant's full legal name;
884
(B) the applicant's birth date;
885
(C) the applicant's sex;
886
(D)(I) documentary evidence of the applicant's valid social security number;
887
(II) written proof that the applicant is ineligible to receive a social security
888
number;
889
(III) the applicant's temporary identification number (ITIN) issued by the
890
Internal Revenue Service for an individual who:
891
(Aa) does not qualify for a social security number; and
892
(Bb) is applying for a driving privilege card; or
893
(IV) other documentary evidence approved by the division;
894
(E) the applicant's Utah residence address as documented by a form or forms
895
acceptable under rules made by the division under Section 53-3-104, unless the
896
application is for a temporary CDL issued under Subsection 53-3-407(2)(b);
897
and
898
(F) fingerprints, or a fingerprint confirmation form described in Subsection
899
53-3-205.5(1)(a)(ii), and a photograph in accordance with Section 53-3-205.5
900
if the applicant is applying for a driving privilege card;
901
(ii) provide evidence of the applicant's lawful presence in the United States by
902
providing documentary evidence:
903
(A) that the applicant is:
904
(I) a United States citizen;
905
(II) a United States national; or
906
(III) a legal permanent resident alien; or
907
(B) of the applicant's:
908
(I) unexpired immigrant or nonimmigrant visa status for admission into the
909
United States;
910
(II) pending or approved application for asylum in the United States;
911
(III) admission into the United States as a refugee;
912
(IV) pending or approved application for temporary protected status in the
913
United States;
- 27 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
914
(V) approved deferred action status;
915
(VI) pending application for adjustment of status to legal permanent resident or
916
conditional resident; or
917
(VII) conditional permanent resident alien status;
918
(iii) provide a description of the applicant;
919
(iv) state whether the applicant has previously been licensed to drive a motor vehicle
920
and, if so, when and by what state or country;
921
(v) state whether the applicant has ever had a license suspended, cancelled, revoked,
922
disqualified, or denied in the last 10 years, or whether the applicant has ever had a
923
license application refused, and if so, the date of and reason for the suspension,
924
cancellation, revocation, disqualification, denial, or refusal;
925
(vi) state whether the applicant intends to make an anatomical gift under Title 26B,
926
Chapter 8, Part 3, Revised Uniform Anatomical Gift Act, in compliance with
927
Subsection (15);
928
(vii) state whether the applicant is required to register as a sex offender, kidnap
929
offender, or child abuse offender, in accordance with [Title 77, Chapter 41, Sex,
930
Kidnap, and Child Abuse Offender Registry] Title 53, Chapter 29, Sex, Kidnap,
931
and Child Abuse Offender Registry;
932
(viii) state whether the applicant is a veteran of the United States military, provide
933
verification that the applicant was granted an honorable or general discharge from
934
the United States Armed Forces, and state whether the applicant does or does not
935
authorize sharing the information with the Department of Veterans and Military
936
Affairs;
937
(ix) provide all other information the division requires; and
938
(x) sign the application which signature may include an electronic signature as
939
defined in Section 46-4-102.
940
(b) Unless the applicant provides acceptable verification of homelessness as described in
941
rules made by the division, an applicant shall have a Utah residence address, unless
942
the application is for a temporary CDL issued under Subsection 53-3-407(2)(b).
943
(c) An applicant shall provide evidence of lawful presence in the United States in
944
accordance with Subsection (8)(a)(ii), unless the application is for a driving privilege
945
card.
946
(d) The division shall maintain on the division's computerized records an applicant's:
947
(i)(A) social security number;
- 28 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
948
(B) temporary identification number (ITIN); or
949
(C) other number assigned by the division if Subsection (8)(a)(i)(D)(IV) applies;
950
and
951
(ii) indication whether the applicant is required to register as a sex offender, kidnap
952
offender, or child abuse offender in accordance with [Title 77, Chapter 41, Sex,
953
Kidnap, and Child Abuse Offender Registry] Title 53, Chapter 29, Sex, Kidnap,
954
and Child Abuse Offender Registry.
955
(9) The division shall require proof of an applicant's name, birth date, and birthplace by at
956
least one of the following means:
957
(a) current license certificate;
958
(b) birth certificate;
959
(c) Selective Service registration; or
960
(d) other proof, including church records, family Bible notations, school records, or
961
other evidence considered acceptable by the division.
962
(10)(a) Except as provided in Subsection (10)(c), if an applicant receives a license in a
963
higher class than what the applicant originally was issued:
964
(i) the license application is treated as an original application; and
965
(ii) license and endorsement fees is assessed under Section 53-3-105.
966
(b) An applicant that receives a downgraded license in a lower license class during an
967
existing license cycle that has not expired:
968
(i) may be issued a duplicate license with a lower license classification for the
969
remainder of the existing license cycle; and
970
(ii) shall be assessed a duplicate license fee under Subsection 53-3-105(25) if a
971
duplicate license is issued under Subsection (10)(b)(i).
972
(c) An applicant who has received a downgraded license in a lower license class under
973
Subsection (10)(b):
974
(i) may, when eligible, receive a duplicate license in the highest class previously
975
issued during a license cycle that has not expired for the remainder of the existing
976
license cycle; and
977
(ii) shall be assessed a duplicate license fee under Subsection 53-3-105(25) if a
978
duplicate license is issued under Subsection (10)(c)(i).
979
(11)(a) When an application is received from an applicant previously licensed in another
980
state to drive a motor vehicle, the division shall request a copy of the driver's record
981
from the other state.
- 29 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
982
(b) When received, the driver's record becomes part of the driver's record in this state
983
with the same effect as though entered originally on the driver's record in this state.
984
(12) An application for reinstatement of a license after the suspension, cancellation,
985
disqualification, denial, or revocation of a previous license is accompanied by the
986
additional fee or fees specified in Section 53-3-105.
987
(13) An individual who has an appointment with the division for testing and fails to keep
988
the appointment or to cancel at least 48 hours in advance of the appointment shall pay
989
the fee under Section 53-3-105.
990
(14) An applicant who applies for an original license or renewal of a license agrees that the
991
individual's license is subject to a suspension or revocation authorized under this title or
992
Title 41, Motor Vehicles.
993
(15)(a) A licensee shall authenticate the indication of intent under Subsection (8)(a)(vi)
994
in accordance with division rule.
995
(b)(i) Notwithstanding Title 63G, Chapter 2, Government Records Access and
996
Management Act, the division may, upon request, release to an organ procurement
997
organization, as defined in Section 26B-8-301, the names and addresses of all
998
applicants who, under Subsection (8)(a)(vi), indicate that they intend to make an
999
anatomical gift.
1000
(ii) An organ procurement organization may use released information only to:
1001
(A) obtain additional information for an anatomical gift registry; and
1002
(B) inform licensees of anatomical gift options, procedures, and benefits.
1003
(16) Notwithstanding Title 63G, Chapter 2, Government Records Access and Management
1004
Act, the division may release to the Department of Veterans and Military Affairs the
1005
names and addresses of all applicants who indicate their status as a veteran under
1006
Subsection (8)(a)(viii).
1007
(17) Notwithstanding Title 63G, Chapter 2, Government Records Access and Management
1008
Act, the division shall, upon request, release to the Sex, Kidnap, and Child Abuse
1009
Offender Registry office in the Department of Public Safety, the names and addresses of
1010
all applicants who, under Subsection (8)(a)(vii), indicate they are required to register as
1011
a sex offender, kidnap offender, or child abuse offender in accordance with [Title 77,
1012
Chapter 41, Sex, Kidnap, and Child Abuse Offender Registry] Title 53, Chapter 29, Sex,
1013
Kidnap, and Child Abuse Offender Registry.
1014
(18) The division and its employees are not liable, as a result of false or inaccurate
1015
information provided under Subsection (8)(a)(vi) or (viii), for direct or indirect:
- 30 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
1016
(a) loss;
1017
(b) detriment; or
1018
(c) injury.
1019
(19) An applicant who knowingly fails to provide the information required under
1020
Subsection (8)(a)(vii) is guilty of a class A misdemeanor.
1021
(20) A person may not hold both an unexpired Utah license certificate and an unexpired
1022
identification card.
1023
(21)(a) An applicant who applies for an original motorcycle endorsement to a regular
1024
license certificate is exempt from the requirement to pass the knowledge and skills
1025
test to be eligible for the motorcycle endorsement if the applicant:
1026
(i) is a resident of the state of Utah;
1027
(ii)(A) is ordered to active duty and stationed outside of Utah in any of the armed
1028
forces of the United States; or
1029
(B) is an immediate family member or dependent of an individual described in
1030
Subsection (21)(a)(ii)(A) and is residing outside of Utah;
1031
(iii) has a digitized driver license photo on file with the division;
1032
(iv) provides proof to the division of the successful completion of a certified
1033
Motorcycle Safety Foundation rider training course; and
1034
(v) provides the necessary information and documentary evidence required under
1035
Subsection (8).
1036
(b) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
1037
division shall make rules:
1038
(i) establishing the procedures for an individual to obtain a motorcycle endorsement
1039
under this Subsection (21); and
1040
(ii) identifying the applicable restrictions for a motorcycle endorsement issued under
1041
this Subsection (21).
1042
Section 8. Section 53-3-216 is amended to read:
1043
53-3-216 . Change of address -- Duty of licensee to notify division within 10 days
1044
-- Change of name -- Proof necessary -- Method of giving notice by division.
1045
(1)(a) Except as provided in Subsection (1)(b), if an individual, after applying for or
1046
receiving a license, moves from the address named in the application or in the license
1047
certificate issued to the individual, the individual shall, within 10 days after the day
1048
on which the individual moves, notify the division in a manner specified by the
1049
division of the individual's new address and the number of any license certificate held
- 31 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
1050
by the individual.
1051
(b) If an individual who is required to register as a sex offender, kidnap offender, or
1052
child abuse offender under [Title 77, Chapter 41, Sex, Kidnap, and Child Abuse
1053
Offender Registry] Title 53, Chapter 29, Sex, Kidnap, and Child Abuse Offender
1054
Registry, after applying for or receiving a license, moves from the address named in
1055
the application or in the license certificate issued to the individual, the individual
1056
shall, within 30 days after the day on which the individual moves, apply for an
1057
updated license in-person at a division office.
1058
(2) If an applicant requests to change the surname on the applicant's license, the division
1059
shall issue a substitute license with the new name upon receiving an application and fee
1060
for a duplicate license and any of the following proofs of the applicant's full legal name:
1061
(a) an original or certified copy of the applicant's marriage certificate;
1062
(b) a certified copy of a court order under Title 42, Chapter 1, Change of Name, showing
1063
the name change;
1064
(c) an original or certified copy of a birth certificate issued by a government agency;
1065
(d) a certified copy of a divorce decree or annulment granted the applicant that specifies
1066
the name change requested; or
1067
(e) a certified copy of a divorce decree that does not specify the name change requested
1068
together with:
1069
(i) an original or certified copy of the applicant's birth certificate;
1070
(ii) the applicant's marriage license;
1071
(iii) a driver license record showing use of a maiden name; or
1072
(iv) other documentation the division finds acceptable.
1073
(3)(a) If the division is authorized or required to give a notice under this chapter or other
1074
law regulating the operation of vehicles, the notice shall, unless otherwise prescribed,
1075
be given by:
1076
(i) personal delivery to the individual to be notified; or
1077
(ii) deposit in the United States mail with postage prepaid, addressed to the individual
1078
at the individual's address as shown by the records of the division.
1079
(b) The giving of notice by mail is complete upon the expiration of four days after the
1080
deposit of the notice.
1081
(c) Proof of the giving of notice in either manner may be made by the certificate of an
1082
officer or employee of the division or affidavit of an individual 18 years [of age] old
1083
or older, naming the individual to whom the notice was given and specifying the
- 32 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
1084
time, place, and manner of giving the notice.
1085
(4) The division may use state mailing or United States Postal Service information to:
1086
(a) verify an address on an application or on records of the division; and
1087
(b) correct mailing addresses in the division's records.
1088
(5) A violation of the provisions of Subsection (1) is an infraction.
1089
Section 9. Section 53-3-804 is amended to read:
1090
53-3-804 . Application for identification card -- Required information -- Release
1091
of anatomical gift information -- Cancellation of identification card.
1092
(1) To apply for a regular identification card or limited-term identification card, an
1093
applicant shall:
1094
(a) be a Utah resident;
1095
(b) have a Utah residence address; and
1096
(c) appear in person at any license examining station.
1097
(2) An applicant shall provide the following information to the division:
1098
(a) true and full legal name and Utah residence address;
1099
(b) date of birth as set forth in a certified copy of the applicant's birth certificate, or other
1100
satisfactory evidence of birth, which shall be attached to the application;
1101
(c)(i) social security number; or
1102
(ii) written proof that the applicant is ineligible to receive a social security number;
1103
(d) place of birth;
1104
(e) height and weight;
1105
(f) color of eyes and hair;
1106
(g) signature;
1107
(h) photograph;
1108
(i) evidence of the applicant's lawful presence in the United States by providing
1109
documentary evidence:
1110
(i) that the applicant is:
1111
(A) a United States citizen;
1112
(B) a United States national; or
1113
(C) a legal permanent resident alien; or
1114
(ii) of the applicant's:
1115
(A) unexpired immigrant or nonimmigrant visa status for admission into the
1116
United States;
1117
(B) pending or approved application for asylum in the United States;
- 33 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
1118
(C) admission into the United States as a refugee;
1119
(D) pending or approved application for temporary protected status in the United
1120
States;
1121
(E) approved deferred action status;
1122
(F) pending application for adjustment of status to legal permanent resident or
1123
conditional resident; or
1124
(G) conditional permanent resident alien status;
1125
(j) an indication whether the applicant intends to make an anatomical gift under Title
1126
26B, Chapter 8, Part 3, Revised Uniform Anatomical Gift Act;
1127
(k) an indication whether the applicant is required to register as a sex offender, kidnap
1128
offender, or child abuse offender in accordance with [Title 77, Chapter 41, Sex,
1129
Kidnap, and Child Abuse Offender Registry] Title 53, Chapter 29, Sex, Kidnap, and
1130
Child Abuse Offender Registry; and
1131
(l) an indication whether the applicant is a veteran of the United States Armed Forces,
1132
verification that the applicant has received an honorable or general discharge from
1133
the United States Armed Forces, and an indication whether the applicant does or does
1134
not authorize sharing the information with the state Department of Veterans and
1135
Military Affairs.
1136
(3)(a) The requirements of Section 53-3-234 apply to this section for each individual,
1137
age 16 and older, applying for an identification card.
1138
(b) Refusal to consent to the release of information under Section 53-3-234 shall result
1139
in the denial of the identification card.
1140
(4) An individual person who knowingly fails to provide the information required under
1141
Subsection (2)(k) is guilty of a class A misdemeanor.
1142
(5)(a) A person may not hold both an unexpired Utah license certificate and an
1143
unexpired identification card.
1144
(b) A person who holds a regular or limited term Utah driver license and chooses to
1145
relinquish the person's driving privilege may apply for an identification card under
1146
this chapter, provided:
1147
(i) the driver:
1148
(A) no longer qualifies for a driver license for failure to meet the requirement in
1149
Section 53-3-304; or
1150
(B) makes a personal decision to permanently discontinue driving;
1151
(ii) the driver:
- 34 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
1152
(A) submits an application to the division on a form approved by the division in
1153
person, through electronic means, or by mail;
1154
(B) affirms their intention to permanently discontinue driving; and
1155
(C) surrenders to the division the driver license certificate; and
1156
(iii) the division possesses a digital photograph of the driver obtained within the
1157
preceding 10 years.
1158
(c)(i) The division shall waive the fee under Section 53-3-105 for an identification
1159
card for an original identification card application under this Subsection (5).
1160
(ii) The fee waiver described in Subsection (5)(c)(i) does not apply to a person whose
1161
driving privilege is suspended or revoked.
1162
(6) Notwithstanding Title 63G, Chapter 2, Government Records Access and Management
1163
Act, the division shall, upon request, release to the Sex, Kidnap, and Child Abuse
1164
Offender Registry office in the Department of Public Safety, the names and addresses of
1165
all applicants who, under Subsection (2)(k), indicate they are required to register as a sex
1166
offender, kidnap offender, or child abuse offender in accordance with [Title 77, Chapter
1167
41, Sex, Kidnap, and Child Abuse Offender Registry] Title 53, Chapter 29, Sex, Kidnap,
1168
and Child Abuse Offender Registry.
1169
Section 10. Section 53-3-806.5 is amended to read:
1170
53-3-806.5 . Identification card required if offender does not have driver license.
1171
(1)(a) An individual who does not hold a current driver license in compliance with
1172
Section 53-3-205 and is required to register as a sex offender, kidnap offender, or
1173
child abuse offender in accordance with [Title 77, Chapter 41, Sex, Kidnap, and
1174
Child Abuse Offender Registry] Title 53, Chapter 29, Sex, Kidnap, and Child Abuse
1175
Offender Registry, shall obtain an identification card.
1176
(b) The individual shall maintain a current identification card during the time the
1177
individual is required to register as a sex offender, kidnap offender, or child abuse
1178
offender and the individual does not hold a valid driver license.
1179
(2) Failure to maintain a current identification card as required under Subsection (1) is a
1180
class A misdemeanor for each month of violation of Subsection (1).
1181
Section 11. Section 53-3-807 is amended to read:
1182
53-3-807 . Expiration -- Address and name change -- Extension.
1183
(1)(a) A regular identification card expires on the birth date of the applicant in the fifth
1184
year after the issuance of the regular identification card.
1185
(b) A limited-term identification card expires on:
- 35 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
1186
(i) the expiration date of the period of time of the individual's authorized stay in the
1187
United States or on the birth date of the applicant in the fifth year after the
1188
issuance of the limited-term identification card, whichever is sooner; or
1189
(ii) on the date of issuance in the first year after the year that the limited-term
1190
identification card was issued if there is no definite end to the individual's period
1191
of authorized stay.
1192
(2)(a) Except as provided in Subsection (2)(b), if an individual has applied for and
1193
received an identification card and subsequently moves from the address shown on
1194
the application or on the card, the individual shall, within 10 days after the day on
1195
which the individual moves, notify the division in a manner specified by the division
1196
of the individual's new address.
1197
(b) If an individual who is required to register as a sex offender, kidnap offender, or
1198
child abuse offender under [Title 77, Chapter 41, Sex, Kidnap, and Child Abuse
1199
Offender Registry] Title 53, Chapter 29, Sex, Kidnap, and Child Abuse Offender
1200
Registry, has applied for and received an identification card and subsequently moves
1201
from the address shown on the application or on the card, the individual shall, within
1202
30 days after the day on which the individual moves, apply for an updated
1203
identification card in-person at a division office.
1204
(3) If an individual has applied for and received an identification card and subsequently
1205
changes the individual's name under Title 42, Chapter 1, Change of Name, the
1206
individual:
1207
(a) shall surrender the card to the division; and
1208
(b) may apply for a new card in the individual's new name by:
1209
(i) furnishing proper documentation to the division as provided in Section 53-3-804;
1210
and
1211
(ii) paying the fee required under Section 53-3-105.
1212
(4) A person 21 years old or older with a disability, as defined under the Americans with
1213
Disabilities Act of 1990, Pub. L. 101-336, may extend the expiration date on an
1214
identification card for five years if the person with a disability or an agent of the person
1215
with a disability:
1216
(a) requests that the division send the application form to obtain the extension or
1217
requests an application form in person at the division's offices;
1218
(b) completes the application;
1219
(c) certifies that the extension is for a person 21 years old or older with a disability; and
- 36 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
1220
(d) returns the application to the division together with the identification card fee
1221
required under Section 53-3-105.
1222
(5)(a) The division may extend a valid regular identification card issued after January 1,
1223
2010, for five years at any time within six months before the day on which the
1224
identification card expires.
1225
(b) The application for an extension of a regular identification card is accompanied by a
1226
fee under Section 53-3-105.
1227
(c) The division shall allow extensions:
1228
(i) by mail, electronic means, or other means as determined by the division at the
1229
appropriate extension fee rate under Section 53-3-105; and
1230
(ii) only if the applicant qualifies under this section.
1231
(6)(a) A regular identification card may only be extended once under Subsections (4)
1232
and (5).
1233
(b) After an extension an application for an identification card must be applied for in
1234
person at the division's offices.
1235
Section 12. Section 53-10-214 is amended to read:
1236
53-10-214 . Reporting requirements.
1237
The bureau shall submit a record received pursuant to Section 53-10-208.1 for all
1238
nonextraditable warrants issued for violent felonies as defined in Section 76-3-203.5 and all
1239
nonextraditable warrants issued for knowingly failing to register under Title 53, Chapter 29,
1240
Sex, Kidnap, and Child Abuse Offender Registry, for a sexual offense pursuant to Section [
1241
77-41-107] 53-29-305 to the National Crime Information Center within 48 hours of receipt,
1242
excluding Saturdays, Sundays, and legal holidays.
1243
Section 13. Section 53-10-403 is amended to read:
1244
53-10-403 . DNA specimen analysis -- Application to offenders, including minors.
1245
(1) Sections 53-10-403.6, 53-10-404, 53-10-404.5, 53-10-405, and 53-10-406 apply to:
1246
(a) a person who has pled guilty to or has been convicted of any of the offenses under
1247
Subsection (2)(a) or (b) on or after July 1, 2002;
1248
(b) a person who has pled guilty to or has been convicted by any other state or by the
1249
United States government of an offense which if committed in this state would be
1250
punishable as one or more of the offenses listed in Subsection (2)(a) or (b) on or after
1251
July 1, 2003;
1252
(c) a person who has been booked on or after January 1, 2011, through December 31,
1253
2014, for any offense under Subsection (2)(c);
- 37 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
1254
(d) a person who has been booked:
1255
(i) by a law enforcement agency that is obtaining a DNA specimen on or after May
1256
13, 2014, through December 31, 2014, under Subsection 53-10-404(4)(b) for any
1257
felony offense; or
1258
(ii) on or after January 1, 2015, for any felony offense; or
1259
(e) a minor:
1260
(i)(A) who is adjudicated by the juvenile court for an offense described in
1261
Subsection (2) that is within the jurisdiction of the juvenile court on or after
1262
July 1, 2002; or
1263
(B) who is adjudicated by the juvenile court for an offense described in
1264
Subsection (2) and is in the legal custody of the Division of Juvenile Justice
1265
Services for the offense on or after July 1, 2002; and
1266
(ii) who is 14 years old or older at the time of the commission of the offense
1267
described in Subsection (2).
1268
(2) Offenses referred to in Subsection (1) are:
1269
(a) any felony or class A misdemeanor under the Utah Code;
1270
(b) any offense under Subsection (2)(a):
1271
(i) for which the court enters a judgment for conviction to a lower degree of offense
1272
under Section 76-3-402; or
1273
(ii) regarding which the court allows the defendant to enter a plea in abeyance as
1274
defined in Section 77-2a-1; or
1275
(c)(i) any violent felony as defined in Section 53-10-403.5;
1276
(ii) sale or use of body parts, Section 26B-8-315;
1277
(iii) failure to stop at an accident that resulted in death, Section 41-6a-401.5;
1278
(iv) operating a motor vehicle with any amount of a controlled substance in an
1279
individual's body and causing serious bodily injury or death, as codified before
1280
May 4, 2022, Laws of Utah 2021, Chapter 236, Section 1, Subsection 58-37-8
1281
(2)(g);
1282
(v) a felony violation of enticing a minor, Section 76-4-401;
1283
(vi) negligently operating a vehicle resulting in injury, Subsection 76-5-102.1(2)(b);
1284
(vii) a felony violation of propelling a substance or object at a correctional officer, a
1285
peace officer, or an employee or a volunteer, including health care providers,
1286
Section 76-5-102.6;
1287
(viii) automobile homicide, Subsection 76-5-207(2)(b);
- 38 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
1288
(ix) aggravated human trafficking, Section 76-5-310, and aggravated human
1289
smuggling, Section 76-5-310.1;
1290
(x) a felony violation of unlawful sexual activity with a minor, Section 76-5-401;
1291
(xi) a felony violation of sexual abuse of a minor, Section 76-5-401.1;
1292
(xii) unlawful sexual contact with a 16 or 17-year old, Section 76-5-401.2;
1293
(xiii) sale of a child, Section 76-7-203;
1294
(xiv) aggravated escape, Section 76-8-309.3;
1295
(xv) a felony violation of threatened or attempted assault on an elected official,
1296
Section 76-8-313;
1297
(xvi) threat with intent to impede, intimidate, interfere, or retaliate against a judge or
1298
a member of the Board of Pardons and Parole or acting against a family member
1299
of a judge or a member of the Board of Pardons and Parole, Section 76-8-316;
1300
(xvii) assault with intent to impede, intimidate, interfere, or retaliate against a judge
1301
or a member of the Board of Pardons and Parole or acting against a family
1302
member of a judge or a member of the Board of Pardons and Parole, Section
1303
76-8-316.2;
1304
(xviii) aggravated assault with intent to impede, intimidate, interfere, or retaliate
1305
against a judge or a member of the Board of Pardons and Parole or acting against
1306
a family member of a judge or a member of the Board of Pardons and Parole,
1307
Section 76-8-316.4;
1308
(xix) attempted murder with intent to impede, intimidate, interfere, or retaliate
1309
against a judge or a member of the Board of Pardons and Parole or acting against
1310
a family member of a judge or a member of the Board of Pardons and Parole,
1311
Section 76-8-316.6;
1312
(xx) advocating criminal syndicalism or sabotage, Section 76-8-902;
1313
(xxi) assembling for advocating criminal syndicalism or sabotage, Section 76-8-903;
1314
(xxii) a felony violation of sexual battery, Section 76-9-702.1;
1315
(xxiii) a felony violation of lewdness involving a child, Section 76-9-702.5;
1316
(xxiv) a felony violation of abuse or desecration of a dead human body, Section
1317
76-9-704;
1318
(xxv) manufacture, possession, sale, or use of a weapon of mass destruction, Section
1319
76-10-402;
1320
(xxvi) manufacture, possession, sale, or use of a hoax weapon of mass destruction,
1321
Section 76-10-403;
- 39 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
1322
(xxvii) possession of a concealed firearm in the commission of a violent felony,
1323
Subsection 76-10-504(4);
1324
(xxviii) assault with the intent to commit bus hijacking with a dangerous weapon,
1325
Subsection 76-10-1504(3);
1326
(xxix) commercial obstruction, Subsection 76-10-2402(2);
1327
(xxx) a felony violation of failure to register as a sex or kidnap offender, Section [
1328
77-41-107] 53-29-305;
1329
(xxxi) repeat violation of a protective order, Subsection 77-36-1.1(4); or
1330
(xxxii) violation of condition for release after arrest under Section 78B-7-802.
1331
Section 14. Section 53-10-404 is amended to read:
1332
53-10-404 . DNA specimen analysis -- Requirement to obtain the specimen.
1333
(1) As used in this section, "person" means a person or minor described in Section
1334
53-10-403.
1335
(2)(a) A person under Section 53-10-403 or any person required to register as a sex
1336
offender, kidnap offender, or child abuse offender under [Title 77, Chapter 41, Sex,
1337
Kidnap, and Child Abuse Offender Registry] Title 53, Chapter 29, Sex, Kidnap, and
1338
Child Abuse Offender Registry, shall provide a DNA specimen and shall reimburse
1339
the agency responsible for obtaining the DNA specimen $150 for the cost of
1340
obtaining the DNA specimen unless:
1341
(i) the person was booked under Section 53-10-403 and is not required to reimburse
1342
the agency under Section 53-10-404.5; or
1343
(ii) the agency determines the person lacks the ability to pay.
1344
(b)(i)(A) The responsible agencies shall establish guidelines and procedures for
1345
determining if the person is able to pay the fee.
1346
(B) An agency's implementation of Subsection (2)(b)(i) meets an agency's
1347
obligation to determine an inmate's ability to pay.
1348
(ii) An agency's guidelines and procedures may provide for the assessment of $150
1349
on the inmate's county trust fund account and may allow a negative balance in the
1350
account until the $150 is paid in full.
1351
(3)(a)(i) All fees collected under Subsection (2) shall be deposited into the DNA
1352
Specimen Restricted Account created in Section 53-10-407, except that the
1353
agency collecting the fee may retain not more than $25 per individual specimen
1354
for the costs of obtaining the saliva DNA specimen.
1355
(ii) The agency collecting the $150 fee may not retain from each separate fee more
- 40 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
1356
than $25, and no amount of the $150 fee may be credited to any other fee or
1357
agency obligation.
1358
(b) The responsible agency shall determine the method of collecting the DNA specimen.
1359
Unless the responsible agency determines there are substantial reasons for using a
1360
different method of collection or the person refuses to cooperate with the collection,
1361
the preferred method of collection shall be obtaining a saliva specimen.
1362
(c) The responsible agency may use reasonable force, as established by its guidelines
1363
and procedures, to collect the DNA sample if the person refuses to cooperate with the
1364
collection.
1365
(d) If the judgment places the person on probation, the person shall submit to the
1366
obtaining of a DNA specimen as a condition of the probation.
1367
(e)(i) Under this section a person is required to provide one DNA specimen and pay
1368
the collection fee as required under this section.
1369
(ii) The person shall provide an additional DNA specimen only if the DNA specimen
1370
previously provided is not adequate for analysis.
1371
(iii) The collection fee is not imposed for a second or subsequent DNA specimen
1372
collected under this section.
1373
(f) Any agency that is authorized to obtain a DNA specimen under this part may collect
1374
any outstanding amount of a fee due under this section from any person who owes
1375
any portion of the fee and deposit the amount in the DNA Specimen Restricted
1376
Account created in Section 53-10-407.
1377
(4)(a) The responsible agency shall cause a DNA specimen to be obtained as soon as
1378
possible and transferred to the Department of Public Safety:
1379
(i) after a conviction or an adjudication by the juvenile court;
1380
(ii) on and after January 1, 2011, through December 31, 2014, after the booking of a
1381
person for any offense under Subsection 53-10-403(1)(c); and
1382
(iii) on and after January 1, 2015, after the booking of a person for any felony
1383
offense, as provided under Subsection 53-10-403(1)(d)(ii).
1384
(b) On and after May 13, 2014, through December 31, 2014, the responsible agency may
1385
cause a DNA specimen to be obtained and transferred to the Department of Public
1386
Safety after the booking of a person for any felony offense, as provided under
1387
Subsection 53-10-403(1)(d)(i).
1388
(c) If notified by the Department of Public Safety that a DNA specimen is not adequate
1389
for analysis, the agency shall, as soon as possible:
- 41 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
1390
(i) obtain and transmit an additional DNA specimen; or
1391
(ii) request that another agency that has direct access to the person and that is
1392
authorized to collect DNA specimens under this section collect the necessary
1393
second DNA specimen and transmit it to the Department of Public Safety.
1394
(d) Each agency that is responsible for collecting DNA specimens under this section
1395
shall establish:
1396
(i) a tracking procedure to record the handling and transfer of each DNA specimen it
1397
obtains; and
1398
(ii) a procedure to account for the management of all fees it collects under this
1399
section.
1400
(5)(a) The Department of Corrections is the responsible agency whenever the person is
1401
committed to the custody of or is under the supervision of the Department of
1402
Corrections.
1403
(b) If a minor described in Subsection 53-10-403(3) is not committed to the legal
1404
custody of the Division of Juvenile Justice and Youth Services upon an adjudication,
1405
the juvenile court is the responsible agency regarding the collection of a DNA
1406
specimen from the minor.
1407
(c) If a minor described in Subsection 53-10-403(3) is committed to the legal custody of
1408
the Division of Juvenile Justice and Youth Services upon an adjudication, the
1409
Division of Juvenile Justice and Youth Services is the responsible agency regarding
1410
the collection of a DNA specimen from the minor.
1411
(d) The sheriff operating a county jail is the responsible agency regarding the collection
1412
of DNA specimens from persons who:
1413
(i) have pled guilty to or have been convicted of an offense listed under Subsection
1414
53-10-403(2) but who have not been committed to the custody of or are not under
1415
the supervision of the Department of Corrections;
1416
(ii) are incarcerated in the county jail:
1417
(A) as a condition of probation for a felony offense; or
1418
(B) for a misdemeanor offense for which collection of a DNA specimen is
1419
required;
1420
(iii) on and after January 1, 2011, through May 12, 2014, are booked at the county
1421
jail for any offense under Subsection 53-10-403(1)(c); and
1422
(iv) are booked at the county jail:
1423
(A) by a law enforcement agency that is obtaining a DNA specimen for any felony
- 42 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
1424
offense on or after May 13, 2014, through December 31, 2014, under
1425
Subsection 53-10-404(4)(b); or
1426
(B) on or after January 1, 2015, for any felony offense.
1427
(e) Each agency required to collect a DNA specimen under this section shall:
1428
(i) designate employees to obtain the saliva DNA specimens required under this
1429
section; and
1430
(ii) ensure that employees designated to collect the DNA specimens receive
1431
appropriate training and that the specimens are obtained in accordance with
1432
generally accepted protocol.
1433
(6)(a) As used in this Subsection (6), "department" means the Department of Corrections.
1434
(b) Priority of obtaining DNA specimens by the department is:
1435
(i) first, to obtain DNA specimens of persons who as of July 1, 2002, are in the
1436
custody of or under the supervision of the department before these persons are
1437
released from incarceration, parole, or probation, if their release date is prior to
1438
that of persons under Subsection (6)(b)(ii), but in no case later than July 1, 2004;
1439
and
1440
(ii) second, the department shall obtain DNA specimens from persons who are
1441
committed to the custody of the department or who are placed under the
1442
supervision of the department after July 1, 2002, within 120 days after the
1443
commitment, if possible, but not later than prior to release from incarceration if
1444
the person is imprisoned, or prior to the termination of probation if the person is
1445
placed on probation.
1446
(c) The priority for obtaining DNA specimens from persons under Subsection (6)(b)(ii)
1447
is:
1448
(i) first, persons on probation;
1449
(ii) second, persons on parole; and
1450
(iii) third, incarcerated persons.
1451
(d) Implementation of the schedule of priority under Subsection (6)(c) is subject to the
1452
priority of Subsection (6)(b)(i), to ensure that the Department of Corrections obtains
1453
DNA specimens from persons in the custody of or under the supervision of the
1454
Department of Corrections as of July 1, 2002, prior to their release.
1455
(7)(a) As used in this Subsection (7):
1456
(i) "Court" means the juvenile court.
1457
(ii) "Division" means the Division of Juvenile Justice and Youth Services.
- 43 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
1458
(b) Priority of obtaining DNA specimens by the court from minors under Section
1459
53-10-403 whose cases are under the jurisdiction of the court but who are not in the
1460
legal custody of the division shall be:
1461
(i) first, to obtain specimens from minors whose cases, as of July 1, 2002, are under
1462
the court's jurisdiction, before the court's jurisdiction over the minors' cases
1463
terminates; and
1464
(ii) second, to obtain specimens from minors whose cases are under the jurisdiction
1465
of the court after July 1, 2002, within 120 days of the minor's case being found to
1466
be within the court's jurisdiction, if possible, but no later than before the court's
1467
jurisdiction over the minor's case terminates.
1468
(c) Priority of obtaining DNA specimens by the division from minors under Section
1469
53-10-403 who are committed to the legal custody of the division shall be:
1470
(i) first, to obtain specimens from minors who as of July 1, 2002, are within the
1471
division's legal custody and who have not previously provided a DNA specimen
1472
under this section, before termination of the division's legal custody of these
1473
minors; and
1474
(ii) second, to obtain specimens from minors who are placed in the legal custody of
1475
the division after July 1, 2002, within 120 days of the minor's being placed in the
1476
custody of the division, if possible, but no later than before the termination of the
1477
court's jurisdiction over the minor's case.
1478
(8)(a) The Department of Corrections, the juvenile court, the Division of Juvenile Justice
1479
and Youth Services, and all law enforcement agencies in the state shall by policy
1480
establish procedures for obtaining saliva DNA specimens, and shall provide training
1481
for employees designated to collect saliva DNA specimens.
1482
(b)(i) The department may designate correctional officers, including those employed
1483
by the adult probation and parole section of the department, to obtain the saliva
1484
DNA specimens required under this section.
1485
(ii) The department shall ensure that the designated employees receive appropriate
1486
training and that the specimens are obtained in accordance with accepted protocol.
1487
(c) Blood DNA specimens shall be obtained in accordance with Section 53-10-405.
1488
Section 15. Section 53-29-101 is enacted to read:
1489
CHAPTER 29. SEX, KIDNAP, AND CHILD ABUSE OFFENDER REGISTRY
1490
Part 1. General Provisions
- 44 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
1491
53-29-101 . Definitions.
1492
As used in this chapter:
1493
(1) "Bureau" means the Bureau of Criminal Identification of the Department of Public
1494
Safety established in Section 53-10-201.
1495
(2) "Certificate of eligibility" means the certificate issued by the bureau described in
1496
Section 53-29-207.
1497
(3) "Child abuse offender" means an individual who meets the requirements under
1498
Subsection 53-29-202(2)(a).
1499
(4)(a) "Convicted" means a plea or conviction of:
1500
(i) guilty;
1501
(ii) guilty with a mental illness; or
1502
(iii) no contest.
1503
(b) "Convicted" includes, except as provided in Subsection 53-29-202(4), the period a
1504
plea is held in abeyance pursuant to a plea in abeyance agreement as defined in
1505
Section 77-2a-1.
1506
(c) "Convicted" does not include:
1507
(i) a withdrawn or dismissed plea in abeyance;
1508
(ii) a diversion agreement; or
1509
(iii) an adjudication of a minor for an offense under Section 80-6-701.
1510
(5) "Division" means the Division of Juvenile Justice and Youth Services.
1511
(6) "Employed" means employment that is full time or part time, whether financially
1512
compensated, volunteered, or for the purpose of government or educational benefit.
1513
(7) "Kidnap offender" means an individual who meets the requirements under Subsection
1514
53-29-202(2)(c).
1515
(8) "Offender" means an individual who qualifies as a sex offender, a kidnap offender, or a
1516
child abuse offender as described in Section 53-29-202.
1517
(9)(a) "Online identifier" means any electronic mail, chat, instant messenger, social
1518
networking, or similar name used for Internet communication.
1519
(b) "Online identifier" does not include date of birth, social security number, PIN
1520
number, or Internet passwords.
1521
(10) "Primary residence" means the location where an offender regularly resides, even if the
1522
offender intends to move to another location or return to another location at a future date.
1523
(11) "Registrable offense" means an offense described in Subsection 53-29-202(1).
1524
(12) "Registration website" means the Sex, Kidnap, and Child Abuse Offender Notification
- 45 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
1525
and Registration website described in Section 53-29-404.
1526
(13) "Registry" means the Sex, Kidnap, and Child Abuse Offender Registry maintained by
1527
the department and created in Section 53-29-102 to monitor and track offenders.
1528
(14) "Registry office" means the office within the department that manages the Sex,
1529
Kidnap, and Child Abuse Offender Registry.
1530
(15) "Sex offender" means an individual who meets the requirements under Subsection
1531
53-29-202(2)(b).
1532
(16) "Vehicle" means a motor vehicle, an aircraft, or a watercraft subject to registration in
1533
any jurisdiction.
1534
Section 16. Section 53-29-102 is enacted to read:
1535
53-29-102 . Sex, Kidnap, and Child Abuse Offender Registry -- Creation --
1536
Purpose.
1537
(1) The department, to assist law enforcement in investigating kidnapping and sex-related
1538
crimes and in apprehending offenders, shall:
1539
(a) develop and operate a system known as the Sex, Kidnap, and Child Abuse Offender
1540
Registry to collect, analyze, maintain, and disseminate information on offenders and
1541
registrable offenses; and
1542
(b) make information listed in Subsection 53-29-404(3) available to the public.
1543
(2) This chapter does not create or impose any duty on any individual to request or obtain
1544
information regarding any offender from the department.
1545
Section 17. Section 53-29-201 is enacted to read:
1546
Part 2. Registrable Offenses, Timelines for Registration, and Petitions for Removal
1547
53-29-201 . Definitions.
1548
As used in this part:
1549
(1) "Court" means a state, federal, or military court.
1550
(2) "External jurisdiction" means:
1551
(a) a state of the United States not including Utah;
1552
(b) the United States federal government;
1553
(c) Indian country;
1554
(d) a United States territory;
1555
(e) the United States military; or
1556
(f) Canada, Australia, New Zealand, or the United Kingdom.
1557
(3) "Indian country" means:
1558
(a) all land within the limits of an Indian reservation under the jurisdiction of the United
- 46 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
1559
States government, regardless of the issuance of any patent, and includes
1560
rights-of-way running through the reservation;
1561
(b) all dependent Indian communities within the borders of the United States whether
1562
within the original or subsequently acquired territory, and whether or not within the
1563
limits of a state; and
1564
(c) all Indian allotments, including the Indian allotments to which the Indian titles have
1565
not been extinguished, including rights-of-way running through the allotments.
1566
(4) "Natural parent" means a minor's biological or adoptive parent, including the minor's
1567
noncustodial parent.
1568
(5) "Traffic offense" does not include a violation of Title 41, Chapter 6a, Part 5, Driving
1569
Under the Influence and Reckless Driving.
1570
The following section is affected by a coordination clause at the end of this bill.
1571
Section 18. Section 53-29-202 is enacted to read:
1572
53-29-202 . Registrable offenses -- Status as a sex offender, kidnap offender, and
1573
child abuse offender established.
1574
(1) An individual is an offender described in Subsection (2) and subject to the requirements,
1575
restrictions, and penalties described in this chapter if the individual:
1576
(a) has been convicted in this state of:
1577
(i) aggravated child abuse under Subsection 76-5-109.2(3)(a) or (b);
1578
(ii) a felony or class A misdemeanor violation of enticing a minor under Section
1579
76-4-401;
1580
(iii) sexual exploitation of a vulnerable adult under Section 76-5b-202;
1581
(iv) human trafficking for sexual exploitation under Section 76-5-308.1;
1582
(v) human trafficking of a child for sexual exploitation under Subsection
1583
76-5-308.5(4)(b);
1584
(vi) aggravated human trafficking for sexual exploitation under Section 76-5-310;
1585
(vii) human trafficking of a vulnerable adult for sexual exploitation under Section
1586
76-5-311;
1587
(viii) unlawful sexual activity with a minor under Section 76-5-401, except as
1588
provided in Subsection 76-5-401(3)(b) or (c);
1589
(ix) sexual abuse of a minor under Section 76-5-401.1, on the individual's first
1590
offense unless the individual was younger than 21 years old at the time of the
1591
offense then on the individual's second offense;
1592
(x) unlawful sexual conduct with a 16 or 17 year old under Section 76-5-401.2;
- 47 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
1593
(xi) rape under Section 76-5-402;
1594
(xii) rape of a child under Section 76-5-402.1;
1595
(xiii) object rape under Section 76-5-402.2;
1596
(xiv) object rape of a child under Section 76-5-402.3;
1597
(xv) a felony violation of forcible sodomy under Section 76-5-403;
1598
(xvi) sodomy on a child under Section 76-5-403.1;
1599
(xvii) forcible sexual abuse under Section 76-5-404;
1600
(xviii) sexual abuse of a child under Section 76-5-404.1;
1601
(xix) aggravated sexual abuse of a child under Section 76-5-404.3;
1602
(xx) aggravated sexual assault under Section 76-5-405;
1603
(xxi) custodial sexual relations under Section 76-5-412, if the victim in custody is
1604
younger than 18 years old and the offense is committed on or after May 10, 2011;
1605
(xxii) sexual exploitation of a minor under Section 76-5b-201;
1606
(xxiii) aggravated sexual exploitation of a minor under Section 76-5b-201.1;
1607
(xxiv) sexual extortion or aggravated sexual extortion under Section 76-5b-204;
1608
(xxv) incest under Section 76-7-102;
1609
(xxvi) lewdness under Section 76-9-702, if the individual has been convicted of the
1610
offense four or more times;
1611
(xxvii) sexual battery under Section 76-9-702.1, if the individual has been convicted
1612
of the offense four or more times;
1613
(xxviii) any combination of convictions of lewdness under Section 76-9-702, and of
1614
sexual battery under Section 76-9-702.1, that total four or more convictions;
1615
(xxix) lewdness involving a child under Section 76-9-702.5;
1616
(xxx) a felony or class A misdemeanor violation of voyeurism under Section
1617
76-9-702.7;
1618
(xxxi) aggravated exploitation of prostitution under Section 76-10-1306;
1619
(xxxii) kidnapping under Subsection 76-5-301(2)(c) or (d), if the offender was not the
1620
natural parent of the child victim;
1621
(xxxiii) child kidnapping under Section 76-5-301.1, if the offender was not the
1622
natural parent of the child victim;
1623
(xxxiv) aggravated kidnapping under Section 76-5-302, if the offender was not the
1624
natural parent of the child victim;
1625
(xxxv) human trafficking for labor under Section 76-5-308, if the offender was not
1626
the natural parent of the child victim;
- 48 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
1627
(xxxvi) human smuggling under Section 76-5-308.3, if the offender was not the
1628
natural parent of the child victim;
1629
(xxxvii) human trafficking of a child for labor under Subsection 76-5-308.5(4)(a), if
1630
the offender was not the natural parent of the child victim;
1631
(xxxviii) aggravated human trafficking for labor under Section 76-5-310, if the
1632
offender was not the natural parent of the child victim;
1633
(xxxix) aggravated human smuggling under Section 76-5-310.1, if the offender was
1634
not the natural parent of the child victim;
1635
(xl) human trafficking of a vulnerable adult for labor under Section 76-5-311, if the
1636
offender was not the natural parent of the child victim; or
1637
(xli) attempting, soliciting, or conspiring to commit a felony violation of an offense
1638
listed in Subsections (1)(a)(i) through (xl);
1639
(b)(i) has been convicted of a criminal offense, or an attempt, solicitation, or
1640
conspiracy to commit a criminal offense in an external jurisdiction that is
1641
substantially equivalent to the offense listed in Subsection (1)(a); and
1642
(ii)(A) is a Utah resident; or
1643
(B) is not a Utah resident and is in this state for a total of 10 days in a 12-month
1644
period, regardless of whether the individual intends to permanently reside in
1645
this state;
1646
(c)(i)(A) is required to register on a registry in an external jurisdiction for
1647
individuals who have committed an offense listed in Subsection (1)(a) or a
1648
substantially equivalent offense;
1649
(B) is ordered by a court to register on a registry for individuals who have
1650
committed an offense listed in Subsection (1)(a) or a substantially equivalent
1651
offense; or
1652
(C) would be required to register on a registry in an external jurisdiction for
1653
individuals who have committed an offense listed in Subsection (1)(a), or a
1654
substantially equivalent offense, if residing in the external jurisdiction of the
1655
conviction regardless of the date of the conviction or a previous registration
1656
requirement; and
1657
(ii) is in this state for a total of 10 days in a 12-month period, regardless of whether
1658
the individual intends to permanently reside in this state;
1659
(d)(i)(A) is a nonresident regularly employed or working in this state; or
1660
(B) who is a student in this state; and
- 49 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
1661
(ii)(A) is convicted of an offense listed in Subsection (1)(a) or a substantially
1662
equivalent offense in an external jurisdiction; or
1663
(B) is required to register on a sex, kidnap, and child abuse registry, or an
1664
equivalent registry, in the individual's state of residence based on a conviction
1665
for an offense that is not substantially equivalent to an offense listed in
1666
Subsection (1)(a);
1667
(e) is found not guilty by reason of insanity in this state or in an external jurisdiction of
1668
an offense listed in Subsection (1)(a) or a substantially equivalent offense; or
1669
(f)(i) is adjudicated under Section 80-6-701 for one or more offenses listed in
1670
Subsection (1)(a); and
1671
(ii) has been committed to the division for secure care, as defined in Section 80-1-102,
1672
for that offense if:
1673
(A) the individual remains in the division's custody until 30 days before the
1674
individual's 21st birthday;
1675
(B) the juvenile court extended the juvenile court's jurisdiction over the individual
1676
under Section 80-6-605 and the individual remains in the division's custody
1677
until 30 days before the individual's 25th birthday; or
1678
(C) the individual is moved from the division's custody to the custody of the
1679
department before expiration of the division's jurisdiction over the individual.
1680
(2) Subject to Subsection (3), an individual is:
1681
(a) a child abuse offender if the individual:
1682
(i) has committed, attempted, solicited, or conspired to commit an offense described
1683
in Subsection (1)(a)(i); or
1684
(ii) meets a requirement described in Subsections (1)(b) through (e) for an offense
1685
described in Subsection (1)(a)(i) or a substantially equivalent offense;
1686
(b) a sex offender if the individual:
1687
(i) has committed, attempted, solicited, or conspired to commit an offense described
1688
in Subsections (1)(a)(ii) through (xxxi); or
1689
(ii) meets a requirement described in Subsections (1)(b) through (e) for an offense
1690
described in Subsections (1)(a)(ii) through (xxxi) or a substantially equivalent
1691
offense; or
1692
(c) a kidnap offender if the individual:
1693
(i) has committed, attempted, solicited, or conspired to commit an offense described
1694
in Subsections (1)(a)(xxxii) through (xl); or
- 50 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
1695
(ii) meets a requirement described in Subsections (1)(b) through (e) for an offense
1696
described in Subsections (1)(a)(xxxii) through (xl) or a substantially equivalent
1697
offense.
1698
(3) An individual who has committed a registrable offense described in Subsection
1699
(1)(d)(ii)(B) in an external jurisdiction that is not substantially equivalent to an offense
1700
described in Subsection (1)(a) and is required to register on a sex, kidnap, and child
1701
abuse registry, or an equivalent registry, in the individual's state of residence is a child
1702
abuse offender, sex offender, or kidnap offender based on the individual's status on the
1703
registry in the individual's state of residence.
1704
(4) Notwithstanding Subsection 53-29-101(4)(a), a plea of guilty or nolo contendere to a
1705
charge of sexual battery or lewdness that is held in abeyance under Title 77, Chapter 2a,
1706
Pleas in Abeyance, is the equivalent of a conviction even if the charge is subsequently
1707
reduced or dismissed in accordance with the plea in abeyance agreement.
1708
The following section is affected by a coordination clause at the end of this bill.
1709
Section 19. Section 53-29-203 is enacted to read:
1710
53-29-203 . Registration lengths -- 10 years -- Lifetime.
1711
(1) Except as provided in Subsection (2), (3), or (4), an individual who commits a
1712
registrable offense is required to register on the registry for:
1713
(a) 10 years after the day on which the offender's sentence for the offense has been
1714
terminated if the registrable offense is for:
1715
(i) a felony or class A misdemeanor violation of enticing a minor under Section
1716
76-4-401, if the offender enticed the minor to engage in sexual activity that is one
1717
of the offenses described in Subsections (1)(a)(ii) through (xxiii);
1718
(ii) aggravated child abuse under Subsection 76-5-109.2(3)(a) or (b);
1719
(iii) kidnapping under Subsection 76-5-301(2)(c) or (d), if the offender was not the
1720
natural parent of the child victim;
1721
(iv) human trafficking for labor under Section 76-5-308, if the offender was not the
1722
natural parent of the child victim;
1723
(v) human smuggling under Section 76-5-308.3, if the offender was not the natural
1724
parent of the child victim;
1725
(vi) human trafficking of a child for labor under Subsection 76-5-308.5(4)(a), if the
1726
offender was not the natural parent of the child victim;
1727
(vii) aggravated human trafficking for labor under Section 76-5-310, if the offender
1728
was not the natural parent of the child victim;
- 51 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
1729
(viii) aggravated human smuggling under Section 76-5-310.1;
1730
(ix) human trafficking of a vulnerable adult for labor under Section 76-5-311;
1731
(x) a felony violation of unlawful sexual activity with a minor under Section 76-5-401;
1732
(xi) sexual abuse of a minor under Section 76-5-401.1;
1733
(xii) unlawful sexual conduct with a 16 or 17 year old under Section 76-5-401.2;
1734
(xiii) forcible sexual abuse under Section 76-5-404;
1735
(xiv) custodial sexual relations under Section 76-5-412;
1736
(xv) sexual exploitation of a vulnerable adult under Section 76-5b-202;
1737
(xvi) sexual extortion under Subsection 76-5b-204(2)(a);
1738
(xvii) incest under Section 76-7-102;
1739
(xviii) four or more convictions of lewdness under Section 76-9-702;
1740
(xix) four or more convictions of sexual battery under Section 76-9-702.1;
1741
(xx) any combination of convictions of lewdness under Section 76-9-702, and of
1742
sexual battery under Section 76-9-702.1, that total four or more convictions;
1743
(xxi) lewdness involving a child under Section 76-9-702.5;
1744
(xxii) a felony or class A misdemeanor violation of voyeurism under Section
1745
76-9-702.7;
1746
(xxiii) aggravated exploitation of prostitution under Section 76-10-1306, committed
1747
on or before May 9, 2011;
1748
(xxiv) attempting, soliciting, or conspiring to commit an offense listed in Subsections
1749
(1)(a)(i) through (xxiii) if the attempt, solicitation, or conspiracy is a registrable
1750
offense; or
1751
(xxv) attempting, soliciting, or conspiring to commit:
1752
(A) aggravated kidnapping under Section 76-5-302, if the offender was not the
1753
natural parent of the child victim;
1754
(B) human trafficking for sexual exploitation under Section 76-5-308.1, if the
1755
offender was not the natural parent of the child victim;
1756
(C) human trafficking of a child for sexual exploitation under Subsection
1757
76-5-308.5(4)(b), if the offender was not the natural parent of the child victim;
1758
(D) aggravated human trafficking for sexual exploitation under Section 76-5-310,
1759
if the offender was not the natural parent of the child victim;
1760
(E) human trafficking of a vulnerable adult for sexual exploitation under Section
1761
76-5-311, if the offender was not the natural parent of the child victim;
1762
(F) forcible sodomy under Section 76-5-403;
- 52 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
1763
(G) sexual abuse of a child under Section 76-5-404.1;
1764
(H) sexual exploitation of a minor under Section 76-5b-201;
1765
(I) aggravated sexual exploitation of a minor under Section 76-5b-201.1;
1766
(J) aggravated sexual extortion under Subsection 76-5b-204(2)(b); or
1767
(K) aggravated exploitation of prostitution under Section 76-10-1306, on or after
1768
May 10, 2011; or
1769
(b) the offender's lifetime if the registrable offense is:
1770
(i) a conviction for an offense described in Subsection (1)(a), if the offender has, at
1771
the time of conviction for the offense:
1772
(A) previously been convicted of an offense described in Subsection (1)(a), or a
1773
substantially equivalent offense in an external jurisdiction; or
1774
(B) previously been required to register as an offender for an offense described in
1775
Subsection (1)(a) committed as a juvenile;
1776
(ii) a following offense, including attempting, soliciting, or conspiring to commit a
1777
felony violation of:
1778
(A) child kidnapping under Section 76-5-301.1, if the offender was not the natural
1779
parent of the child victim;
1780
(B) rape under Section 76-5-402;
1781
(C) rape of a child under Section 76-5-402.1;
1782
(D) object rape under Section 76-5-402.2;
1783
(E) object rape of a child under Section 76-5-402.3;
1784
(F) sodomy on a child under Section 76-5-403.1;
1785
(G) aggravated sexual abuse of a child under Section 76-5-404.3; or
1786
(H) aggravated sexual assault under Section 76-5-405;
1787
(iii) aggravated kidnapping under Section 76-5-302, if the offender was not the
1788
natural parent of the child victim;
1789
(iv) human trafficking for sexual exploitation under Section 76-5-308.1, if the
1790
offender was not the natural parent of the child victim;
1791
(v) human trafficking of a child for sexual exploitation under Subsection
1792
76-5-308.5(4)(b), if the offender was not the natural parent of the child victim;
1793
(vi) aggravated human trafficking for sexual exploitation under Section 76-5-310, if
1794
the offender was not the natural parent of the child victim;
1795
(vii) human trafficking of a vulnerable adult for sexual exploitation under Section
1796
76-5-311, if the offender was not the natural parent of the child victim;
- 53 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
1797
(viii) forcible sodomy under Section 76-5-403;
1798
(ix) sexual abuse of a child under Section 76-5-404.1;
1799
(x) sexual exploitation of a minor under Section 76-5b-201;
1800
(xi) aggravated sexual exploitation of a minor under Section 76-5b-201.1;
1801
(xii) aggravated sexual extortion under Subsection 76-5b-204(2)(b);
1802
(xiii) aggravated exploitation of prostitution under Section 76-10-1306, on or after
1803
May 10, 2011; or
1804
(xiv) a felony violation of enticing a minor under Section 76-4-401, if the offender
1805
enticed the minor to engage in sexual activity that is one of the offenses described
1806
in Subsections (1)(b)(ii) through (xiii).
1807
(2) An individual who qualifies as an offender based on a conviction in an external
1808
jurisdiction for a registrable offense, or a substantially equivalent offense, and is on an
1809
external jurisdiction's sex, kidnap, and child abuse registry, or an equivalent registry, is
1810
required to register on the registry for the time period required by the external
1811
jurisdiction.
1812
(3) If the sentencing court at any time after an offender is convicted of an offense requiring
1813
lifetime registration described in Subsection (1)(b) determines that the offender was
1814
under 21 years old at the time the offense was committed and the offense did not involve
1815
force or coercion, the requirement that the offender register for the offender's lifetime
1816
does not apply and the offender shall register for 10 years after the day on which the
1817
offender's sentence for the offense has been terminated.
1818
(4) Except for an individual who is adjudicated for a registrable offense and is an offender
1819
who meets the requirements under Subsection 53-29-202(1)(f), an individual who is
1820
under 18 years old and commits a registrable offense after May 3, 2023, is not subject to
1821
registration requirements under this chapter unless the offender:
1822
(a) is charged by criminal information in juvenile court under Section 80-6-503;
1823
(b) is bound over to district court in accordance with Section 80-6-504; and
1824
(c) is convicted of a registrable offense.
1825
(5) An offender subject to the 10-year or lifetime registration requirements under
1826
Subsection (1) may petition the court for an order of removal from the registry in
1827
accordance with Section 53-29-204, 53-29-205, or 53-29-206.
1828
The following section is affected by a coordination clause at the end of this bill.
1829
Section 20. Section 53-29-204 is enacted to read:
1830
53-29-204 . Five-year petition for removal from registry -- Eligibility.
- 54 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
1831
(1) An offender who is required to register on the registry for a registrable offense
1832
described in Subsection (2) that is subject to a 10-year registration period, as described
1833
in Section 53-29-203, is eligible to petition the court under Section 53-29-207 for an
1834
order of removal from the registry after five years after the day on which the offender's
1835
sentence for the offense has been terminated if:
1836
(a) the offense is the only offense for which the offender was required to register;
1837
(b) the offender has not been convicted of another offense, excluding a traffic offense,
1838
after the day on which the offender was convicted of the offense for which the
1839
offender is required to register, as evidenced by a certificate of eligibility issued by
1840
the bureau;
1841
(c) the offender successfully completed all treatment ordered by the court or the Board
1842
of Pardons and Parole relating to the offense; and
1843
(d) the offender has paid all restitution ordered by the court or the Board of Pardons and
1844
Parole relating to the offense.
1845
(2) The offenses that qualify for a five-year petition for an order of removal from the
1846
registry referenced in Subsection (1) are:
1847
(a) a class A misdemeanor violation of enticing a minor under Section 76-4-401;
1848
(b) kidnapping under Subsection 76-5-301(2)(c) or (d);
1849
(c) a felony violation of unlawful sexual activity with a minor under Section 76-5-401,
1850
if, at the time of the offense, the offender is not more than 10 years older than the
1851
victim;
1852
(d) sexual abuse of a minor under Section 76-5-401.1, if, at the time of the offense, the
1853
offender is not more than 10 years older than the victim;
1854
(e) unlawful sexual conduct with a 16 or 17 year old under Section 76-5-401.2, if at the
1855
time of the offense, the offender is not more than 15 years older than the victim;
1856
(f) a class A misdemeanor violation of voyeurism under Section 76-9-702.7;
1857
(g) attempting, soliciting, or conspiring to commit an offense listed in Subsections (2)(a)
1858
through (f) if the attempt, solicitation, or conspiracy is a registrable offense; and
1859
(h) an offense committed in an external jurisdiction that is not substantially equivalent to
1860
a registrable offense described in Subsection 53-29-202(1)(a).
1861
The following section is affected by a coordination clause at the end of this bill.
1862
Section 21. Section 53-29-205 is enacted to read:
1863
53-29-205 . Ten-year petition for removal from registry -- Eligibility.
1864
(1) An offender who is required to register on the registry for a registrable offense
- 55 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
1865
described in Subsection (3) subject to a 10-year registration period as described in
1866
Section 53-29-203 is eligible to petition the court under Section 53-29-207 for an order
1867
of removal from the registry at a 10-year after entrance into the community period
1868
described in Subsection (2) if:
1869
(a) the offender has not been convicted of another offense that is a class A misdemeanor,
1870
felony, or capital felony within the most recent 10-year period after the date
1871
described in Subsection (2), as evidenced by a certificate of eligibility issued by the
1872
bureau;
1873
(b) the offender successfully completed all treatment ordered by the court or the Board
1874
of Pardons and Parole relating to the offense; and
1875
(c) the offender has paid all restitution ordered by the court or the Board of Pardons and
1876
Parole relating to the offense.
1877
(2) An offender who qualifies under Subsection (1) may petition the court under Section
1878
53-29-207 for an order of removal from the registry if 10 years have passed after the
1879
later of the following events in which the offender entered into the community:
1880
(a) the day on which the offender was placed on probation;
1881
(b) the day on which the offender was released from incarceration to parole;
1882
(c) the day on which the offender's sentence was terminated without parole;
1883
(d) the day on which the offender entered a community-based residential program; or
1884
(e) for a minor, as defined in Section 80-1-102, the day on which the division's custody
1885
of the offender was terminated.
1886
(3) The offenses that qualify for a 10-year petition for an order of removal from the registry
1887
referenced in Subsection (1) are:
1888
(a) a felony violation of enticing a minor under Section 76-4-401, if the offender enticed
1889
the minor to engage in sexual activity that is one of the offenses described in
1890
Subsections (3)(b) through (v);
1891
(b) aggravated child abuse under Subsection 76-5-109.2(3)(a) or (b);
1892
(c) human trafficking for labor under Section 76-5-308;
1893
(d) human smuggling under Section 76-5-308.3;
1894
(e) human trafficking of a child for labor under Subsection 76-5-308.5(4)(a);
1895
(f) aggravated human trafficking for labor under Section 76-5-310;
1896
(g) aggravated human smuggling under Section 76-5-310.1;
1897
(h) human trafficking of a vulnerable adult for labor under Section 76-5-311;
1898
(i) a felony violation of unlawful sexual activity with a minor under Section 76-5-401, if,
- 56 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
1899
at the time of the offense, the offender is more than 10 years older than the victim;
1900
(j) sexual abuse of a minor under Section 76-5-401.1, if, at the time of the offense, the
1901
offender is more than 10 years older than the victim;
1902
(k) unlawful sexual conduct with a 16 or 17 year old under Section 76-5-401.2, if, at the
1903
time of the offense, the offender is more than 15 years older than the victim;
1904
(l) forcible sexual abuse under Section 76-5-404;
1905
(m) custodial sexual relations under Section 76-5-412, if the victim in custody is
1906
younger than 18 years old and the offense is committed on or after May 10, 2011;
1907
(n) sexual exploitation of a vulnerable adult under Section 76-5b-202;
1908
(o) sexual extortion under Subsection 76-5b-204(2)(a);
1909
(p) incest under Section 76-7-102;
1910
(q) four or more convictions of lewdness under Section 76-9-702;
1911
(r) four or more convictions of sexual battery under Section 76-9-702.1;
1912
(s) any combination of convictions of lewdness under Section 76-9-702, and of sexual
1913
battery under Section 76-9-702.1, that total four or more convictions;
1914
(t) lewdness involving a child under Section 76-9-702.5;
1915
(u) a felony violation of voyeurism under Section 76-9-702.7;
1916
(v) aggravated exploitation of prostitution under Section 76-10-1306, committed on or
1917
before May 9, 2011;
1918
(w) attempting, soliciting, or conspiring to commit an offense listed in Subsections
1919
(3)(a) through (v) if the attempt, solicitation, or conspiracy is a registrable offense;
1920
(x) attempting, soliciting, or conspiring to commit a felony violation of:
1921
(i) child kidnapping under Section 76-5-301.1, if the offender was not the natural
1922
parent of the child victim;
1923
(ii) rape under Section 76-5-402;
1924
(iii) rape of a child under Section 76-5-402.1;
1925
(iv) object rape under Section 76-5-402.2;
1926
(v) object rape of a child under Section 76-5-402.3;
1927
(vi) sodomy on a child under Section 76-5-403.1;
1928
(vii) aggravated sexual abuse of a child under Section 76-5-404.3; or
1929
(viii) aggravated sexual assault under Section 76-5-405; or
1930
(y) an offense described in Subsection 53-29-203(1)(b) that would otherwise be subject
1931
to a 20-year petition for removal as described in Section 53-29-206, if:
1932
(i) the sentencing court determines that the offender was under 21 years old at the
- 57 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
1933
time the offense was committed; and
1934
(ii) the offense did not involve force or coercion as described in Subsection
1935
53-29-203(3).
1936
(4) An individual who is as an offender under Section 53-29-202 based on a conviction in
1937
an external jurisdiction for a registrable offense, or a substantially equivalent offense,
1938
and is required to register on the external jurisdiction's sex, kidnap, or child abuse
1939
offender registry, or an equivalent registry, may petition for removal from the registry in
1940
accordance with the requirements of this section if the individual:
1941
(a) does not have a lifetime registration requirement on the external jurisdiction's sex,
1942
kidnap, or child abuse offender registry, or an equivalent registry;
1943
(b) meets the requirements described in Subsections (1)(a) through (c);
1944
(c) has resided in this state for at least 183 days in a year for two consecutive years; and
1945
(d) intends to primarily reside in this state.
1946
Section 22. Section 53-29-206 is enacted to read:
1947
53-29-206 . Twenty-year petition for removal from registry -- Eligibility.
1948
(1) An offender who is required to register on the registry for a registrable offense subject
1949
to a lifetime registration period described in Subsection 53-29-203(1)(b) is eligible to
1950
petition the court under Section 53-29-207 for an order of removal from the registry at a
1951
20-year entrance into the community period described in Subsection (2) if:
1952
(a) the offender has not been convicted of another offense that is a class A misdemeanor,
1953
felony, or capital felony within the most recent 20-year period after the date
1954
described in Subsection (2), as evidenced by a certificate of eligibility issued by the
1955
bureau;
1956
(b) the offender successfully completed all treatment ordered by the court or the Board
1957
of Pardons and Parole relating to the offense;
1958
(c) the offender has paid all restitution ordered by the court or the Board of Pardons and
1959
Parole relating to the offense; and
1960
(d) the offender submits to an evidence-based risk assessment that:
1961
(i) meets the standards for the current risk assessment, score, and risk level required
1962
by the Board of Pardons and Parole for parole termination requests;
1963
(ii) is completed within the six months before the date on which the petition is filed;
1964
and
1965
(iii) describes the evidence-based risk assessment of the current level of risk to the
1966
safety of the public posed by the offender.
- 58 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
1967
(2) An offender who qualifies under Subsection (1) may petition the court under Section
1968
53-29-207 for an order of removal from the registry if 20 years have passed after the
1969
later of the following events in which the offender has entered into the community:
1970
(a) the day on which the offender was placed on probation;
1971
(b) the day on which the offender was released from incarceration to parole;
1972
(c) the day on which the offender's sentence was terminated without parole;
1973
(d) the day on which the offender entered a community-based residential program; or
1974
(e) for a minor, as defined in Section 80-1-102, the day on which the division's custody
1975
of the offender was terminated.
1976
(3) An individual who is as an offender under Section 53-29-202 based on a conviction in
1977
an external jurisdiction for a registrable offense or a substantially equivalent offense,
1978
and is required to register on the external jurisdiction's sex, kidnap, or child abuse
1979
offender registry, or an equivalent registry, may petition for removal from the registry in
1980
accordance with the requirements of this section if the individual:
1981
(a) is required to register on the external jurisdiction's sex, kidnap, or child abuse
1982
offender registry, or an equivalent registry, for the individual's lifetime;
1983
(b) meets the requirements described in Subsections (1)(a) through (d);
1984
(c) has resided in this state for at least 183 days in a year for two consecutive years; and
1985
(d) intends to primarily reside in this state.
1986
Section 23. Section 53-29-207 is enacted to read:
1987
53-29-207 . Process to petition for removal from registry -- Offender, bureau,
1988
court, and prosecutor responsibilities.
1989
(1) Before an offender who is eligible to petition for an order of removal from the registry
1990
as described in Section 53-29-204, 53-29-205, or 53-29-206 may file a petition with the
1991
court for an order of removal from the registry, the offender shall apply to the bureau for
1992
a certificate of eligibility for removal from the registry that states that the offender has
1993
met certain qualifications for removal.
1994
(2) After the bureau receives an offender's application for a certificate of eligibility for
1995
removal from the registry, the bureau shall:
1996
(a) perform a check of records of governmental agencies, including national criminal
1997
databases, to determine whether an offender meets the requirements described in:
1998
(i) Subsection 53-29-204(1), if the offender is seeking a five-year petition for
1999
removal;
2000
(ii) Subsections 53-29-205(1) and (2), if the offender is seeking a 10-year petition for
- 59 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
2001
removal; or
2002
(iii) Subsections 53-29-206(1) and (2), if the offender is seeking a 20-year petition
2003
for removal; and
2004
(b) if the bureau determines that the offender meets the requirements described in
2005
Subsection (2)(a), issue a certificate of eligibility for removal from the registry to the
2006
offender, which is valid for 90 days after the day on which the bureau issues the
2007
certificate.
2008
(3)(a) After an offender has received the certificate of eligibility for removal from the
2009
registry described in Subsection (2), the offender may petition the court for an order
2010
of removal from the registry, and shall include in the petition:
2011
(i) the original information or indictment regarding the registrable offense that the
2012
offender committed;
2013
(ii) the court docket; and
2014
(iii) the certificate of eligibility for removal from the registry.
2015
(b) An offender who files a petition with the court as described in Subsection (3)(a) shall
2016
provide a copy of the petition to the prosecutor.
2017
(4) A prosecutor, upon receipt of the petition described in Subsection (3), shall:
2018
(a) provide notice of the petition by first-class mail to the victim at the most recent
2019
address of record on file or, if the victim is still a minor under 18 years old, to the
2020
parent or guardian of the victim, that includes:
2021
(i) a copy of the petition;
2022
(ii) an explanation that the victim has a right to object to the removal of the offender
2023
from the registry or make other recommendations to the court; and
2024
(iii) instructions for how the victim can file an objection or recommendation with the
2025
court; and
2026
(b) provide the following, if available, to the court within 30 days after the day on which
2027
the prosecutor receives the petition:
2028
(i) the presentencing report created for the offender based on the registrable offense
2029
committed by the offender;
2030
(ii) any evaluation done as part of sentencing for the registrable offense; and
2031
(iii) other information the prosecutor determines the court should consider.
2032
(5) A victim, or the victim's parent or guardian if the victim is a minor under 18 years old,
2033
may respond to a petition described in Subsection (3) by filing a recommendation or
2034
objection with the court within 45 days after the day on which the petition is mailed to
- 60 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
2035
the victim.
2036
(6)(a) A court receiving a petition under this section shall:
2037
(i) review the petition and all documents submitted with the petition; and
2038
(ii) hold a hearing if requested by the prosecutor or the victim.
2039
(b)(i) Except as provided in Subsection (6)(b)(ii) or (iii), the court may grant the
2040
petition for removal and order the removal of the offender from the registry if the
2041
court determines that the offender has met the requirements for issuance of a
2042
certificate of eligibility for removal issued under Subsection (2) and removal is
2043
not contrary to the interests of the public.
2044
(ii) When considering a petition filed by an offender subject to a lifetime registration
2045
requirement and eligible for a 20-year petition for removal from the registry as
2046
described in Section 53-29-206, the court shall determine whether the offender has
2047
demonstrated, by clear and convincing evidence, that the offender is rehabilitated
2048
and does not pose a threat to the safety of the public.
2049
(iii) In making the determination described in Subsection (6)(b)(ii), the court may
2050
consider:
2051
(A) the nature and degree of violence involved in the registrable offense;
2052
(B) the age and number of victims of the registrable offense;
2053
(C) the age of the offender at the time the registrable offense was committed;
2054
(D) the offender's performance while on supervision for the registrable offense;
2055
(E) the offender's stability in employment and housing;
2056
(F) the offender's community and personal support system;
2057
(G) other criminal and relevant noncriminal behavior of the offender both before
2058
and after the offender committed the registrable offense;
2059
(H) if applicable, the level of risk posed by the offender as evidenced by the
2060
evidence-based risk assessment described in Subsection 53-29-206(1)(d); and
2061
(I) any other relevant factors.
2062
(c) In determining whether removal from the registry is contrary to the interests of the
2063
public, the court may not consider removal unless the offender has substantially
2064
complied with all registration requirements under this chapter at all times.
2065
(d) If the court grants the petition, the court shall forward a copy of the order directing
2066
removal of the offender from the registry to the department and the office of the
2067
prosecutor.
2068
(e)(i) Except as provided in Subsection (6)(e)(ii), if the court denies the petition, the
- 61 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
2069
offender may not submit another petition for three years after the day on which the
2070
court denied the petition.
2071
(ii) If the offender is an offender subject to a lifetime registration requirement and
2072
eligible for a 20-year petition for removal from the registry as described in Section
2073
53-29-206 and files a petition for removal that is denied by the court, the offender
2074
may not submit another petition for eight years after the day on which the court
2075
denied the petition.
2076
(f) The court shall notify the victim and the registry office of the court's decision under
2077
this Subsection (6) within three days after the day on which the court issues the
2078
court's decision.
2079
(7)(a) An offender who intentionally or knowingly provides false or misleading
2080
information to the bureau when applying for a certificate of eligibility under this
2081
section is guilty of a class B misdemeanor and subject to prosecution under Section
2082
76-8-504.6.
2083
(b) The bureau may, even if the offender is not prosecuted for providing the false or
2084
misleading information, deny a certificate of eligibility to an offender who provides
2085
false or misleading information on an application.
2086
(8)(a)(i) The bureau shall charge application and issuance fees for a certificate of
2087
eligibility for removal from the registry under this section in accordance with the
2088
process in Section 63J-1-504.
2089
(ii) The application fee shall be paid at the time the offender submits an application to
2090
the bureau for a certificate of eligibility for removal from the registry.
2091
(iii) If the bureau determines that the issuance of a certificate of eligibility for
2092
removal from the registry is appropriate, the offender will be charged an
2093
additional fee for the issuance of the certificate.
2094
(b) Funds generated under this Subsection (8) shall be deposited into the General Fund
2095
as a dedicated credit by the department to cover the costs incurred in determining
2096
eligibility.
2097
Section 24. Section 53-29-301 is enacted to read:
2098
Part 3. Offender, Court, and Law Enforcement Responsibilities
2099
53-29-301 . Definitions.
2100
As used in this part:
2101
(1) "Business day" means a day on which state offices are open for regular business.
2102
(2) "Correctional facility" means:
- 62 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
2103
(a) a county jail;
2104
(b) a secure correctional facility as defined by Section 64-13-1; or
2105
(c) a secure care facility as defined in Section 80-1-102.
2106
(3) "Secondary residence" means real property that an offender owns or has a financial
2107
interest in, or a location where the offender stays overnight a total of 10 or more nights
2108
in a 12-month period when not staying at the offender's primary residence.
2109
Section 25. Section 53-29-302 is enacted to read:
2110
53-29-302 . Law enforcement and agency responsibilities related to the registry.
2111
(1) A law enforcement agency shall, in the manner prescribed by the department, inform
2112
the department of:
2113
(a) the receipt of a report or complaint of a registrable offense, within three business
2114
days after the day on which the law enforcement agency received the report or
2115
complaint; and
2116
(b) the arrest of an individual suspected of a registrable offense, within five business
2117
days after the day on which the law enforcement agency arrested the individual.
2118
(2) The Department of Corrections shall register an offender in the custody of the
2119
Department of Corrections with the department upon:
2120
(a) placement on probation;
2121
(b) commitment to a secure correctional facility operated by or under contract with the
2122
Department of Corrections;
2123
(c) release from confinement to parole status, termination or expiration of sentence, or
2124
escape;
2125
(d) entrance to and release from any community-based residential program operated by
2126
or under contract with the Department of Corrections; or
2127
(e) termination of probation or parole.
2128
(3) The sheriff of the county in which an offender is confined shall register an offender with
2129
the department, as required under this chapter, if the offender is not in the custody of the
2130
Department of Corrections and is confined in a correctional facility not operated by or
2131
under contract with the Department of Corrections upon:
2132
(a) commitment to the correctional facility; and
2133
(b) release from confinement.
2134
(4)(a) Except as provided in Subsection (4)(b), if an offender is sent on an assignment
2135
outside a secure facility, including being assigned for firefighting or disaster control,
2136
the official who has physical custody of the offender shall, within a reasonable time
- 63 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
2137
after the day of the offender's removal from the secure facility, notify the local law
2138
enforcement agencies where the offender is assigned.
2139
(b) Subsection (4)(a) does not apply to an offender temporarily released from a secure
2140
facility setting who is under the supervision of a correctional facility official.
2141
(5) The division shall register an offender in the custody of the division with the
2142
department, as required under this chapter, before the offender's release from custody of
2143
the division.
2144
(6) A state mental hospital shall register an offender committed to the state mental hospital
2145
with the department, as required under this chapter, upon the offender's admission and
2146
upon the offender's discharge.
2147
(7)(a) A municipal or county law enforcement agency shall register an offender who
2148
resides within the agency's jurisdiction and is not under the supervision of the
2149
Division of Adult Probation and Parole within the Department of Corrections.
2150
(b) A municipal or county law enforcement agency may conduct offender registration
2151
under this chapter, if the agency ensures that the agency's staff responsible for
2152
registration:
2153
(i) have received initial training by the department and have been certified by the
2154
department as qualified and authorized to conduct registrations and enter offender
2155
registration information into the registry database; and
2156
(ii) annually certifies with the department.
2157
(8) An agency in the state that registers with the department an offender on probation, an
2158
offender who has been released from confinement to parole status or termination, or an
2159
offender whose sentence has expired, shall inform the offender of the duty to comply
2160
with the continuing registration requirements of this chapter during the period of
2161
registration required in Section 53-29-203, including:
2162
(a) notification to the state agencies in the states where the registrant presently resides
2163
and plans to reside when moving across state lines;
2164
(b) verification of address at least every 60 days pursuant to a parole agreement for
2165
lifetime parolees; and
2166
(c) notification to the out-of-state agency where the offender is living, regardless of
2167
whether the offender is a resident of that state.
2168
Section 26. Section 53-29-303 is enacted to read:
2169
53-29-303 . Court responsibilities related to the registry.
2170
(1) The court shall, after an offender is convicted of a registrable offense, within three
- 64 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
2171
business days after the day on which the conviction is entered, forward a signed copy of
2172
the judgment and sentence to the registry office.
2173
(2) Upon modifying, withdrawing, setting aside, vacating, or otherwise altering a
2174
conviction for a registrable offense, the court shall, within three business days, forward a
2175
signed copy of the order to the registry office.
2176
(3)(a) An offender may change the offender's name in accordance with Title 42, Chapter
2177
1, Change of Name, if the name change is not contrary to the interests of the public.
2178
(b) Notwithstanding Section 42-1-2, an offender shall provide notice to the department
2179
at least 30 days before the day on which the hearing for the name change is held.
2180
(c) The court shall provide a copy of the order granting the offender's name change to
2181
the department within 10 days after the day on which the court issues the order.
2182
(d) If the court orders an offender's name to be changed, the department shall publish on
2183
the registration website the offender's former name and the offender's changed name
2184
as an alias.
2185
(4) Notwithstanding Title 63G, Chapter 2, Government Records Access and Management
2186
Act, information under Subsection (2) that is collected and released under Subsection
2187
53-29-404(3)(a) is public information, unless otherwise restricted under this chapter.
2188
(5) The department shall redact information regarding the identity or location of a victim
2189
from information provided under Subsection (2).
2190
Section 27. Section 53-29-304 is enacted to read:
2191
53-29-304 . Offender responsibilities related to the registry.
2192
(1) An offender shall:
2193
(a) if the offender is on probation or parole under the supervision of the Department of
2194
Corrections, register in person with the Division of Adult Probation and Parole; or
2195
(b) if the offender is not on probation or parole under the supervision of the Department
2196
of Corrections, register in person with the police department or sheriff's office that
2197
has jurisdiction over the area where the offender resides.
2198
(2) An offender registering under Subsection (1) shall register for the duration of the
2199
offender's applicable registration period described in Section 53-29-203:
2200
(a) each year during the month of the offender's date of birth;
2201
(b) during the month that is the sixth month after the offender's birth month; and
2202
(c) within three business days after the day on which there is a change of the offender's
2203
primary residence, any secondary residences, place of employment, vehicle
2204
information, or educational information described in Subsection (4).
- 65 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
2205
(3) An offender who enters this state from another jurisdiction is required to register with
2206
the department within 10 days after the day on which the offender enters the state,
2207
regardless of the offender's length of stay.
2208
(4)(a) When registering under Subsection (1), an offender shall provide the following
2209
information:
2210
(i) all names and aliases by which the offender is or has been known;
2211
(ii) the addresses of the offender's primary and secondary residences;
2212
(iii) a physical description, including the offender's date of birth, height, weight, eye
2213
color, and hair color;
2214
(iv) the make, model, color, year, plate number, and vehicle identification number of
2215
a vehicle or vehicles the offender owns or drives more than 12 times per year;
2216
(v) a current photograph of the offender;
2217
(vi) a set of fingerprints, if a set has not already been provided;
2218
(vii) a DNA specimen, taken in accordance with Section 53-10-404, if a set has not
2219
already been provided;
2220
(viii) telephone numbers and any other designations used by the offender for routing
2221
or self-identification in telephonic communications from fixed locations or
2222
cellular telephones;
2223
(ix) online identifiers and the addresses the offender uses for routing or
2224
self-identification in Internet communications or postings;
2225
(x) the name and Internet address of all websites on which the offender is registered
2226
using an online identifier, including all online identifiers used to access those
2227
websites;
2228
(xi) a copy of the offender's passport, if a passport has been issued to the offender;
2229
(xii) if the offender is an alien, all documents establishing the offender's immigration
2230
status;
2231
(xiii) all professional licenses that authorize the offender to engage in an occupation
2232
or carry out a trade or business, including any identifiers, such as numbers;
2233
(xiv) each educational institution in Utah at which the offender is employed or is a
2234
student, and a change of enrollment or employment status of the offender at an
2235
educational institution;
2236
(xv) the name, the telephone number, and the address of a place where the offender is
2237
employed or will be employed;
2238
(xvi) the name, the telephone number, and the address of a place where the offender
- 66 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
2239
works as a volunteer or will work as a volunteer; and
2240
(xvii) the offender's social security number.
2241
(b) The department shall redact information regarding the identity or location of a victim
2242
from information provided under Subsection (4)(a).
2243
(5) Notwithstanding Subsections (4)(a)(ix) and (x) and 53-29-404(7), an offender is not
2244
required to provide the department with:
2245
(a) the offender's online identifier and password used exclusively for the offender's
2246
employment on equipment provided by an employer and used to access the
2247
employer's private network; or
2248
(b) online identifiers for the offender's financial accounts, including a bank, retirement,
2249
or investment account.
2250
(6) Notwithstanding Title 77, Chapter 40a, Expungement of Criminal Records, an offender
2251
convicted of a registrable offense is required to register in accordance with this section
2252
unless the offender is removed from the registry under Section 53-29-207.
2253
(7) Except as provided in Subsection 53-29-404(7), in the case of an offender adjudicated in
2254
another jurisdiction as a juvenile and required to register under this chapter, the offender
2255
shall register in the time period and in the frequency consistent with the requirements of
2256
Subsection (3).
2257
(8)(a) An offender required to register on the registry shall, in the month of the
2258
offender's birth:
2259
(i) pay to the department an annual fee of $100 each year the offender is subject to
2260
the registration requirements of this chapter; and
2261
(ii) pay to the registering agency, if the registering agency is an agency other than the
2262
department, an annual fee of not more than $25, which may be assessed by that
2263
agency for providing registration.
2264
(b) Notwithstanding Subsection (8)(a), an offender who is confined in a secure facility
2265
or in a state mental hospital is not required to pay the annual fee.
2266
(c) The department shall deposit fees collected in accordance with this chapter into the
2267
General Fund as a dedicated credit, to be used by the department for maintaining the
2268
offender registry under this chapter and monitoring offender registration compliance,
2269
including the costs of:
2270
(i) data entry;
2271
(ii) processing registration packets;
2272
(iii) updating registry information; and
- 67 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
2273
(iv) reporting an offender not in compliance with registration requirements to a law
2274
enforcement agency.
2275
Section 28. Section 53-29-305 is enacted to read:
2276
53-29-305 . Failing to register or providing false or incomplete information --
2277
Penalties.
2278
(1) An offender who knowingly fails to register under this chapter or provides false or
2279
incomplete information is guilty of:
2280
(a) a third degree felony and shall be sentenced to serve a term of incarceration of not
2281
less than 30 days and also at least one year of probation if:
2282
(i) the offender is required to register for a registrable offense that is a felony or
2283
adjudicated delinquent for a registrable offense committed before May 3, 2023,
2284
that would be a felony if the juvenile were an adult; or
2285
(ii) the offender is required to register for the offender's lifetime as described in
2286
Subsection 53-29-203(1)(b); or
2287
(b) a class A misdemeanor and shall be sentenced to serve a term of incarceration of not
2288
less than 30 days and also at least one year of probation if the offender is required to
2289
register for a misdemeanor conviction that is a registrable offense or is adjudicated
2290
delinquent for a registrable offense committed before May 3, 2023, that would be a
2291
misdemeanor if the juvenile were an adult.
2292
(2)(a) The court or Board of Pardons and Parole may not release an individual who
2293
violates this chapter from serving the term required under Subsection (1).
2294
(b) This Subsection (2) supersedes any other provision of the law contrary to this chapter.
2295
(3) The offender shall register for an additional year for every year in which the offender
2296
does not comply with the registration requirements of this chapter.
2297
Section 29. Section 53-29-306, which is renumbered from Section 77-27-21.7 is renumbered
2298
and amended to read:
2299
[77-27-21.7] 53-29-306 . Sex offender restrictions.
2300
(1) As used in this section:
2301
(a) "Condominium project" means the same as that term is defined in Section 57-8-3.
2302
(b) "Minor" means an individual who is younger than 18 years old[;] .
2303
(c)(i) "Protected area" means the premises occupied by:
2304
(A) a licensed day care or preschool facility;
2305
(B) a public swimming pool or a swimming pool maintained, operated, or owned
2306
by a homeowners' association, condominium project, or apartment complex;
- 68 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
2307
(C) a public or private primary or secondary school that is not on the grounds of a
2308
correctional facility;
2309
(D) a community park that is open to the public or a park maintained, operated, or
2310
owned by a homeowners' association, condominium project, or apartment
2311
complex;
2312
(E) a public playground or a playground maintained, operated, or owned by a
2313
homeowners' association, condominium project, or apartment complex,
2314
including those areas designed to provide minors with space, recreational
2315
equipment, or other amenities intended to allow minors to engage in physical
2316
activity; and
2317
(F) except as provided in Subsection (1)(c)(ii), an area that is 1,000 feet or less
2318
from the residence of a victim of the sex offender if the sex offender is subject
2319
to a victim requested restriction.
2320
(ii) "Protected area" does not include:
2321
(A) the area described in Subsection (1)(c)(i)(F) if the victim is a member of the
2322
immediate family of the sex offender and the terms of the sex offender's
2323
agreement of probation or parole allow the sex offender to reside in the same
2324
residence as the victim;
2325
(B) a park, playground, or swimming pool located on the property of a residential
2326
home;
2327
(C) a park or swimming pool that prohibits minors at all times from using the park
2328
or swimming pool; or
2329
(D) a park or swimming pool maintained, operated, or owned by a homeowners'
2330
association, condominium project, or apartment complex established for
2331
residents 55 years old or older if no minors are present at the park or swimming
2332
pool at the time the sex offender is present at the park or swimming pool.
2333
[(d) "Sex offender" means an adult or juvenile who is required to register in accordance
2334
with Title 77, Chapter 41, Sex, Kidnap, and Child Abuse Offender Registry, due to a
2335
conviction for an offense that is committed against a person younger than 18 years
2336
old.]
2337
(2) For purposes of Subsection (1)(c)(i)(F), a sex offender who has committed a registrable
2338
offense against an individual younger than 18 years old is subject to a victim requested
2339
restriction if:
2340
(a) the sex offender is on probation or parole for an offense that requires the offender to
- 69 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
2341
register in accordance with [Title 77, Chapter 41, Sex, Kidnap, and Child Abuse
2342
Offender Registry] this chapter;
2343
(b) the victim or the victim's parent or guardian advises the [Department of Public Safety]
2344
department that the victim elects to restrict the sex offender from the area and
2345
authorizes the [Department of Public Safety] department to advise the sex offender of
2346
the area where the victim resides; and
2347
(c) the [Department of Public Safety] department notifies the sex offender in writing that
2348
the sex offender is prohibited from being in the area described in Subsection
2349
(1)(c)(i)(F) and provides a description of the location of the protected area to the sex
2350
offender.
2351
(3) A sex offender who has committed a registrable offense against an individual younger
2352
than 18 years old may not:
2353
(a) be in a protected area except:
2354
(i) when the sex offender must be in a protected area to perform the sex offender's
2355
parental responsibilities;
2356
(ii)(A) when the protected area is a public or private primary or secondary school;
2357
and
2358
(B) the school is open and being used for a public activity other than a
2359
school-related function that involves a minor; or
2360
(iii)(A) if the protected area is a licensed day care or preschool facility located
2361
within a building that is open to the public for purposes other than the
2362
operation of the day care or preschool facility; and
2363
(B) the sex offender does not enter a part of the building that is occupied by the
2364
day care or preschool facility; or
2365
(b) serve as an athletic coach, manager, or trainer for a sports team of which a minor
2366
who is younger than 18 years old is a member.
2367
(4) A sex offender who violates this section is guilty of:
2368
(a) a class A misdemeanor; or
2369
(b) if previously convicted of violating this section within the last ten years, a third
2370
degree felony.
2371
Section 30. Section 53-29-307, which is renumbered from Section 77-27-21.8 is renumbered
2372
and amended to read:
2373
[77-27-21.8] 53-29-307 . Sex offender in presence of a child -- Definitions --
2374
Penalties.
- 70 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
2375
(1) As used in this section:
2376
(a) "Accompany" means:
2377
(i) to be in the presence of an individual; and
2378
(ii) to move or travel with that individual from one location to another, whether
2379
outdoors, indoors, or in or on any type of vehicle.
2380
(b) "Child" means an individual younger than 14 years [of age] old.
2381
(2) A sex offender subject to registration in accordance with [Title 77, Chapter 41, Sex,
2382
Kidnap, and Child Abuse Offender Registry] this chapter, for [an] a registrable offense
2383
committed or attempted to be committed against a child younger than 14 years [of age]
2384
old is guilty of a class A misdemeanor if the sex offender requests, invites, or solicits a
2385
child to accompany the sex offender, under circumstances that do not constitute an
2386
attempt to violate Section 76-5-301.1, child kidnapping, unless:
2387
(a)(i) the sex offender, prior to accompanying the child:
2388
(A) verbally advises the child's parent or legal guardian that the sex offender is on
2389
the state sex offender registry and is required by state law to obtain written
2390
permission in order for the sex offender to accompany the child; and
2391
(B) requests that the child's parent or legal guardian provide written authorization
2392
for the sex offender to accompany the child, including the specific dates and
2393
locations;
2394
(ii) the child's parent or legal guardian has provided to the sex offender written
2395
authorization, including the specific dates and locations, for the sex offender to
2396
accompany the child; and
2397
(iii) the sex offender has possession of the written authorization and is accompanying
2398
the child only at the dates and locations specified in the authorization;
2399
(b) the child's parent or guardian has verbally authorized the sex offender to accompany
2400
the child either in the child's residence or on property appurtenant to the child's
2401
residence, but in no other locations; or
2402
(c) the child is the natural child of the sex offender, and the offender is not prohibited by
2403
any court order, or probation or parole provision, from contact with the child.
2404
(3)(a) A sex offender convicted of a violation of Subsection (2) is subject to registration
2405
in accordance with [Title 77, Chapter 41, Sex, Kidnap, and Child Abuse Offender
2406
Registry] this chapter, for an additional five years subsequent to the required
2407
registration [under Section 77-41-105] described in Section 53-29-203.
2408
(b) The period of additional registration imposed under Subsection (3)(a) is also in
- 71 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
2409
addition to any period of registration imposed under Subsection [77-41-107(3)]
2410
53-29-305(3) for failure to comply with registration requirements.
2411
(4) It is not a defense to a prosecution under this section that the defendant mistakenly
2412
believed the individual to be 14 years [of age] old or older at the time of the offense or
2413
was unaware of the individual's true age.
2414
(5) This section does not apply if a sex offender is acting to rescue a child who is in an
2415
emergency and life-threatening situation.
2416
Section 31. Section 53-29-401 is enacted to read:
2417
Part 4. Department Functions Related to the Registry
2418
53-29-401 . Definitions.
2419
Reserved.
2420
Section 32. Section 53-29-402 is enacted to read:
2421
53-29-402 . Department responsibilities related to the registry.
2422
(1) The department shall:
2423
(a) maintain the registration website;
2424
(b) ensure that the registration information collected regarding an offender's enrollment
2425
or employment at an educational institution is:
2426
(i)(A) promptly made available to any law enforcement agency that has
2427
jurisdiction where the institution is located if the educational institution is an
2428
institution of higher education; or
2429
(B) promptly made available to the district superintendent of the school district
2430
where the offender is employed if the educational institution is an institution of
2431
primary education; and
2432
(ii) entered into the appropriate state records or data system; and
2433
(c) make available to an offender the name of the local law enforcement agency or state
2434
agency that the offender should contact to register, the location for registering, and
2435
the requirements of registration.
2436
(2)(a) When the department receives offender registration information regarding a
2437
change of an offender's primary residence, the department shall, within five days
2438
after the day on which the department receives the information, electronically notify
2439
the law enforcement agencies that have jurisdiction over the area where:
2440
(i) the residence that the offender is leaving is located; and
2441
(ii) the residence to which the offender is moving is located.
2442
(b) The department shall provide notification under Subsection (2)(a) if the offender's
- 72 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
2443
change of address is:
2444
(i) between law enforcement agency jurisdictions; or
2445
(ii) within one law enforcement agency jurisdiction.
2446
(3) The department may make administrative rules necessary to implement this chapter,
2447
including:
2448
(a) the method for dissemination of the information; and
2449
(b) instructions to the public regarding the use of the information.
2450
Section 33. Section 53-29-403 is enacted to read:
2451
53-29-403 . Intervention in legal action by the department.
2452
(1) Subject to Subsection (2), the department may intervene in any matter, including a
2453
criminal action, where the matter purports to affect an individual's registration
2454
requirements under this chapter.
2455
(2) The department may only file a motion to intervene under Subsection (1) within 60 days
2456
after the day on which:
2457
(a) the sentencing court enters a judgment or sentence against an individual for a
2458
registrable offense, if the details of the written plea agreement, judgment, or sentence
2459
indicate that the individual's registration requirements under this chapter could be
2460
affected; or
2461
(b) a court modifies, withdraws, sets aside, vacates, or otherwise alters an individual's
2462
conviction for a registrable offense, affecting the individual's registration requirement
2463
under this chapter if the written plea agreement, judgment, or sentence entered at the
2464
time the individual was sentenced did not indicate that the individual's registration
2465
requirement could be affected.
2466
Section 34. Section 53-29-404 is enacted to read:
2467
53-29-404 . Sex, Kidnap, and Child Abuse Offender Notification and
2468
Registration website.
2469
(1) The department shall maintain a Sex, Kidnap, and Child Abuse Offender Notification
2470
and Registration website on the Internet available to the public.
2471
(2) The registration website shall be indexed by both the surname of the offender and by
2472
postal codes.
2473
(3)(a) Except as provided in Subsection (3)(b), the registration website shall include the
2474
following information:
2475
(i) all names and aliases by which the offender is or has been known, but not
2476
including any online identifiers;
- 73 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
2477
(ii) the addresses of the offender's primary, secondary, and temporary residences;
2478
(iii) a physical description, including the offender's date of birth, height, weight, eye
2479
color, and hair color;
2480
(iv) the make, model, color, year, and plate number of any vehicle or vehicles the
2481
offender owns or regularly drives;
2482
(v) a current photograph of the offender;
2483
(vi) a list of all professional licenses that authorize the offender to engage in an
2484
occupation or carry out a trade or business;
2485
(vii) each educational institution in Utah at which the offender is employed or is a
2486
student;
2487
(viii) a list of places where the offender works as a volunteer;
2488
(ix) any registrable offenses for which the offender has been convicted or
2489
adjudicated; and
2490
(x) other relevant identifying information of the offender as determined by the
2491
department.
2492
(b) The department shall redact any information the department receives under
2493
Subsection (3)(a) that, if disclosed, could reasonably identify a victim.
2494
(4)(a) The department shall enable the public to search the registration website to
2495
determine if the following search criteria are linked to an offender:
2496
(i) telephone numbers or other designations for an offender provided under
2497
Subsection 53-29-304(4)(a)(vii);
2498
(ii) online identifiers or other addresses for an offender provided under Subsection
2499
53-29-304(4)(a)(ix); and
2500
(iii) names and Internet addresses of websites on which an offender is registered
2501
using an online identifier, including the online identifier used to access the
2502
website.
2503
(b) The department shall ensure that a search performed using the criteria in Subsection
2504
(4)(a):
2505
(i) provides the individual requesting the search with only information regarding
2506
whether the criteria are linked to an offender; and
2507
(ii) does not return the name or any other identifying information about an offender.
2508
(c) The department is not required to:
2509
(i) report the results of the search under Subsection (4)(a) to a law enforcement
2510
agency; or
- 74 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
2511
(ii) based on the results of a search under Subsection (4)(a), open an investigation.
2512
(5)(a) Subject to Subsection (5)(b), the department shall place a disclaimer on the
2513
registration website informing the public that:
2514
(i) the information contained on the site is obtained from offenders and the
2515
department does not guarantee the information's accuracy or completeness;
2516
(ii) members of the public are not allowed to use the information to harass or threaten
2517
an offender or a member of an offender's family; and
2518
(iii) harassment, stalking, or threats against an offender or an offender's family are
2519
prohibited and may violate Utah criminal laws.
2520
(b) Before a user may access the registry website, the department shall require the user
2521
to indicate that the user has read the disclaimer, understands the disclaimer, and
2522
agrees to comply with the disclaimer's terms.
2523
(6)(a) If an offender was under 18 years old at the time of committing a registrable
2524
offense described in Subsection 53-29-202(1)(a), (c), or (f), and as a result is required
2525
to register on the registry, the department shall maintain, but not publish, the
2526
offender's information on the registration website.
2527
(b)(i) If, based on the information provided to the department by the sentencing court,
2528
prosecuting entity, offender, or offender's counsel, the department cannot
2529
determine whether the offender is eligible for an exemption to publication on the
2530
registration website as described in Subsection (6)(a), the department shall
2531
continue to publish the offender's information on the registration website.
2532
(ii) Information may be provided to the department at any time in order to clarify the
2533
offender's age at the time the offender committed the registrable offense.
2534
(iii) This section does not prohibit the department from seeking or receiving
2535
information from individuals or entities other than those identified in Subsection
2536
(6)(b)(i).
2537
(c) This Subsection (6):
2538
(i) applies to an offender with a registration requirement on or after May 3, 2023,
2539
regardless of when the offender was first required to register; and
2540
(ii) does not apply to an offender who is required to register for the offender's lifetime
2541
due to the offender being convicted of two or more registrable offenses or being
2542
convicted of one registrable offense and, at the time of the conviction for the
2543
registrable offense, being previously required to register as an offender for an
2544
offense committed as a juvenile as described in Subsection 53-29-203(1)(b).
- 75 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
2545
(7) In the case of an offender adjudicated in an external jurisdiction as a juvenile and
2546
required to register under this chapter the department shall maintain, but not publish, the
2547
offender's information on the registration website if the external jurisdiction where the
2548
juvenile offender was adjudicated does not publish the juvenile offender's information
2549
on a public website.
2550
(8) Any information in the department's possession not listed in Subsection (3)(a) that is not
2551
available to the public shall be shared:
2552
(a) for a purpose under this chapter; or
2553
(b) in accordance with Section 63G-2-206.
2554
Section 35. Section 53-29-405 is enacted to read:
2555
53-29-405 . Removal for offenses or convictions for which registration is no
2556
longer required.
2557
(1) The department shall automatically remove an individual who is currently on the
2558
registry if:
2559
(a) the only offense or offenses for which the individual is on the registry are listed in
2560
Subsection (2); or
2561
(b) the department receives a formal notification or order from the court or the Board of
2562
Pardons and Parole that the conviction for the registrable offense for which the
2563
individual is on the registry has been reversed, vacated, or pardoned.
2564
(2) The offenses described in Subsection (1)(a) are:
2565
(a) a class B or class C misdemeanor for enticing a minor under Section 76-4-401;
2566
(b) kidnapping under Subsection 76-5-301(2)(a) or (b);
2567
(c) child kidnapping under Section 76-5-301.1, if the offender was the natural parent of
2568
the child victim;
2569
(d) unlawful detention under Section 76-5-304;
2570
(e) a third degree felony for unlawful sexual intercourse before 1986, or a class B
2571
misdemeanor for unlawful sexual intercourse, under Section 76-5-401; or
2572
(f) sodomy, but not forcible sodomy, under Section 76-5-403.
2573
(3) The department shall notify an individual who has been removed from the registry in
2574
accordance with Subsection (1) and inform the individual in the notice that the
2575
individual is no longer required to register as an offender.
2576
(4) An individual who is currently on the registry may submit a request to the department to
2577
be removed from the registry if the individual believes that the individual qualifies for
2578
removal under Subsection (1).
- 76 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
2579
(5) The department, upon receipt of a request for removal from the registry in accordance
2580
with this section, shall:
2581
(a) check the registry for the individual's current status;
2582
(b) determine whether the individual qualifies for removal based upon this section; and
2583
(c) notify the individual in writing of the department's determination and whether the
2584
individual:
2585
(i) qualifies for removal from the registry; or
2586
(ii) does not qualify for removal.
2587
(6) If the department determines that the individual qualifies for removal from the registry,
2588
the department shall remove the offender from the registry.
2589
(7)(a) If the department determines that the individual does not qualify for removal from
2590
the registry, the department shall provide an explanation in writing for the
2591
department's determination.
2592
(b) The department's determination under Subsection (7)(a) is final and not subject to
2593
administrative review.
2594
(8) The department or an employee of the department is not civilly liable for a
2595
determination made in good faith in accordance with this section.
2596
(9)(a) The department shall provide a response to a request for removal within 30 days
2597
after the day on which the department receives the request.
2598
(b) If the response under Subsection (9)(a) cannot be provided within 30 days after the
2599
day on which the department receives the request, the department shall notify the
2600
individual that the response may be delayed up to 30 additional days.
2601
Section 36. Section 57-8-3 is amended to read:
2602
57-8-3 . Definitions.
2603
As used in this chapter:
2604
(1) "Assessment" means any charge imposed by the association, including:
2605
(a) common expenses on or against a unit owner pursuant to the provisions of the
2606
declaration, bylaws, or this chapter; and
2607
(b) an amount that an association of unit owners assesses to a unit owner under
2608
Subsection 57-8-43(9)(g).
2609
(2) "Association of unit owners" or "association" means all of the unit owners:
2610
(a) acting as a group in accordance with the declaration and bylaws; or
2611
(b) organized as a legal entity in accordance with the declaration.
2612
(3) "Building" means a building, containing units, and comprising a part of the property.
- 77 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
2613
(4) "Commercial condominium project" means a condominium project that has no
2614
residential units within the project.
2615
(5) "Common areas and facilities" unless otherwise provided in the declaration or lawful
2616
amendments to the declaration means:
2617
(a) the land included within the condominium project, whether leasehold or in fee
2618
simple;
2619
(b) the foundations, columns, girders, beams, supports, main walls, roofs, halls,
2620
corridors, lobbies, stairs, stairways, fire escapes, entrances, and exits of the building;
2621
(c) the basements, yards, gardens, parking areas, and storage spaces;
2622
(d) the premises for lodging of janitors or persons in charge of the property;
2623
(e) installations of central services such as power, light, gas, hot and cold water, heating,
2624
refrigeration, air conditioning, and incinerating;
2625
(f) the elevators, tanks, pumps, motors, fans, compressors, ducts, and in general all
2626
apparatus and installations existing for common use;
2627
(g) such community and commercial facilities as may be provided for in the declaration;
2628
and
2629
(h) all other parts of the property necessary or convenient to its existence, maintenance,
2630
and safety, or normally in common use.
2631
(6) "Common expenses" means:
2632
(a) all sums lawfully assessed against the unit owners;
2633
(b) expenses of administration, maintenance, repair, or replacement of the common areas
2634
and facilities;
2635
(c) expenses agreed upon as common expenses by the association of unit owners; and
2636
(d) expenses declared common expenses by this chapter, or by the declaration or the
2637
bylaws.
2638
(7) "Common profits," unless otherwise provided in the declaration or lawful amendments
2639
to the declaration, means the balance of all income, rents, profits, and revenues from the
2640
common areas and facilities remaining after the deduction of the common expenses.
2641
(8) "Condominium" means the ownership of a single unit in a multiunit project together
2642
with an undivided interest in common in the common areas and facilities of the property.
2643
(9) "Condominium plat" means a plat or plats of survey of land and units prepared in
2644
accordance with Section 57-8-13.
2645
(10) "Condominium project" means a real estate condominium project; a plan or project
2646
whereby two or more units, whether contained in existing or proposed apartments,
- 78 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
2647
commercial or industrial buildings or structures, or otherwise, are separately offered or
2648
proposed to be offered for sale. Condominium project also means the property when the
2649
context so requires.
2650
(11) "Condominium unit" means a unit together with the undivided interest in the common
2651
areas and facilities appertaining to that unit. Any reference in this chapter to a
2652
condominium unit includes both a physical unit together with its appurtenant undivided
2653
interest in the common areas and facilities and a time period unit together with its
2654
appurtenant undivided interest, unless the reference is specifically limited to a time
2655
period unit.
2656
(12) "Contractible condominium" means a condominium project from which one or more
2657
portions of the land within the project may be withdrawn in accordance with provisions
2658
of the declaration and of this chapter. If the withdrawal can occur only by the expiration
2659
or termination of one or more leases, then the condominium project is not a contractible
2660
condominium within the meaning of this chapter.
2661
(13) "Convertible land" means a building site which is a portion of the common areas and
2662
facilities, described by metes and bounds, within which additional units or limited
2663
common areas and facilities may be created in accordance with this chapter.
2664
(14) "Convertible space" means a portion of the structure within the condominium project,
2665
which portion may be converted into one or more units or common areas and facilities,
2666
including limited common areas and facilities in accordance with this chapter.
2667
(15) "Declarant" means all persons who execute the declaration or on whose behalf the
2668
declaration is executed. From the time of the recordation of any amendment to the
2669
declaration expanding an expandable condominium, all persons who execute that
2670
amendment or on whose behalf that amendment is executed shall also come within this
2671
definition. Any successors of the persons referred to in this subsection who come to
2672
stand in the same relation to the condominium project as their predecessors also come
2673
within this definition.
2674
(16) "Declaration" means the instrument by which the property is submitted to the
2675
provisions of this act, as it from time to time may be lawfully amended.
2676
(17) "Electrical corporation" means the same as that term is defined in Section 54-2-1.
2677
(18) "Expandable condominium" means a condominium project to which additional land or
2678
an interest in it may be added in accordance with the declaration and this chapter.
2679
(19) "Gas corporation" means the same as that term is defined in Section 54-2-1.
2680
(20) "Governing documents":
- 79 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
2681
(a) means a written instrument by which an association of unit owners may:
2682
(i) exercise powers; or
2683
(ii) manage, maintain, or otherwise affect the property under the jurisdiction of the
2684
association of unit owners; and
2685
(b) includes:
2686
(i) articles of incorporation;
2687
(ii) bylaws;
2688
(iii) a plat;
2689
(iv) a declaration of covenants, conditions, and restrictions; and
2690
(v) rules of the association of unit owners.
2691
(21) "Independent third party" means a person that:
2692
(a) is not related to the unit owner;
2693
(b) shares no pecuniary interests with the unit owner; and
2694
(c) purchases the unit in good faith and without the intent to defraud a current or future
2695
lienholder.
2696
(22) "Judicial foreclosure" means a foreclosure of a unit:
2697
(a) for the nonpayment of an assessment;
2698
(b) in the manner provided by law for the foreclosure of a mortgage on real property; and
2699
(c) as provided in this chapter.
2700
(23) "Leasehold condominium" means a condominium project in all or any portion of
2701
which each unit owner owns an estate for years in his unit, or in the land upon which
2702
that unit is situated, or both, with all those leasehold interests to expire naturally at the
2703
same time. A condominium project including leased land, or an interest in the land,
2704
upon which no units are situated or to be situated is not a leasehold condominium within
2705
the meaning of this chapter.
2706
(24) "Limited common areas and facilities" means those common areas and facilities
2707
designated in the declaration as reserved for use of a certain unit or units to the exclusion
2708
of the other units.
2709
(25) "Majority" or "majority of the unit owners," unless otherwise provided in the
2710
declaration or lawful amendments to the declaration, means the owners of more than
2711
50% in the aggregate in interest of the undivided ownership of the common areas and
2712
facilities.
2713
(26) "Management committee" means the committee as provided in the declaration charged
2714
with and having the responsibility and authority to make and to enforce all of the
- 80 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
2715
reasonable rules covering the operation and maintenance of the property.
2716
(27) "Management committee meeting" means a gathering of a management committee,
2717
whether in person or by means of electronic communication, at which the management
2718
committee can take binding action.
2719
(28)(a) "Means of electronic communication" means an electronic system that allows
2720
individuals to communicate orally in real time.
2721
(b) "Means of electronic communication" includes:
2722
(i) web conferencing;
2723
(ii) video conferencing; and
2724
(iii) telephone conferencing.
2725
(29) "Mixed-use condominium project" means a condominium project that has both
2726
residential and commercial units in the condominium project.
2727
(30) "Nonjudicial foreclosure" means the sale of a unit:
2728
(a) for the nonpayment of an assessment;
2729
(b) in the same manner as the sale of trust property under Sections 57-1-19 through
2730
57-1-34; and
2731
(c) as provided in this chapter.
2732
(31) "Par value" means a number of dollars or points assigned to each unit by the
2733
declaration. Substantially identical units shall be assigned the same par value, but units
2734
located at substantially different heights above the ground, or having substantially
2735
different views, or having substantially different amenities or other characteristics that
2736
might result in differences in market value, may be considered substantially identical
2737
within the meaning of this subsection. If par value is stated in terms of dollars, that
2738
statement may not be considered to reflect or control the sales price or fair market value
2739
of any unit, and no opinion, appraisal, or fair market transaction at a different figure may
2740
affect the par value of any unit, or any undivided interest in the common areas and
2741
facilities, voting rights in the unit owners' association, liability for common expenses, or
2742
right to common profits, assigned on the basis thereof.
2743
(32) "Period of administrative control" means the period of control described in Subsection
2744
57-8-16.5(1).
2745
(33) "Person" means an individual, corporation, partnership, association, trustee, or other
2746
legal entity.
2747
(34) "Political sign" means any sign or document that advocates:
2748
(a) the election or defeat of a candidate for public office; or
- 81 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
2749
(b) the approval or defeat of a ballot proposition.
2750
(35) "Property" means the land, whether leasehold or in fee simple, the building, if any, all
2751
improvements and structures thereon, all easements, rights, and appurtenances belonging
2752
thereto, and all articles of personal property intended for use in connection therewith.
2753
(36) "Protected area" means the same as that term is defined in Section [77-27-21.7]
2754
53-29-306.
2755
(37) "Record," "recording," "recorded," and "recorder" have the meaning stated in Chapter
2756
3, Recording of Documents.
2757
(38) "Rentals" or "rental unit" means:
2758
(a) a unit that:
2759
(i) is not owned by an entity or trust; and
2760
(ii) is occupied by an individual while the unit owner is not occupying the unit as the
2761
unit owner's primary residence; or
2762
(b) an occupied unit owned by an entity or trust, regardless of who occupies the unit.
2763
(39) "Size" means the number of cubic feet, or the number of square feet of ground or floor
2764
space, within each unit as computed by reference to the record of survey map and
2765
rounded off to a whole number. Certain spaces within the units including attic,
2766
basement, or garage space may be omitted from the calculation or be partially
2767
discounted by the use of a ratio, if the same basis of calculation is employed for all units
2768
in the condominium project and if that basis is described in the declaration.
2769
(40) "Time period unit" means an annually recurring part or parts of a year specified in the
2770
declaration as a period for which a unit is separately owned and includes a timeshare
2771
estate as defined in Section 57-19-2.
2772
(41) "Unconstructed unit" means a unit that:
2773
(a) is intended, as depicted in the condominium plat, to be fully or partially contained in
2774
a building; and
2775
(b) is not constructed.
2776
(42)(a) "Unit" means a separate part of the property intended for any type of
2777
independent use, which is created by the recording of a declaration and a
2778
condominium plat that describes the unit boundaries.
2779
(b) "Unit" includes one or more rooms or spaces located in one or more floors or a
2780
portion of a floor in a building.
2781
(c) "Unit" includes a convertible space, in accordance with Subsection 57-8-13.4(3).
2782
(43) "Unit number" means the number, letter, or combination of numbers and letters
- 82 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
2783
designating the unit in the declaration and in the record of survey map.
2784
(44) "Unit owner" means the person or persons owning a unit in fee simple and an
2785
undivided interest in the fee simple estate of the common areas and facilities in the
2786
percentage specified and established in the declaration or, in the case of a leasehold
2787
condominium project, the person or persons whose leasehold interest or interests in the
2788
condominium unit extend for the entire balance of the unexpired term or terms.
2789
(45) "Water wise landscaping" means:
2790
(a) installation of plant materials, suited to the microclimate and soil conditions, that can:
2791
(i) remain healthy with minimal irrigation once established; or
2792
(ii) be maintained without the use of overhead spray irrigation;
2793
(b) use of water for outdoor irrigation through proper and efficient irrigation design and
2794
water application; or
2795
(c) use of other landscape design features that:
2796
(i) minimize the landscape's need for supplemental water from irrigation;
2797
(ii) reduce the landscape area dedicated to lawn or turf; or
2798
(iii) encourage vegetative coverage.
2799
(46) "Water wise plant material" means a plant material suited to water wise landscaping.
2800
Section 37. Section 57-8-8.1 is amended to read:
2801
57-8-8.1 . Equal treatment by rules required -- Limits on rules.
2802
(1)(a) Except as provided in Subsection (1)(b), a rule shall treat similarly situated unit
2803
owners similarly.
2804
(b) Notwithstanding Subsection (1)(a), a rule may:
2805
(i) vary according to the level and type of service that the association of unit owners
2806
provides to unit owners;
2807
(ii) differ between residential and nonresidential uses; or
2808
(iii) for a unit that a unit owner leases for a term of less than 30 days, impose a
2809
reasonable limit on the number of individuals that may use the common areas and
2810
facilities as the rental unit tenant's guest or as the unit owner's guest.
2811
(2)(a) If a unit owner owns a rental unit and is in compliance with the association of unit
2812
owners' governing documents and any rule that the association of unit owners adopts
2813
under Subsection (5), a rule may not treat the unit owner differently because the unit
2814
owner owns a rental unit.
2815
(b) Notwithstanding Subsection (2)(a), a rule may:
2816
(i) limit or prohibit a rental unit owner from using the common areas and facilities for
- 83 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
2817
purposes other than attending an association meeting or managing the rental unit;
2818
(ii) if the rental unit owner retains the right to use the association of unit owners'
2819
common areas and facilities, even occasionally:
2820
(A) charge a rental unit owner a fee to use the common areas and facilities; and
2821
(B) for a unit that a unit owner leases for a term of less than 30 days, impose a
2822
reasonable limit on the number of individuals that may use the common areas
2823
and facilities as the rental unit tenant's guest or as the unit owner's guest; or
2824
(iii) include a provision in the association of unit owners' governing documents that:
2825
(A) requires each tenant of a rental unit to abide by the terms of the governing
2826
documents; and
2827
(B) holds the tenant and the rental unit owner jointly and severally liable for a
2828
violation of a provision of the governing documents.
2829
(3)(a) A rule may not interfere with the freedom of a unit owner to determine the
2830
composition of the unit owner's household.
2831
(b) Notwithstanding Subsection (3)(a), an association of unit owners may:
2832
(i) require that all occupants of a dwelling be members of a single housekeeping unit;
2833
or
2834
(ii) limit the total number of occupants permitted in each residential dwelling on the
2835
basis of the residential dwelling's:
2836
(A) size and facilities; and
2837
(B) fair use of the common areas and facilities.
2838
(4) Unless contrary to a declaration, a rule may require a minimum lease term.
2839
(5) Unless otherwise provided in the declaration, an association of unit owners may by rule:
2840
(a) regulate the use, maintenance, repair, replacement, and modification of common
2841
areas and facilities;
2842
(b) impose and receive any payment, fee, or charge for:
2843
(i) the use, rental, or operation of the common areas, except limited common areas
2844
and facilities; and
2845
(ii) a service provided to a unit owner;
2846
(c) impose a charge for a late payment of an assessment; or
2847
(d) provide for the indemnification of the association of unit owners' officers and
2848
management committee consistent with Title 16, Chapter 6a, Utah Revised Nonprofit
2849
Corporation Act.
2850
(6)(a) Except as provided in Subsection (6)(b), a rule may not prohibit a unit owner from
- 84 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
2851
installing a personal security camera immediately adjacent to the entryway, window,
2852
or other outside entry point of the owner's condominium unit.
2853
(b) A rule may prohibit a unit owner from installing a personal security camera in a
2854
common area not physically connected to the owner's unit.
2855
(7)(a) A rule may not abridge the right of a unit owner to display a religious or holiday
2856
sign, symbol, or decoration inside the owner's condominium unit.
2857
(b) An association may adopt a reasonable time, place, and manner restriction with
2858
respect to a display that is visible from the exterior of a unit.
2859
(8)(a) A rule may not:
2860
(i) prohibit a unit owner from displaying in a window of the owner's condominium
2861
unit:
2862
(A) a for-sale sign; or
2863
(B) a political sign;
2864
(ii) regulate the content of a political sign; or
2865
(iii) establish design criteria for a political sign.
2866
(b) Notwithstanding Subsection (8)(a), a rule may reasonably regulate the size and time,
2867
place, and manner of posting a for-sale sign or a political sign.
2868
(9) For any area for which one or more unit owners are responsible for landscape
2869
maintenance, the association of unit owners:
2870
(a) shall adopt rules supporting water wise landscaping, including:
2871
(i) low water use requirements on lawns during drought conditions;
2872
(ii) design criterion for water wise landscaping; and
2873
(iii) limiting permissible plant material to specific water wise plant material;
2874
(b) may not prohibit low water use on lawns during drought conditions; and
2875
(c) may not prohibit or restrict the conversion of a grass park strip to water-efficient
2876
landscaping.
2877
(10) A rule may restrict a sex offender from accessing a protected area that is maintained,
2878
operated, or owned by the association, subject to the exceptions described in Subsection [
2879
77-27-21.7(3)] 53-29-306(3).
2880
(11)(a) Except as provided in this Subsection (11), a rule may not prohibit a unit owner
2881
from making modifications, consistent with industry standards, for radon mitigation.
2882
(b) Subsection (11)(a) does not apply if the modifications would violate:
2883
(i) a local land use ordinance;
2884
(ii) a building code;
- 85 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
2885
(iii) a health code; or
2886
(iv) a fire code.
2887
(c) A rule governing the placement or external appearance of modifications may apply to
2888
modifications for radon mitigation unless the rule would:
2889
(i) unreasonably interfere with the modifications' functionality; or
2890
(ii) add more than 40% of the modifications' original cost to the cost of installing the
2891
modifications.
2892
(d) A rule may require that a unit owner making modifications related to radon
2893
mitigation:
2894
(i) demonstrate or provide proof of radon contamination; and
2895
(ii) provide proof that the modifications and any related construction will be
2896
performed by a licensed person.
2897
(12) A rule shall be reasonable.
2898
(13) A declaration, or an amendment to a declaration, may vary any of the requirements of
2899
Subsections (1) through (5), except Subsection (1)(b)(ii).
2900
(14) This section applies to an association of unit owners regardless of when the association
2901
of unit owners is created.
2902
Section 38. Section 57-8a-102 is amended to read:
2903
57-8a-102 . Definitions.
2904
As used in this chapter:
2905
(1)(a) "Assessment" means a charge imposed or levied:
2906
(i) by the association;
2907
(ii) on or against a lot or a lot owner; and
2908
(iii) pursuant to a governing document recorded with the county recorder.
2909
(b) "Assessment" includes:
2910
(i) a common expense; and
2911
(ii) an amount assessed against a lot owner under Subsection 57-8a-405(7).
2912
(2)(a) Except as provided in Subsection (2)(b), "association" means a corporation or
2913
other legal entity, any member of which:
2914
(i) is an owner of a residential lot located within the jurisdiction of the association, as
2915
described in the governing documents; and
2916
(ii) by virtue of membership or ownership of a residential lot is obligated to pay:
2917
(A) real property taxes;
2918
(B) insurance premiums;
- 86 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
2919
(C) maintenance costs; or
2920
(D) for improvement of real property not owned by the member.
2921
(b) "Association" or "homeowner association" does not include an association created
2922
under Chapter 8, Condominium Ownership Act.
2923
(3) "Board meeting" means a gathering of a board, whether in person or by means of
2924
electronic communication, at which the board can take binding action.
2925
(4) "Board of directors" or "board" means the entity, regardless of name, with primary
2926
authority to manage the affairs of the association.
2927
(5) "Common areas" means property that the association:
2928
(a) owns;
2929
(b) maintains;
2930
(c) repairs; or
2931
(d) administers.
2932
(6) "Common expense" means costs incurred by the association to exercise any of the
2933
powers provided for in the association's governing documents.
2934
(7) "Declarant":
2935
(a) means the person who executes a declaration and submits it for recording in the
2936
office of the recorder of the county in which the property described in the declaration
2937
is located; and
2938
(b) includes the person's successor and assign.
2939
(8) "Director" means a member of the board of directors.
2940
(9) "Electrical corporation" means the same as that term is defined in Section 54-2-1.
2941
(10) "Gas corporation" means the same as that term is defined in Section 54-2-1.
2942
(11)(a) "Governing documents" means a written instrument by which the association
2943
may:
2944
(i) exercise powers; or
2945
(ii) manage, maintain, or otherwise affect the property under the jurisdiction of the
2946
association.
2947
(b) "Governing documents" includes:
2948
(i) articles of incorporation;
2949
(ii) bylaws;
2950
(iii) a plat;
2951
(iv) a declaration of covenants, conditions, and restrictions; and
2952
(v) rules of the association.
- 87 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
2953
(12) "Independent third party" means a person that:
2954
(a) is not related to the owner of the residential lot;
2955
(b) shares no pecuniary interests with the owner of the residential lot; and
2956
(c) purchases the residential lot in good faith and without the intent to defraud a current
2957
or future lienholder.
2958
(13) "Judicial foreclosure" means a foreclosure of a lot:
2959
(a) for the nonpayment of an assessment;
2960
(b) in the manner provided by law for the foreclosure of a mortgage on real property; and
2961
(c) as provided in Part 3, Collection of Assessments.
2962
(14) "Lease" or "leasing" means regular, exclusive occupancy of a lot:
2963
(a) by a person or persons other than the owner; and
2964
(b) for which the owner receives a consideration or benefit, including a fee, service,
2965
gratuity, or emolument.
2966
(15) "Limited common areas" means common areas described in the declaration and
2967
allocated for the exclusive use of one or more lot owners.
2968
(16) "Lot" means:
2969
(a) a lot, parcel, plot, or other division of land:
2970
(i) designated for separate ownership or occupancy; and
2971
(ii)(A) shown on a recorded subdivision plat; or
2972
(B) the boundaries of which are described in a recorded governing document; or
2973
(b)(i) a unit in a condominium association if the condominium association is a part of
2974
a development; or
2975
(ii) a unit in a real estate cooperative if the real estate cooperative is part of a
2976
development.
2977
(17)(a) "Means of electronic communication" means an electronic system that allows
2978
individuals to communicate orally in real time.
2979
(b) "Means of electronic communication" includes:
2980
(i) web conferencing;
2981
(ii) video conferencing; and
2982
(iii) telephone conferencing.
2983
(18) "Mixed-use project" means a project under this chapter that has both residential and
2984
commercial lots in the project.
2985
(19) "Nonjudicial foreclosure" means the sale of a lot:
2986
(a) for the nonpayment of an assessment;
- 88 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
2987
(b) in the same manner as the sale of trust property under Sections 57-1-19 through
2988
57-1-34; and
2989
(c) as provided in Part 3, Collection of Assessments.
2990
(20) "Period of administrative control" means the period during which the person who filed
2991
the association's governing documents or the person's successor in interest retains
2992
authority to:
2993
(a) appoint or remove members of the association's board of directors; or
2994
(b) exercise power or authority assigned to the association under the association's
2995
governing documents.
2996
(21) "Political sign" means any sign or document that advocates:
2997
(a) the election or defeat of a candidate for public office; or
2998
(b) the approval or defeat of a ballot proposition.
2999
(22) "Protected area" means the same as that term is defined in Section 77-27-21.7.
3000
(23) "Rentals" or "rental lot" means:
3001
(a) a lot that:
3002
(i) is not owned by an entity or trust; and
3003
(ii) is occupied by an individual while the lot owner is not occupying the lot as the lot
3004
owner's primary residence;
3005
(b) an occupied lot owned by an entity or trust, regardless of who occupies the lot; or
3006
(c) an internal accessory dwelling unit as defined in Section 10-9a-530 or 17-27a-526.
3007
(24) "Residential lot" means a lot, the use of which is limited by law, covenant, or
3008
otherwise to primarily residential or recreational purposes.
3009
(25)(a) "Rule" means a policy, guideline, restriction, procedure, or regulation of an
3010
association that:
3011
(i) is not set forth in a contract, easement, article of incorporation, bylaw, or
3012
declaration; and
3013
(ii) governs:
3014
(A) the conduct of persons; or
3015
(B) the use, quality, type, design, or appearance of real property or personal
3016
property.
3017
(b) "Rule" does not include the internal business operating procedures of a board.
3018
(26) "Sex offender" means [the same as that term is defined in Section 77-27-21.7] an
3019
individual who is a sex offender as described in Subsection 53-29-202(2)(b) if the
3020
offense that the individual committed that resulted in the individual being a sex offender
- 89 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
3021
was committed against an individual younger than 18 years old.
3022
(27) "Solar energy system" means:
3023
(a) a system that is used to produce electric energy from sunlight; and
3024
(b) the components of the system described in Subsection (27)(a).
3025
Section 39. Section 57-8a-218 is amended to read:
3026
57-8a-218 . Equal treatment by rules required -- Limits on association rules and
3027
design criteria.
3028
(1)(a) Except as provided in Subsection (1)(b), a rule shall treat similarly situated lot
3029
owners similarly.
3030
(b) Notwithstanding Subsection (1)(a), a rule may:
3031
(i) vary according to the level and type of service that the association provides to lot
3032
owners;
3033
(ii) differ between residential and nonresidential uses; and
3034
(iii) for a lot that an owner leases for a term of less than 30 days, impose a reasonable
3035
limit on the number of individuals who may use the common areas and facilities
3036
as guests of the lot tenant or lot owner.
3037
(2)(a) If a lot owner owns a rental lot and is in compliance with the association's
3038
governing documents and any rule that the association adopts under Subsection (4), a
3039
rule may not treat the lot owner differently because the lot owner owns a rental lot.
3040
(b) Notwithstanding Subsection (2)(a), a rule may:
3041
(i) limit or prohibit a rental lot owner from using the common areas for purposes
3042
other than attending an association meeting or managing the rental lot;
3043
(ii) if the rental lot owner retains the right to use the association's common areas,
3044
even occasionally:
3045
(A) charge a rental lot owner a fee to use the common areas; or
3046
(B) for a lot that an owner leases for a term of less than 30 days, impose a
3047
reasonable limit on the number of individuals who may use the common areas
3048
and facilities as guests of the lot tenant or lot owner; or
3049
(iii) include a provision in the association's governing documents that:
3050
(A) requires each tenant of a rental lot to abide by the terms of the governing
3051
documents; and
3052
(B) holds the tenant and the rental lot owner jointly and severally liable for a
3053
violation of a provision of the governing documents.
3054
(3)(a) A rule criterion may not abridge the rights of a lot owner to display a religious or
- 90 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
3055
holiday sign, symbol, or decoration:
3056
(i) inside a dwelling on a lot; or
3057
(ii) outside a dwelling on:
3058
(A) a lot;
3059
(B) the exterior of the dwelling, unless the association has an ownership interest
3060
in, or a maintenance, repair, or replacement obligation for, the exterior; or
3061
(C) the front yard of the dwelling, unless the association has an ownership interest
3062
in, or a maintenance, repair, or replacement obligation for, the yard.
3063
(b) Notwithstanding Subsection (3)(a), the association may adopt a reasonable time,
3064
place, and manner restriction with respect to a display that is:
3065
(i) outside a dwelling on:
3066
(A) a lot;
3067
(B) the exterior of the dwelling; or
3068
(C) the front yard of the dwelling; and
3069
(ii) visible from outside the lot.
3070
(4)(a) A rule may not prohibit a lot owner from displaying a political sign:
3071
(i) inside a dwelling on a lot; or
3072
(ii) outside a dwelling on:
3073
(A) a lot;
3074
(B) the exterior of the dwelling, regardless of whether the association has an
3075
ownership interest in the exterior; or
3076
(C) the front yard of the dwelling, regardless of whether the association has an
3077
ownership interest in the yard.
3078
(b) A rule may not regulate the content of a political sign.
3079
(c) Notwithstanding Subsection (4)(a), a rule may reasonably regulate the time, place,
3080
and manner of posting a political sign.
3081
(d) An association design provision may not establish design criteria for a political sign.
3082
(5)(a) A rule may not prohibit a lot owner from displaying a for-sale sign:
3083
(i) inside a dwelling on a lot; or
3084
(ii) outside a dwelling on:
3085
(A) a lot;
3086
(B) the exterior of the dwelling, regardless of whether the association has an
3087
ownership interest in the exterior; or
3088
(C) the front yard of the dwelling, regardless of whether the association has an
- 91 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
3089
ownership interest in the yard.
3090
(b) Notwithstanding Subsection (5)(a), a rule may reasonably regulate the time, place,
3091
and manner of posting a for-sale sign.
3092
(6)(a) A rule may not interfere with the freedom of a lot owner to determine the
3093
composition of the lot owner's household.
3094
(b) Notwithstanding Subsection (6)(a), an association may:
3095
(i) require that all occupants of a dwelling be members of a single housekeeping unit;
3096
or
3097
(ii) limit the total number of occupants permitted in each residential dwelling on the
3098
basis of the residential dwelling's:
3099
(A) size and facilities; and
3100
(B) fair use of the common areas.
3101
(7)(a) A rule may not interfere with a reasonable activity of a lot owner within the
3102
confines of a dwelling or lot, including backyard landscaping or amenities, to the
3103
extent that the activity is in compliance with local laws and ordinances, including
3104
nuisance laws and ordinances.
3105
(b) Notwithstanding Subsection (7)(a), a rule may prohibit an activity within the
3106
confines of a dwelling or lot, including backyard landscaping or amenities, if the
3107
activity:
3108
(i) is not normally associated with a project restricted to residential use; or
3109
(ii)(A) creates monetary costs for the association or other lot owners;
3110
(B) creates a danger to the health or safety of occupants of other lots;
3111
(C) generates excessive noise or traffic;
3112
(D) creates unsightly conditions visible from outside the dwelling;
3113
(E) creates an unreasonable source of annoyance to persons outside the lot; or
3114
(F) if there are attached dwellings, creates the potential for smoke to enter another
3115
lot owner's dwelling, the common areas, or limited common areas.
3116
(c) If permitted by law, an association may adopt rules described in Subsection (7)(b)
3117
that affect the use of or behavior inside the dwelling.
3118
(8)(a) A rule may not, to the detriment of a lot owner and over the lot owner's written
3119
objection to the board, alter the allocation of financial burdens among the various lots.
3120
(b) Notwithstanding Subsection [(7)(b)] (8)(a), an association may:
3121
(i) change the common areas available to a lot owner;
3122
(ii) adopt generally applicable rules for the use of common areas; or
- 92 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
3123
(iii) deny use privileges to a lot owner who:
3124
(A) is delinquent in paying assessments;
3125
(B) abuses the common areas; or
3126
(C) violates the governing documents.
3127
(c) This Subsection (8) does not permit a rule that:
3128
(i) alters the method of levying assessments; or
3129
(ii) increases the amount of assessments as provided in the declaration.
3130
(9)(a) Subject to Subsection (9)(b), a rule may not:
3131
(i) prohibit the transfer of a lot; or
3132
(ii) require the consent of the association or board to transfer a lot.
3133
(b) Unless contrary to a declaration, a rule may require a minimum lease term.
3134
(10)(a) A rule may not require a lot owner to dispose of personal property that was in or
3135
on a lot before the adoption of the rule or design criteria if the personal property was
3136
in compliance with all rules and other governing documents previously in force.
3137
(b) The exemption in Subsection (10)(a):
3138
(i) applies during the period of the lot owner's ownership of the lot; and
3139
(ii) does not apply to a subsequent lot owner who takes title to the lot after adoption
3140
of the rule described in Subsection (10)(a).
3141
(11) A rule or action by the association or action by the board may not unreasonably
3142
impede a declarant's ability to satisfy existing development financing for community
3143
improvements and right to develop:
3144
(a) the project; or
3145
(b) other properties in the vicinity of the project.
3146
(12) A rule or association or board action may not interfere with:
3147
(a) the use or operation of an amenity that the association does not own or control; or
3148
(b) the exercise of a right associated with an easement.
3149
(13) A rule may not divest a lot owner of the right to proceed in accordance with a
3150
completed application for design review, or to proceed in accordance with another
3151
approval process, under the terms of the governing documents in existence at the time
3152
the completed application was submitted by the owner for review.
3153
(14) Unless otherwise provided in the declaration, an association may by rule:
3154
(a) regulate the use, maintenance, repair, replacement, and modification of common
3155
areas;
3156
(b) impose and receive any payment, fee, or charge for:
- 93 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
3157
(i) the use, rental, or operation of the common areas, except limited common areas;
3158
and
3159
(ii) a service provided to a lot owner;
3160
(c) impose a charge for a late payment of an assessment; or
3161
(d) provide for the indemnification of the association's officers and board consistent with
3162
Title 16, Chapter 6a, Utah Revised Nonprofit Corporation Act.
3163
(15) A rule may not prohibit a lot owner from installing a personal security camera
3164
immediately adjacent to the entryway, window, or other outside entry point of the
3165
owner's dwelling unit.
3166
(16)(a) For any area for which one or more lot owners are responsible for landscape
3167
maintenance of any landscaping within the lot owner's lot or the common areas, the
3168
association shall adopt rules supporting water wise landscaping as defined in Section
3169
57-8a-231 including:
3170
(i) low water use requirements on lawns during drought conditions;
3171
(ii) design criterion for water wise landscaping; and
3172
(iii) limiting permissible plant material to specific water wise plant material.
3173
(b) A rule may not:
3174
(i) prohibit or restrict the conversion of a grass park strip to water wise landscaping
3175
as defined in Section 57-8a-231; or
3176
(ii) prohibit low water use on lawns during drought conditions.
3177
(17)(a) Except as provided in Subsection (17)(b), a rule may not prohibit the owner of a
3178
residential lot from constructing an internal accessory dwelling unit, as defined in
3179
Section 10-9a-530 or 17-27a-526, within the owner's residential lot.
3180
(b) Subsection (17)(a) does not apply if the construction would violate:
3181
(i) a local land use ordinance;
3182
(ii) a building code;
3183
(iii) a health code; or
3184
(iv) a fire code.
3185
(18)(a) Except as provided in Subsection (18)(b), a rule may not prohibit the owner of a
3186
residential lot from making modifications, consistent with industry standards, for
3187
radon mitigation.
3188
(b) Subsection (18)(a) does not apply if the modifications would violate:
3189
(i) a local land use ordinance;
3190
(ii) a building code;
- 94 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
3191
(iii) a health code; or
3192
(iv) a fire code.
3193
(c) A rule governing the placement or external appearance of modifications for radon
3194
mitigation does not apply to a lot owner's modifications if the rule would:
3195
(i) unreasonably interfere with the modifications' functionality; or
3196
(ii) add more than 40% of the modifications' original cost to the cost of installing the
3197
modifications.
3198
(d) A rule may require that a lot owner making modifications related to radon mitigation:
3199
(i) demonstrate or provide proof of radon contamination; and
3200
(ii) provide proof that the modifications and any related construction will be
3201
performed by a licensed person.
3202
(19) A rule may restrict a sex offender from accessing a protected area that is maintained,
3203
operated, or owned by the association, subject to the exceptions described in Subsection [
3204
77-27-21.7(3)] 53-29-306(3).
3205
(20) A rule shall be reasonable.
3206
(21) A declaration, or an amendment to a declaration, may vary any of the requirements of
3207
Subsections (1), (2), (6), and (8) through (14), except Subsection (1)(b)(ii).
3208
(22) A rule may not be inconsistent with a provision of the association's declaration,
3209
bylaws, or articles of incorporation.
3210
(23) This section applies to an association regardless of when the association is created.
3211
Section 40. Section 63G-2-302 is amended to read:
3212
63G-2-302 . Private records.
3213
(1) The following records are private:
3214
(a) records concerning an individual's eligibility for unemployment insurance benefits,
3215
social services, welfare benefits, or the determination of benefit levels;
3216
(b) records containing data on individuals describing medical history, diagnosis,
3217
condition, treatment, evaluation, or similar medical data;
3218
(c) records of publicly funded libraries that when examined alone or with other records
3219
identify a patron;
3220
(d) records received by or generated by or for:
3221
(i) the Independent Legislative Ethics Commission, except for:
3222
(A) the commission's summary data report that is required under legislative rule;
3223
and
3224
(B) any other document that is classified as public under legislative rule; or
- 95 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
3225
(ii) a Senate or House Ethics Committee in relation to the review of ethics
3226
complaints, unless the record is classified as public under legislative rule;
3227
(e) records received by, or generated by or for, the Independent Executive Branch Ethics
3228
Commission, except as otherwise expressly provided in Title 63A, Chapter 14,
3229
Review of Executive Branch Ethics Complaints;
3230
(f) records received or generated for a Senate confirmation committee concerning
3231
character, professional competence, or physical or mental health of an individual:
3232
(i) if, prior to the meeting, the chair of the committee determines release of the
3233
records:
3234
(A) reasonably could be expected to interfere with the investigation undertaken by
3235
the committee; or
3236
(B) would create a danger of depriving a person of a right to a fair proceeding or
3237
impartial hearing; and
3238
(ii) after the meeting, if the meeting was closed to the public;
3239
(g) employment records concerning a current or former employee of, or applicant for
3240
employment with, a governmental entity that would disclose that individual's home
3241
address, home telephone number, social security number, insurance coverage, marital
3242
status, or payroll deductions;
3243
(h) records or parts of records under Section 63G-2-303 that a current or former
3244
employee identifies as private according to the requirements of that section;
3245
(i) that part of a record indicating a person's social security number or federal employer
3246
identification number if provided under Section 31A-23a-104, 31A-25-202,
3247
31A-26-202, 58-1-301, 58-55-302, 61-1-4, or 61-2f-203;
3248
(j) that part of a voter registration record identifying a voter's:
3249
(i) driver license or identification card number;
3250
(ii) social security number, or last four digits of the social security number;
3251
(iii) email address;
3252
(iv) date of birth; or
3253
(v) phone number;
3254
(k) a voter registration record that is classified as a private record by the lieutenant
3255
governor or a county clerk under Subsection 20A-2-101.1(5)(a), 20A-2-104(4)(h), or
3256
20A-2-204(4)(b);
3257
(l) a voter registration record that is withheld under Subsection 20A-2-104(7);
3258
(m) a withholding request form described in Subsections 20A-2-104(7) and (8) and any
- 96 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
3259
verification submitted in support of the form;
3260
(n) a record that:
3261
(i) contains information about an individual;
3262
(ii) is voluntarily provided by the individual; and
3263
(iii) goes into an electronic database that:
3264
(A) is designated by and administered under the authority of the Chief Information
3265
Officer; and
3266
(B) acts as a repository of information about the individual that can be
3267
electronically retrieved and used to facilitate the individual's online interaction
3268
with a state agency;
3269
(o) information provided to the Commissioner of Insurance under:
3270
(i) Subsection 31A-23a-115(3)(a);
3271
(ii) Subsection 31A-23a-302(4); or
3272
(iii) Subsection 31A-26-210(4);
3273
(p) information obtained through a criminal background check under Title 11, Chapter
3274
40, Criminal Background Checks by Political Subdivisions Operating Water Systems;
3275
(q) information provided by an offender that is:
3276
(i) required by the registration requirements of [Title 77, Chapter 41, Sex, Kidnap,
3277
and Child Abuse Offender Registry] Title 53, Chapter 29, Sex, Kidnap, and Child
3278
Abuse Offender Registry; and
3279
(ii) not required to be made available to the public under Subsection [77-41-110(4)]
3280
53-29-404(3)(a);
3281
(r) a statement and any supporting documentation filed with the attorney general in
3282
accordance with Section 34-45-107, if the federal law or action supporting the filing
3283
involves homeland security;
3284
(s) electronic toll collection customer account information received or collected under
3285
Section 72-6-118 and customer information described in Section 17B-2a-815
3286
received or collected by a public transit district, including contact and payment
3287
information and customer travel data;
3288
(t) an email address provided by a military or overseas voter under Section 20A-16-501;
3289
(u) a completed military-overseas ballot that is electronically transmitted under Title
3290
20A, Chapter 16, Uniform Military and Overseas Voters Act;
3291
(v) records received by or generated by or for the Political Subdivisions Ethics Review
3292
Commission established in Section 63A-15-201, except for:
- 97 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
3293
(i) the commission's summary data report that is required in Section 63A-15-202; and
3294
(ii) any other document that is classified as public in accordance with Title 63A,
3295
Chapter 15, Political Subdivisions Ethics Review Commission;
3296
(w) a record described in Section 53G-9-604 that verifies that a parent was notified of an
3297
incident or threat;
3298
(x) a criminal background check or credit history report conducted in accordance with
3299
Section 63A-3-201;
3300
(y) a record described in Subsection 53-5a-104(7);
3301
(z) on a record maintained by a county for the purpose of administering property taxes,
3302
an individual's:
3303
(i) email address;
3304
(ii) phone number; or
3305
(iii) personal financial information related to a person's payment method;
3306
(aa) a record submitted by a taxpayer to establish the taxpayer's eligibility for an
3307
exemption, deferral, abatement, or relief under:
3308
(i) Title 59, Chapter 2, Part 11, Exemptions;
3309
(ii) Title 59, Chapter 2, Part 12, Property Tax Relief;
3310
(iii) Title 59, Chapter 2, Part 18, Tax Deferral and Tax Abatement; or
3311
(iv) Title 59, Chapter 2, Part 19, Armed Forces Exemptions;
3312
(bb) a record provided by the State Tax Commission in response to a request under
3313
Subsection 59-1-403(4)(y)(iii);
3314
(cc) a record of the Child Welfare Legislative Oversight Panel regarding an individual
3315
child welfare case, as described in Subsection 36-33-103(3); and
3316
(dd) a record relating to drug or alcohol testing of a state employee under Section
3317
63A-17-1004;
3318
(ee) a record relating to a request by a state elected official or state employee who has
3319
been threatened to the Division of Technology Services to remove personal
3320
identifying information from the open web under Section 63A-16-109; and
3321
(ff) a record including confidential information as that term is defined in Section
3322
67-27-105.
3323
(2) The following records are private if properly classified by a governmental entity:
3324
(a) records concerning a current or former employee of, or applicant for employment
3325
with a governmental entity, including performance evaluations and personal status
3326
information such as race, religion, or disabilities, but not including records that are
- 98 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
3327
public under Subsection 63G-2-301(2)(b) or 63G-2-301(3)(o) or private under
3328
Subsection (1)(b);
3329
(b) records describing an individual's finances, except that the following are public:
3330
(i) records described in Subsection 63G-2-301(2);
3331
(ii) information provided to the governmental entity for the purpose of complying
3332
with a financial assurance requirement; or
3333
(iii) records that must be disclosed in accordance with another statute;
3334
(c) records of independent state agencies if the disclosure of those records would
3335
conflict with the fiduciary obligations of the agency;
3336
(d) other records containing data on individuals the disclosure of which constitutes a
3337
clearly unwarranted invasion of personal privacy;
3338
(e) records provided by the United States or by a government entity outside the state that
3339
are given with the requirement that the records be managed as private records, if the
3340
providing entity states in writing that the record would not be subject to public
3341
disclosure if retained by it;
3342
(f) any portion of a record in the custody of the Division of Aging and Adult Services,
3343
created in Section 26B-6-102, that may disclose, or lead to the discovery of, the
3344
identity of a person who made a report of alleged abuse, neglect, or exploitation of a
3345
vulnerable adult; and
3346
(g) audio and video recordings created by a body-worn camera, as defined in Section
3347
77-7a-103, that record sound or images inside a home or residence except for
3348
recordings that:
3349
(i) depict the commission of an alleged crime;
3350
(ii) record any encounter between a law enforcement officer and a person that results
3351
in death or bodily injury, or includes an instance when an officer fires a weapon;
3352
(iii) record any encounter that is the subject of a complaint or a legal proceeding
3353
against a law enforcement officer or law enforcement agency;
3354
(iv) contain an officer involved critical incident as defined in Subsection 76-2-408
3355
(1)(f); or
3356
(v) have been requested for reclassification as a public record by a subject or
3357
authorized agent of a subject featured in the recording.
3358
(3)(a) As used in this Subsection (3), "medical records" means medical reports, records,
3359
statements, history, diagnosis, condition, treatment, and evaluation.
3360
(b) Medical records in the possession of the University of Utah Hospital, its clinics,
- 99 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
3361
doctors, or affiliated entities are not private records or controlled records under
3362
Section 63G-2-304 when the records are sought:
3363
(i) in connection with any legal or administrative proceeding in which the patient's
3364
physical, mental, or emotional condition is an element of any claim or defense; or
3365
(ii) after a patient's death, in any legal or administrative proceeding in which any
3366
party relies upon the condition as an element of the claim or defense.
3367
(c) Medical records are subject to production in a legal or administrative proceeding
3368
according to state or federal statutes or rules of procedure and evidence as if the
3369
medical records were in the possession of a nongovernmental medical care provider.
3370
Section 41. Section 63G-7-301 is amended to read:
3371
63G-7-301 . Waivers of immunity.
3372
(1)(a) Immunity from suit of each governmental entity is waived as to any contractual
3373
obligation.
3374
(b) Actions arising out of contractual rights or obligations are not subject to the
3375
requirements of Section 63G-7-401, 63G-7-402, 63G-7-403, or 63G-7-601.
3376
(c) The Division of Water Resources is not liable for failure to deliver water from a
3377
reservoir or associated facility authorized by Title 73, Chapter 26, Bear River
3378
Development Act, if the failure to deliver the contractual amount of water is due to
3379
drought, other natural condition, or safety condition that causes a deficiency in the
3380
amount of available water.
3381
(2) Immunity from suit of each governmental entity is waived:
3382
(a) as to any action brought to recover, obtain possession of, or quiet title to real or
3383
personal property;
3384
(b) as to any action brought to foreclose mortgages or other liens on real or personal
3385
property, to determine any adverse claim on real or personal property, or to obtain an
3386
adjudication about any mortgage or other lien that the governmental entity may have
3387
or claim on real or personal property;
3388
(c) as to any action based on the negligent destruction, damage, or loss of goods,
3389
merchandise, or other property while it is in the possession of any governmental
3390
entity or employee, if the property was seized for the purpose of forfeiture under any
3391
provision of state law;
3392 (d) subject to Section 63G-7-302, as to any action brought under the authority of Utah
3393
Constitution, Article I, Section 22, for the recovery of compensation from the governmental
3394
entity when the governmental entity has taken or damaged private property for public uses
- 100 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
3395
without just compensation;
3396
(e) as to any claim for attorney fees or costs under Section 63G-2-209, 63G-2-405, or
3397
63G-2-802;
3398
(f) for actual damages under Title 67, Chapter 21, Utah Protection of Public Employees
3399
Act;
3400
(g) as to any action brought to obtain relief from a land use regulation that imposes a
3401
substantial burden on the free exercise of religion under Title 63L, Chapter 5, Utah
3402
Religious Land Use Act;
3403
(h) except as provided in Subsection 63G-7-201(3), as to any injury caused by:
3404
(i) a defective, unsafe, or dangerous condition of any highway, road, street, alley,
3405
crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on
3406
them; or
3407
(ii) any defective or dangerous condition of a public building, structure, dam,
3408
reservoir, or other public improvement;
3409
(i) subject to Subsections 63G-7-101(4) and 63G-7-201(4), as to any injury proximately
3410
caused by a negligent act or omission of an employee committed within the scope of
3411
employment;
3412
(j) notwithstanding Subsection 63G-7-101(4), as to a claim for an injury resulting from a
3413
sexual battery, as provided in Section 76-9-702.1, committed:
3414
(i) against a student of a public elementary or secondary school, including a charter
3415
school; and
3416
(ii) by an employee of a public elementary or secondary school or charter school who:
3417
(A) at the time of the sexual battery, held a position of special trust, as defined in
3418
Section 76-5-404.1, with respect to the student;
3419
(B) is criminally charged in connection with the sexual battery; and
3420
(C) the public elementary or secondary school or charter school knew or in the
3421
exercise of reasonable care should have known, at the time of the employee's
3422
hiring, to be a sex offender, a kidnap offender, or a child abuse offender as [
3423
defined] described in Section [77-41-102] 53-29-202, required to register under [
3424
Title 77, Chapter 41, Sex, Kidnap, and Child Abuse Offender Registry] Title
3425
53, Chapter 29, Sex, Kidnap, and Child Abuse Offender Registry, whose status
3426
as a sex offender, kidnap offender, or child abuse offender would have been
3427
revealed in a background check under Section 53G-11-402;
3428
(k) as to any action brought under Section 78B-6-2303; and
- 101 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
3429
(l) as to any action brought to obtain relief under Title 53B, Chapter 27, Part 6, Student
3430
Legal Representation.
3431
(3)(a) As used in this Subsection (3):
3432
(i) "Code of conduct" means a code of conduct that:
3433
(A) is not less stringent than a model code of conduct, created by the State Board
3434
of Education, establishing a professional standard of care for preventing the
3435
conduct described in Subsection (3)(a)(i)(D);
3436
(B) is adopted by the applicable local education governing body;
3437
(C) regulates behavior of a school employee toward a student; and
3438
(D) includes a prohibition against any sexual conduct between an employee and a
3439
student and against the employee and student sharing any sexually explicit or
3440
lewd communication, image, or photograph.
3441
(ii) "Local education agency" means:
3442
(A) a school district;
3443
(B) a charter school; or
3444
(C) the Utah Schools for the Deaf and the Blind.
3445
(iii) "Local education governing board" means:
3446
(A) for a school district, the local school board;
3447
(B) for a charter school, the charter school governing board; or
3448
(C) for the Utah Schools for the Deaf and the Blind, the state board.
3449
(iv) "Public school" means a public elementary or secondary school.
3450
(v) "Sexual abuse" means the offense described in Subsection 76-5-404.1(2).
3451
(vi) "Sexual battery" means the offense described in Section 76-9-702.1, considering
3452
the term "child" in that section to include an individual under age 18.
3453
(b) Notwithstanding Subsection 63G-7-101(4), immunity from suit is waived as to a
3454
claim against a local education agency for an injury resulting from a sexual battery or
3455
sexual abuse committed against a student of a public school by a paid employee of
3456
the public school who is criminally charged in connection with the sexual battery or
3457
sexual abuse, unless:
3458
(i) at the time of the sexual battery or sexual abuse, the public school was subject to a
3459
code of conduct; and
3460
(ii) before the sexual battery or sexual abuse occurred, the public school had:
3461
(A) provided training on the code of conduct to the employee; and
3462
(B) required the employee to sign a statement acknowledging that the employee
- 102 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
3463
has read and understands the code of conduct.
3464
(4)(a) As used in this Subsection (4):
3465
(i) "Higher education institution" means an institution included within the state
3466
system of higher education under Section 53B-1-102.
3467
(ii) "Policy governing behavior" means a policy adopted by a higher education
3468
institution or the Utah Board of Higher Education that:
3469
(A) establishes a professional standard of care for preventing the conduct
3470
described in Subsections (4)(a)(ii)(C) and (D);
3471
(B) regulates behavior of a special trust employee toward a subordinate student;
3472
(C) includes a prohibition against any sexual conduct between a special trust
3473
employee and a subordinate student; and
3474
(D) includes a prohibition against a special trust employee and subordinate student
3475
sharing any sexually explicit or lewd communication, image, or photograph.
3476
(iii) "Sexual battery" means the offense described in Section 76-9-702.1.
3477
(iv) "Special trust employee" means an employee of a higher education institution
3478
who is in a position of special trust, as defined in Section 76-5-404.1, with a
3479
higher education student.
3480
(v) "Subordinate student" means a student:
3481
(A) of a higher education institution; and
3482
(B) whose educational opportunities could be adversely impacted by a special
3483
trust employee.
3484
(b) Notwithstanding Subsection 63G-7-101(4), immunity from suit is waived as to a
3485
claim for an injury resulting from a sexual battery committed against a subordinate
3486
student by a special trust employee, unless:
3487
(i) the institution proves that the special trust employee's behavior that otherwise
3488
would constitute a sexual battery was:
3489
(A) with a subordinate student who was at least 18 years old at the time of the
3490
behavior; and
3491
(B) with the student's consent; or
3492
(ii)(A) at the time of the sexual battery, the higher education institution was
3493
subject to a policy governing behavior; and
3494
(B) before the sexual battery occurred, the higher education institution had taken
3495
steps to implement and enforce the policy governing behavior.
3496
Section 42. Section 76-1-201 is amended to read:
- 103 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
3497
76-1-201 . Jurisdiction of offenses.
3498
(1) A person is subject to prosecution in this state for an offense which the person commits,
3499
while either within or outside the state, by the person's own conduct or that of another
3500
for which the person is legally accountable, if:
3501
(a) the offense is committed either wholly or partly within the state;
3502
(b) the conduct outside the state constitutes an attempt to commit an offense within the
3503
state;
3504
(c) the conduct outside the state constitutes a conspiracy to commit an offense within the
3505
state and an act in furtherance of the conspiracy occurs in the state; or
3506
(d) the conduct within the state constitutes an attempt, solicitation, or conspiracy to
3507
commit in another jurisdiction an offense under the laws of both this state and the
3508
other jurisdiction.
3509
(2) An offense is committed partly within this state if either the conduct which is any
3510
element of the offense, or the result which is an element, occurs within this state.
3511
(3) In homicide offenses, the "result" is either the physical contact which causes death or
3512
the death itself.
3513
(a) If the body of a homicide victim is found within the state, the death shall be
3514
presumed to have occurred within the state.
3515
(b) If jurisdiction is based on this presumption, this state retains jurisdiction unless the
3516
defendant proves by clear and convincing evidence that:
3517
(i) the result of the homicide did not occur in this state; and
3518
(ii) the defendant did not engage in any conduct in this state which is any element of
3519
the offense.
3520
(4)[(a)] An offense which is based on an omission to perform a duty imposed by the law
3521
of this state is committed within the state regardless of the location of the offender at
3522
the time of the omission.
3523
[(b) For the purpose of establishing venue for a violation of Subsection 77-41-105(3)
3524
concerning sex offender, kidnap offender, or child abuse registration, the offense is
3525
considered to be committed:]
3526
[(i) at the most recent registered primary residence of the offender, if the actual
3527
location of the offender at the time of the violation is not known; or]
3528
[(ii) at the location of the offender at the time the offender is apprehended.]
3529
(5)(a) If no jurisdictional issue is raised, the pleadings are sufficient to establish
3530
jurisdiction.
- 104 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
3531
(b) The defendant may challenge jurisdiction by filing a motion before trial stating
3532
which facts exist that deprive the state of jurisdiction.
3533
(c) The burden is upon the state to initially establish jurisdiction over the offense by a
3534
preponderance of the evidence by showing under the provisions of Subsections (1)
3535
through (4) that the offense was committed either wholly or partly within the borders
3536
of the state.
3537
(d) If after the prosecution has met its burden of proof under Subsection (5)(c) the
3538
defendant claims that the state is deprived of jurisdiction or may not exercise
3539
jurisdiction, the burden is upon the defendant to prove by a preponderance of the
3540
evidence:
3541
(i) any facts claimed; and
3542
(ii) why those facts deprive the state of jurisdiction.
3543
(6) Facts that deprive the state of jurisdiction or prohibit the state from exercising
3544
jurisdiction include the fact that the:
3545
(a) defendant is serving in a position that is entitled to diplomatic immunity from
3546
prosecution and that the defendant's country has not waived that diplomatic immunity;
3547
(b) defendant is a member of the armed forces of another country and that the crime that
3548
he is alleged to have committed is one that due to an international agreement, such as
3549
a status of forces agreement between his country and the United States, cedes the
3550
exercise of jurisdiction over him for that offense to his country;
3551
(c) defendant is an enrolled member of an Indian tribe, as defined in Section 9-9-101,
3552
and that the Indian tribe has a legal status with the United States or the state that vests
3553
jurisdiction in either tribal or federal courts for certain offenses committed within the
3554
exterior boundaries of a tribal reservation, and that the facts establish that the crime is
3555
one that vests jurisdiction in tribal or federal court; or
3556
(d) offense occurred on land that is exclusively within federal jurisdiction.
3557
(7)(a) The Legislature finds that identity fraud under Chapter 6, Part 11, Identity Fraud
3558
Act, involves the use of personal identifying information which is uniquely personal
3559
to the consumer or business victim of that identity fraud and which information is
3560
considered to be in lawful possession of the consumer or business victim wherever
3561
the consumer or business victim currently resides or is found.
3562
(b) For purposes of Subsection (1)(a), an offense which is based on a violation of
3563
Chapter 6, Part 11, Identity Fraud Act, is committed partly within this state,
3564
regardless of the location of the offender at the time of the offense, if the victim of
- 105 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
3565
the identity fraud resides or is found in this state.
3566
(8) The judge shall determine jurisdiction.
3567
Section 43. Section 76-1-202 is amended to read:
3568
76-1-202 . Venue of actions.
3569
(1) Criminal actions shall be tried in the county, district, or precinct where the offense is
3570
alleged to have been committed. In determining the proper place of trial, the following
3571
provisions shall apply:
3572
(a) If the commission of an offense commenced outside the state is consummated within
3573
this state, the offender shall be tried in the county where the offense is consummated.
3574
(b) When conduct constituting elements of an offense or results that constitute elements,
3575
whether the conduct or result constituting elements is in itself unlawful, shall occur in
3576
two or more counties, trial of the offense may be held in any of the counties
3577
concerned.
3578
(c) If a person committing an offense upon the person of another is located in one county
3579
and his victim is located in another county at the time of the commission of the
3580
offense, trial may be held in either county.
3581
(d) If a cause of death is inflicted in one county and death ensues in another county, the
3582
offender may be tried in either county.
3583
(e) A person who commits an inchoate offense may be tried in any county in which any
3584
act that is an element of the offense, including the agreement in conspiracy, is
3585
committed.
3586
(f) Where a person in one county solicits, aids, abets, agrees, or attempts to aid another
3587
in the planning or commission of an offense in another county, he may be tried for
3588
the offense in either county.
3589
(g) When an offense is committed within this state and it cannot be readily determined
3590
in which county or district the offense occurred, the following provisions shall be
3591
applicable:
3592
(i) When an offense is committed upon any railroad car, vehicle, watercraft, or
3593
aircraft passing within this state, the offender may be tried in any county through
3594
which such railroad car, vehicle, watercraft, or aircraft has passed.
3595
(ii) When an offense is committed on any body of water bordering on or within this
3596
state, the offender may be tried in any county adjacent to such body of water. The
3597
words "body of water" shall include but not be limited to any stream, river, lake,
3598
or reservoir, whether natural or man-made.
- 106 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
3599
(iii) A person who commits theft may be tried in any county in which he exerts
3600
control over the property affected.
3601
(iv) If an offense is committed on or near the boundary of two or more counties, trial
3602
of the offense may be held in any of such counties.
3603
(v) For any other offense, trial may be held in the county in which the defendant
3604
resides, or, if he has no fixed residence, in the county in which he is apprehended
3605
or to which he is extradited.
3606
(h) A person who commits an offense based on Chapter 6, Part 11, Identity Fraud Act,
3607
may be tried in the county:
3608
(i) where the victim's personal identifying information was obtained;
3609
(ii) where the defendant used or attempted to use the personally identifying
3610
information;
3611
(iii) where the victim of the identity fraud resides or is found; or
3612
(iv) if multiple offenses of identity fraud occur in multiple jurisdictions, in any
3613
county where the victim's identity was used or obtained, or where the victim
3614
resides or is found.
3615
(i) For the purpose of establishing venue for a violation of [Subsection 77-41-105(3)]
3616
Section 53-29-304 concerning sex offender, kidnap offender, or child abuse offender
3617
registration, the offense is considered to be committed:
3618
(i) at the most recent registered primary residence of the offender, if the actual
3619
location of the offender at the time of the violation is not known; or
3620
(ii) at the location of the offender at the time the offender is apprehended.
3621
(2) All objections of improper place of trial are waived by a defendant unless made before
3622
trial.
3623
Section 44. Section 76-3-402 is amended to read:
3624
76-3-402 . Conviction of lower degree of offense -- Procedure and limitations.
3625
(1) As used in this section:
3626
(a) "Lower degree of offense" includes an offense for which:
3627
(i) a statutory enhancement is charged in the information or indictment that would
3628
increase either the maximum or the minimum sentence; and
3629
(ii) the court removes the statutory enhancement in accordance with this section.
3630
(b) "Minor regulatory offense" means the same as that term is defined in Section
3631
77-40a-101.
3632
(c)(i) "Rehabilitation program" means a program designed to reduce criminogenic
- 107 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
3633
and recidivism risks.
3634
(ii) "Rehabilitation program" includes:
3635
(A) a domestic violence treatment program, as that term is defined in Section
3636
26B-2-101;
3637
(B) a residential, vocational, and life skills program, as that term is defined in
3638
Section 13-53-102;
3639
(C) a substance abuse treatment program, as that term is defined in Section
3640
26B-2-101;
3641
(D) a substance use disorder treatment program, as that term is defined in Section
3642
26B-2-101;
3643
(E) a youth program, as that term is defined in Section 26B-2-101;
3644
(F) a program that meets the standards established by the Department of
3645
Corrections under Section 64-13-25;
3646
(G) a drug court, a veterans court, or a mental health court certified by the Judicial
3647
Council; or
3648
(H) a program that is substantially similar to a program described in Subsections
3649
(1)(c)(ii)(A) through (G).
3650
(d) "Serious offense" means a felony or misdemeanor offense that is not a minor
3651
regulatory offense or a traffic offense.
3652
(e) "Traffic offense" means the same as that term is defined in Section 77-40a-101.
3653
(f)(i) Except as provided in Subsection (1)(f)(ii), "violent felony" means the same as
3654
that term is defined in Section 76-3-203.5.
3655
(ii) "Violent felony" does not include an offense, or any attempt, solicitation, or
3656
conspiracy to commit an offense, for:
3657
(A) the possession, use, or removal of explosive, chemical, or incendiary devices
3658
under Subsection 76-10-306(3), (5), or (6); or
3659
(B) the purchase or possession of a dangerous weapon or handgun by a restricted
3660
person under Section 76-10-503.
3661
(2) The court may enter a judgment of conviction for a lower degree of offense than
3662
established by statute and impose a sentence at the time of sentencing for the lower
3663
degree of offense if the court:
3664
(a) takes into account:
3665
(i) the nature and circumstances of the offense of which the defendant was found
3666
guilty; and
- 108 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
3667
(ii) the history and character of the defendant;
3668
(b) gives any victim present at the sentencing and the prosecuting attorney an
3669
opportunity to be heard; and
3670
(c) concludes that the degree of offense established by statute would be unduly harsh to
3671
record as a conviction on the record for the defendant.
3672
(3) Upon a motion from the prosecuting attorney or the defendant, the court may enter a
3673
judgment of conviction for a lower degree of offense than established by statute:
3674
(a) after the defendant is successfully discharged from probation or parole for the
3675
conviction; and
3676
(b) if the court finds that entering a judgment of conviction for a lower degree of offense
3677
is in the interest of justice in accordance with Subsection (7).
3678
(4) Upon a motion from the prosecuting attorney or the defendant, the court may enter a
3679
judgment of conviction for a lower degree of offense than established by statute if:
3680
(a) the defendant's probation or parole for the conviction did not result in a successful
3681
discharge but the defendant is successfully discharged from probation or parole for a
3682
subsequent conviction of an offense;
3683
(b)(i) at least five years have passed after the day on which the defendant is sentenced
3684
for the subsequent conviction; or
3685
(ii) at least three years have passed after the day on which the defendant is sentenced
3686
for the subsequent conviction and the prosecuting attorney consents to the
3687
reduction;
3688
(c) the defendant is not convicted of a serious offense during the time period described
3689
in Subsection (4)(b);
3690
(d) there are no criminal proceedings pending against the defendant;
3691
(e) the defendant is not on probation, on parole, or currently incarcerated for any other
3692
offense;
3693
(f) if the offense for which the reduction is sought is a violent felony, the prosecuting
3694
attorney consents to the reduction; and
3695
(g) the court finds that entering a judgment of conviction for a lower degree of offense is
3696
in the interest of justice in accordance with Subsection (7).
3697
(5) Upon a motion from the prosecuting attorney or the defendant, the court may enter a
3698
judgment of conviction for a lower degree of offense than established by statute if:
3699
(a) the defendant's probation or parole for the conviction did not result in a successful
3700
discharge but the defendant is successfully discharged from a rehabilitation program;
- 109 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
3701
(b) at least three years have passed after the day on which the defendant is successfully
3702
discharged from the rehabilitation program;
3703
(c) the defendant is not convicted of a serious offense during the time period described
3704
in Subsection (5)(b);
3705
(d) there are no criminal proceedings pending against the defendant;
3706
(e) the defendant is not on probation, on parole, or currently incarcerated for any other
3707
offense;
3708
(f) if the offense for which the reduction is sought is a violent felony, the prosecuting
3709
attorney consents to the reduction; and
3710
(g) the court finds that entering a judgment of conviction for a lower degree of offense is
3711
in the interest of justice in accordance with Subsection (7).
3712
(6) Upon a motion from the prosecuting attorney or the defendant, the court may enter a
3713
judgment of conviction for a lower degree of offense than established by statute if:
3714
(a) at least five years have passed after the day on which the defendant's probation or
3715
parole for the conviction did not result in a successful discharge;
3716
(b) the defendant is not convicted of a serious offense during the time period described
3717
in Subsection (6)(a);
3718
(c) there are no criminal proceedings pending against the defendant;
3719
(d) the defendant is not on probation, on parole, or currently incarcerated for any other
3720
offense;
3721
(e) if the offense for which the reduction is sought is a violent felony, the prosecuting
3722
attorney consents to the reduction; and
3723
(f) the court finds that entering a judgment of conviction for a lower degree of offense is
3724
in the interest of justice in accordance with Subsection (7).
3725
(7) In determining whether entering a judgment of a conviction for a lower degree of
3726
offense is in the interest of justice under Subsection (3), (4), (5), or (6):
3727
(a) the court shall consider:
3728
(i) the nature, circumstances, and severity of the offense for which a reduction is
3729
sought;
3730
(ii) the physical, emotional, or other harm that the defendant caused any victim of the
3731
offense for which the reduction is sought; and
3732
(iii) any input from a victim of the offense; and
3733
(b) the court may consider:
3734
(i) any special characteristics or circumstances of the defendant, including the
- 110 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
3735
defendant's criminogenic risks and needs;
3736
(ii) the defendant's criminal history;
3737
(iii) the defendant's employment and community service history;
3738
(iv) whether the defendant participated in a rehabilitative program and successfully
3739
completed the program;
3740
(v) any effect that a reduction would have on the defendant's ability to obtain or
3741
reapply for a professional license from the Department of Commerce;
3742
(vi) whether the level of the offense has been reduced by law after the defendant's
3743
conviction;
3744
(vii) any potential impact that the reduction would have on public safety; or
3745
(viii) any other circumstances that are reasonably related to the defendant or the
3746
offense for which the reduction is sought.
3747
(8)(a) A court may only enter a judgment of conviction for a lower degree of offense
3748
under Subsection (3), (4), (5), or (6) after:
3749
(i) notice is provided to the other party;
3750
(ii) reasonable efforts have been made by the prosecuting attorney to provide notice
3751
to any victims; and
3752
(iii) a hearing is held if a hearing is requested by either party.
3753
(b) A prosecuting attorney is entitled to a hearing on a motion seeking to reduce a
3754
judgment of conviction for a lower degree of offense under Subsection (3), (4), (5),
3755
or (6).
3756
(c) In a motion under Subsection (3), (4), (5), or (6) and at a requested hearing on the
3757
motion, the moving party has the burden to provide evidence sufficient to
3758
demonstrate that the requirements under Subsection (3), (4), (5), or (6) are met.
3759
(d) If a defendant files a motion under this section, the prosecuting attorney shall
3760
respond to the motion within 35 days after the day on which the motion is filed with
3761
the court.
3762
(9) A court has jurisdiction to consider and enter a judgment of conviction for a lower
3763
degree of offense under Subsection (3), (4), (5), or (6) regardless of whether the
3764
defendant is committed to jail as a condition of probation or is sentenced to prison.
3765
(10)(a) An offense may be reduced only one degree under this section, unless the
3766
prosecuting attorney specifically agrees in writing or on the court record that the
3767
offense may be reduced two degrees.
3768
(b) An offense may not be reduced under this section by more than two degrees.
- 111 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
3769
(11) This section does not preclude an individual from obtaining or being granted an
3770
expungement of the individual's record in accordance with [Title 44, Chapter 40A,
3771
Expungement of Criminal Records] Title 77, Chapter 40a, Expungement of Criminal
3772
Records.
3773
(12) The court may not enter a judgment for a conviction for a lower degree of offense
3774
under this section if:
3775
(a) the reduction is specifically precluded by law; or
3776
(b) any unpaid balance remains on court-ordered restitution for the offense for which the
3777
reduction is sought.
3778
(13) When the court enters a judgment for a lower degree of offense under this section, the
3779
actual title of the offense for which the reduction is made may not be altered.
3780
(14)(a) An individual may not obtain a reduction under this section of a conviction that
3781
requires the individual to register as a sex offender, kidnap offender, or child abuse
3782
offender under Section 53-29-202 until the registration requirements under [Title 77,
3783
Chapter 41, Sex, Kidnap, and Child Abuse Offender Registry] Title 53, Chapter 29,
3784
Sex, Kidnap, and Child Abuse Offender Registry, have expired.
3785
(b) An individual required to register as a sex offender, kidnap offender, or child abuse
3786
offender under Section 53-29-202 and required to register for the individual's lifetime [
3787
under Subsection 77-41-105(3)(c)] as described in Subsection 53-29-203(1)(b), may
3788
not be granted a reduction of the conviction for the offense or offenses that require
3789
the individual to register as a sex offender, kidnap offender, or child abuse offender.
3790
Section 45. Section 76-5-401 is amended to read:
3791
76-5-401 . Unlawful sexual activity with a minor -- Penalties -- Evidence of age
3792
raised by defendant -- Limitations.
3793
(1)(a) As used in this section, "minor" means an individual who is 14 years old or older,
3794
but younger than 16 years old, at the time the sexual activity described in Subsection
3795
(2) occurred.
3796
(b) Terms defined in Section 76-1-101.5 apply to this section.
3797
(2)(a) Under circumstances not amounting to an offense listed in Subsection (4), an actor
3798
18 years old or older commits unlawful sexual activity with a minor if the actor:
3799
(i) has sexual intercourse with the minor;
3800
(ii) engages in any sexual act with the minor involving the genitals of an individual
3801
and the mouth or anus of another individual; or
3802
(iii) causes the penetration, however slight, of the genital or anal opening of the
- 112 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
3803
minor by a foreign object, substance, instrument, or device, including a part of the
3804
human body, with the intent to cause substantial emotional or bodily pain to any
3805
individual or with the intent to arouse or gratify the sexual desire of any individual.
3806
(b) Any touching, however slight, is sufficient to constitute the relevant element of a
3807
violation of Subsection (2)(a)(ii).
3808
(3)(a) A violation of Subsection (2) is a third degree felony.
3809
(b)[(i)] Notwithstanding Subsection (3)(a) or (c), a violation of Subsection (2) is a
3810
class B misdemeanor if the defendant establishes by a preponderance of the
3811
evidence the mitigating factor that:
3812
[(A)] (i) the defendant is less than four years older than the minor at the time the
3813
sexual activity occurred; or
3814
[(B)] (ii) the defendant is 18 years old and enrolled in high school at the time the
3815
sexual activity occurred.
3816
[(ii) An offense under Subsection (3)(b)(i) is not subject to registration under
3817
Subsection 77-41-102(19)(a)(vii).]
3818
(c)[(i)] Notwithstanding Subsection (3)(a), if the defendant establishes by a
3819
preponderance of the evidence the mitigating factor that the defendant was
3820
younger than 21 years old at the time the sexual activity occurred, the offense is a
3821
class A misdemeanor.
3822
[(ii) An offense under Subsection (3)(c)(i) is not subject to registration under
3823
Subsection 77-41-102(19)(a)(vii).]
3824
(4) The offenses referred to in Subsection (2)(a) are:
3825
(a) rape, in violation of Section 76-5-402;
3826
(b) object rape, in violation of Section 76-5-402.2;
3827
(c) forcible sodomy, in violation of Section 76-5-403;
3828
(d) aggravated sexual assault, in violation of Section 76-5-405; or
3829
(e) an attempt to commit an offense listed in Subsections (4)(a) through (4)(d).
3830
Section 46. Section 76-5-401.1 is amended to read:
3831
76-5-401.1 . Sexual abuse of a minor.
3832
(1)(a) As used in this section:
3833
(i) "Indecent liberties" means:
3834
(A) the actor touching another individual's genitals, anus, buttocks, pubic area, or
3835
female breast;
3836
(B) causing any part of an individual's body to touch the actor's or another's
- 113 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
3837
genitals, pubic area, anus, buttocks, or female breast;
3838
(C) simulating or pretending to engage in sexual intercourse with another
3839
individual, including genital-genital, oral-genital, anal-genital, or oral-anal
3840
intercourse; or
3841
(D) causing an individual to simulate or pretend to engage in sexual intercourse
3842
with the actor or another, including genital-genital, oral-genital, anal-genital, or
3843
oral-anal intercourse.
3844
(ii) "Minor" means an individual who is 14 years old or older, but younger than 16
3845
years old, at the time the sexual activity described in Subsection (2) occurred.
3846
(b) Terms defined in Section 76-1-101.5 apply to this section.
3847
(2)(a) Under circumstances not amounting to an offense listed in Subsection (4), an actor
3848
commits sexual abuse of a minor if the actor:
3849
(i) is four years or more older than the minor; and
3850
(ii) with the intent to cause substantial emotional or bodily pain to any individual, or
3851
with the intent to arouse or gratify the sexual desire of any individual:
3852
(A) touches the anus, buttocks, pubic area, or any part of the genitals of the minor;
3853
(B) touches the breast of a female minor; or
3854
(C) otherwise takes indecent liberties with the minor.
3855
(b) Any touching, even if accomplished through clothing, is sufficient to constitute the
3856
relevant element of a violation of Subsection (2)(a).
3857
(3) A violation of Subsection (2)(a) is[:]
3858
[(a)] a class A misdemeanor[; and] .
3859
[(b) not subject to registration under Subsection 77-41-102(19)(a)(viii) on a first offense
3860
if the offender was younger than 21 years old at the time of the offense.]
3861
(4) The offenses referred to in Subsection (2)(a) are:
3862
(a) unlawful sexual activity with a minor, in violation of Section 76-5-401;
3863
(b) rape, in violation of Section 76-5-402;
3864
(c) object rape, in violation of Section 76-5-402.2;
3865
(d) forcible sodomy, in violation of Section 76-5-403;
3866
(e) aggravated sexual assault, in violation of Section 76-5-405; or
3867
(f) an attempt to commit an offense listed in Subsections (4)(a) through (e).
3868
Section 47. Section 76-5-401.3 is amended to read:
3869
76-5-401.3 . Unlawful adolescent sexual activity -- Penalties -- Limitations.
3870
(1)(a) As used in this section, "adolescent" means an individual who is 12 years old or
- 114 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
3871
older but younger than 18 years old.
3872
(b) Terms defined in Section 76-1-101.5 apply to this section.
3873
(2) Under circumstances not amounting to an offense listed in Subsection (5), an actor
3874
commits unlawful sexual activity if:
3875
(a)(i) the actor is 12 years old or older but younger than 18 years old;
3876
(ii) the actor engages in sexual activity with an adolescent;
3877
(iii) the actor is not the biological sibling of the adolescent; and
3878
(iv) both the actor and the adolescent mutually agree to the sexual activity; or
3879
(b)(i) the actor engages in sexual activity with an adolescent who is 13 years old;
3880
(ii) the actor is 18 years old and enrolled in high school at the time that the sexual
3881
activity occurred;
3882
(iii) the actor is not the biological sibling of the adolescent; and
3883
(iv) both the actor and the adolescent mutually agree to the sexual activity.
3884
(3)(a) A violation of Subsection (2)(a) is a:
3885
(i) third degree felony if an actor who is 17 years old engages in unlawful adolescent
3886
sexual activity with an adolescent who is 13 years old;
3887
(ii) third degree felony if an actor who is 16 years old engages in unlawful adolescent
3888
sexual activity with an adolescent who is 12 years old;
3889
(iii) class A misdemeanor if an actor who is 16 years old engages in unlawful
3890
adolescent sexual activity with an adolescent who is 13 years old;
3891
(iv) class A misdemeanor if an actor who is 14 or 15 years old engages in unlawful
3892
adolescent sexual activity with an adolescent who is 12 years old;
3893
(v) class B misdemeanor if an actor who is 17 years old engages in unlawful
3894
adolescent sexual activity with an adolescent who is 14 years old;
3895
(vi) class B misdemeanor if an actor who is 15 years old engages in unlawful
3896
adolescent sexual activity with an adolescent who is 13 years old;
3897
(vii) class C misdemeanor if an actor who is 12 or 13 years old engages in unlawful
3898
adolescent sexual activity with an adolescent who is 12 or 13 years old; and
3899
(viii) class C misdemeanor if an actor who is 14 years old engages in unlawful
3900
adolescent sexual activity with an adolescent who is 13 years old.
3901
(b) A violation of Subsection (2)(b) is a third degree felony.
3902
(4) The actor and the adolescent do not mutually agree to the sexual activity under
3903
Subsection (2) if:
3904
(a) the adolescent expresses lack of agreement to the sexual activity through words or
- 115 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
3905
conduct;
3906
(b) the actor overcomes the adolescent's will through:
3907
(i) threats to the adolescent or any other individual;
3908
(ii) force;
3909
(iii) coercion; or
3910
(iv) enticement;
3911
(c) the actor is able to overcome the adolescent through concealment or by the element
3912
of surprise;
3913
(d) the actor knows, or reasonably should know, that the adolescent has a mental disease
3914
or defect, which renders the adolescent unable to:
3915
(i) appraise the nature of the act;
3916
(ii) resist the act;
3917
(iii) understand the possible consequences to the adolescent's health or safety; or
3918
(iv) appraise the nature of the relationship between the actor and the adolescent;
3919
(e) the actor knows that the adolescent participates in the sexual activity because the
3920
adolescent erroneously believes that the actor is someone else; or
3921
(f) the actor intentionally impaired the power of the adolescent to appraise or control the
3922
adolescent's conduct by administering any substance without the adolescent's
3923
knowledge.
3924
(5) The offenses referred to in Subsection (2) are:
3925
(a) rape under Section 76-5-402;
3926
(b) object rape under Section 76-5-402.2;
3927
(c) forcible sodomy under Section 76-5-403;
3928
(d) aggravated sexual assault under Section 76-5-405;
3929
(e) incest under Section 76-7-102; or
3930
(f) an attempt to commit an offense listed in Subsections (5)(a) through (e).
3931
(6) An offense under this section is not eligible for a nonjudicial adjustment under Section
3932
80-6-303.5 or a referral to a youth court under Section 80-6-902.
3933
(7) Except for an offense that is transferred to a district court by the juvenile court in
3934
accordance with Section 80-6-504, the district court may enter any sentence or
3935
combination of sentences that would have been available in juvenile court but for the
3936
delayed reporting or delayed filing of the information in the district court.
3937
[(8) An offense under this section is not subject to registration under Subsection 77-41-102
3938
(19).]
- 116 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
3939
The following section is affected by a coordination clause at the end of this bill.
3940
Section 48. Section 76-9-702 is amended to read:
3941
76-9-702 . Lewdness.
3942
(1) A person is guilty of lewdness if the person under circumstances not amounting to rape,
3943
object rape, forcible sodomy, forcible sexual abuse, aggravated sexual assault, sexual
3944
abuse of a minor, unlawful sexual conduct with a 16- or 17-year-old, custodial sexual
3945
relations under Section 76-5-412, custodial sexual misconduct under Section 76-5-412.2,
3946
custodial sexual relations with youth receiving state services under Section 76-5-413,
3947
custodial sexual misconduct with youth receiving state services under Section 76-5-413.2,
3948
or an attempt to commit any of these offenses, performs any of the following acts in a
3949
public place or under circumstances which the person should know will likely cause
3950
affront or alarm to, on, or in the presence of another individual who is 14 years old or
3951
older:
3952
(a) an act of sexual intercourse or sodomy;
3953
(b) exposes his or her genitals, the female breast below the top of the areola, the
3954
buttocks, the anus, or the pubic area;
3955
(c) masturbates; or
3956
(d) any other act of lewdness.
3957
(2)(a) A person convicted the first or second time of a violation of Subsection (1) is
3958
guilty of a class B misdemeanor, except under Subsection (2)(b).
3959
(b) A person convicted of a violation of Subsection (1) is guilty of a third degree felony
3960
if at the time of the violation:
3961
(i) the person is a sex offender as defined in Section [77-27-21.7] 57-8a-102;
3962
(ii) the person has been previously convicted two or more times of violating
3963
Subsection (1);
3964
(iii) the person has previously been convicted of a violation of Subsection (1) and has
3965
also previously been convicted of a violation of Section 76-9-702.5;
3966
(iv) the person commits the offense of lewdness while also committing the offense of:
3967
(A) criminal trespass in a sex-designated changing room under Subsection
3968
76-6-206(2)(d);
3969
(B) lewdness involving a child under Section 76-9-702.5;
3970
(C) voyeurism under Section 76-9-702.7; or
3971
(D) loitering in a privacy space under Section 76-9-702.8; or
3972
(v) the person commits the offense of lewdness in a sex-designated privacy space, as
- 117 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
3973
defined in Section 76-9-702.8, that is not designated for individuals of the actor's
3974
sex.
3975
(c)(i) [For] As described in Subsection 53-29-202(4), for purposes of this Subsection
3976
(2)[ and Subsection 77-41-102(19)], a plea of guilty or nolo contendere to a
3977
charge under this section that is held in abeyance under Title 77, Chapter 2a, Pleas
3978
in Abeyance, is the equivalent of a conviction.
3979
(ii) This Subsection (2)(c) also applies if the charge under this Subsection (2) has
3980
been subsequently reduced or dismissed in accordance with the plea in abeyance
3981
agreement.
3982
(3)(a) As used in this Subsection (3):
3983
(i) "Common area of a privacy space" means any area of a privacy space other than:
3984
(A) a toilet stall with a closed door;
3985
(B) immediately in front of a urinal during use; or
3986
(C) a shower stall with a closed door or other closed covering.
3987
(ii) "Privacy space" means the same as that term is defined in Section 76-9-702.8.
3988
(b) The common area of a privacy space constitutes a public place or circumstance
3989
described in Subsection (1) where an act or an attempted act described in Subsection
3990
(1) constitutes lewdness.
3991
(c) Within the common area of a dressing room, fitting room, locker room, changing
3992
facility, or any other space designated for multiple individuals to dress or undress
3993
within the same space, exposing, displaying, or otherwise uncovering genitalia that
3994
does not correspond with the sex designation of the changing room constitutes an act
3995
or an attempted act described in Subsection (1) that constitutes lewdness.
3996
(4) A woman's breast feeding, including breast feeding in any location where the woman
3997
otherwise may rightfully be, does not under any circumstance constitute a lewd act,
3998
irrespective of whether or not the breast is covered during or incidental to feeding.
3999
Section 49. Section 76-9-702.1 is amended to read:
4000
76-9-702.1 . Sexual battery.
4001
(1) An actor is guilty of sexual battery if the actor, under circumstances not amounting to an
4002
offense under Subsection (2), intentionally touches, whether or not through clothing, the
4003
anus, buttocks, or any part of the genitals of another individual, or the breast of a female
4004
individual, and the actor's conduct is under circumstances the actor knows or should
4005
know will likely cause affront or alarm to the individual touched.
4006
(2) Offenses referred to in Subsection (1) are:
- 118 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
4007
(a) rape under Section 76-5-402;
4008
(b) rape of a child under Section 76-5-402.1;
4009
(c) object rape under Section 76-5-402.2;
4010
(d) object rape of a child under Section 76-5-402.3;
4011
(e) forcible sodomy under Subsection 76-5-403(2);
4012
(f) sodomy on a child under Section 76-5-403.1;
4013
(g) forcible sexual abuse under Section 76-5-404;
4014
(h) sexual abuse of a child under Section 76-5-404.1;
4015
(i) aggravated sexual abuse of a child under Section 76-5-404.3;
4016
(j) aggravated sexual assault under Section 76-5-405; and
4017
(k) an attempt to commit an offense under this Subsection (2).
4018
(3) Sexual battery is a class A misdemeanor.
4019
[(4)(a) For purposes of Subsection 77-41-102(19) only, a plea of guilty or nolo
4020
contendere to a charge under this section that is held in abeyance under Title 77,
4021
Chapter 2a, Pleas in Abeyance, is the equivalent of a conviction.]
4022
[(b) This Subsection (4) also applies if the charge under this section has been
4023
subsequently reduced or dismissed in accordance with the plea in abeyance
4024
agreement.]
4025
Section 50. Section 76-9-702.5 is amended to read:
4026
76-9-702.5 . Lewdness involving a child.
4027
(1) As used in this section:
4028
(a) "In the presence of" includes within visual contact through an electronic device.
4029
(b) "Common area of a privacy space" means the same as that term is defined in Section
4030
76-9-702.
4031
(c) "Privacy space" means the same as that term is defined in Section 76-9-702.8.
4032
(2) An actor commits lewdness involving a child if:
4033
(a) the actor, under circumstances not amounting to rape of a child, object rape of a
4034
child, sodomy upon a child, sexual abuse of a child, aggravated sexual abuse of a
4035
child, or an attempt to commit any of those offenses, intentionally or [knowinglydoes]
4036
knowingly does any of the following in the presence of a child who is under 14 years
4037
old:
4038
(i) performs an act of sexual intercourse or sodomy;
4039
(ii) exposes the actor's genitals, female breast below the top of the areola, buttocks,
4040
anus, or pubic area:
- 119 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
4041
(A) in a public place; or
4042
(B) in a private place under circumstances the actor should know will likely cause
4043
affront or alarm or with the intent to arouse or gratify the sexual desire of the
4044
actor or the child; or
4045
(iii) masturbates;
4046
(b) the actor is 18 years old or older and, under circumstances not amounting to rape of a
4047
child, object rape of a child, sodomy upon a child, sexual abuse of a child, aggravated
4048
sexual abuse of a child, or an attempt to commit any of those offenses, intentionally
4049
or knowingly does any of the following in the presence of a child who is under 14
4050
years old with the intent to cause affront or alarm to the child or with the intent to
4051
arouse or gratify the sexual desire of the actor or the child:
4052
(i) simulates masturbation;
4053
(ii) performs an act of simulated intercourse or sodomy;
4054
(iii) displays the actor's male genitals or prosthetic male genitals in a discernibly
4055
turgid state, even if completely and opaquely covered;
4056
(iv) engages in erotic touching of the actor's nude breast, regardless of the actor's sex
4057
or how the breast was developed or created; or
4058
(v) involves a child in an act that would lead a reasonable person to conclude that the
4059
child is engaging in an act of:
4060
(A) simulated intercourse or sodomy; or
4061
(B) simulated masturbation;
4062
(c) the actor, under circumstances not amounting to sexual exploitation of a child under
4063
Section 76-5b-201 or aggravated sexual exploitation of a child under Section
4064
76-5b-201.1, intentionally or knowingly causes a child under 14 years old to expose
4065
the child's genitals, anus, or breast, if female, to the actor, with the intent to arouse or
4066
gratify the sexual desire of the actor or the child; or
4067
(d) the actor performs any other act of lewdness.
4068
(3)(a) Except as provided in Subsection (3)(b), a violation of Subsection (2) is a class A
4069
misdemeanor.
4070
(b) A violation of Subsection (2) is a third degree felony if at the time of the violation,
4071
the actor:
4072
(i) is a sex offender [as defined in Section 77-27-21.7] as described in Subsection
4073
53-29-202(2)(b) and the offense that the actor committed that resulted in the actor
4074
being a sex offender was committed against an individual younger than 18 years
- 120 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
4075
old;
4076
(ii) previously has been convicted of a violation of this section;
4077
(iii) commits the violation of Subsection (2) while also committing the offense of:
4078
(A) criminal trespass in a sex-designated changing room under Subsection
4079
76-6-206(2)(d);
4080
(B) lewdness under Section 76-9-702;
4081
(C) voyeurism under Section 76-9-702.7; or
4082
(D) loitering in a privacy space under Section 76-9-702.8; or
4083
(iv) commits the violation of Subsection (2) in a sex-designated privacy space, as
4084
defined in Section 76-9-702.8, that is not designated for individuals of the actor's
4085
sex.
4086
(4)(a) The common area of a privacy space constitutes a public place or circumstance
4087
described in Subsection (2) where an act or an attempted act described in Subsection
4088
(2) constitutes lewdness involving a child.
4089
(b) Within the common area of a government entity's dressing room, fitting room, locker
4090
room, changing facility, or any other space designated for multiple individuals to
4091
dress or undress within the same space, exposing, displaying, or otherwise
4092
uncovering genitalia that does not correspond with the sex designation of the
4093
changing room constitutes an act or an attempted act described in Subsection (2) that
4094
constitutes lewdness involving a child.
4095
Section 51. Section 77-2-2.3 is amended to read:
4096
77-2-2.3 . Reducing the level of an offense.
4097
(1) Notwithstanding any other provision of law, a prosecuting attorney may:
4098
(a) present and file an information charging an individual for an offense under
4099
Subsections 76-3-103(1)(b) through (d), Subsection 76-3-103(2), or Section 76-3-104
4100
with a classification of the offense at one degree lower than the classification that is
4101
provided in statute if the prosecuting attorney believes that the sentence would be
4102
disproportionate to the offense because there are special circumstances relating to the
4103
offense; or
4104
(b) subject to the approval of the court, amend an information, as part of a plea
4105
agreement, to charge an individual for an offense under Subsections 76-3-103(1)(b)
4106
through (d), Subsection 76-3-103(2), or Section 76-3-104 with a classification of the
4107
offense at one degree lower than the classification that is provided in statute.
4108
(2) A court may:
- 121 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
4109
(a) enter a judgment of conviction for an offense filed under Subsection (1) at one
4110
degree lower than classified in statute; and
4111
(b) impose a sentence for the offense filed under Subsection (1) at one degree lower than
4112
classified in statute.
4113
(3) A conviction of an offense at one degree lower than classified in statute under
4114
Subsection (2) does not affect the requirements for registration of the offense under [
4115
Title 77, Chapter 41, Sex, Kidnap, and Child Abuse Offender Registry] Title 53, Chapter
4116
29, Sex, Kidnap, and Child Abuse Offender Registry, if the elements of the offense for
4117
which the defendant is convicted are the same as the elements of [an] a registrable
4118
offense described in Section [77-41-102] 53-29-202.
4119
(4) This section does not preclude an individual from obtaining and being granted an
4120
expungement for the individual's record in accordance with Title 77, Chapter 40a,
4121
Expungement of Criminal Records.
4122
Section 52. Section 77-11c-101 is amended to read:
4123
77-11c-101 . Definitions.
4124
As used in this chapter:
4125
(1) "Acquitted" means the same as that term is defined in Section 77-11b-101.
4126
(2) "Adjudicated" means that:
4127
(a)(i) a judgment of conviction by plea or verdict of an offense has been entered by a
4128
court; and
4129
(ii) a sentence has been imposed by the court; or
4130
(b) a judgment has been entered for an adjudication of an offense by a juvenile court
4131
under Section 80-6-701.
4132
(3) "Adjudication" means:
4133
(a) a judgment of conviction by plea or verdict of an offense; or
4134
(b) an adjudication for an offense by a juvenile court under Section 80-6-701.
4135
(4) "Agency" means the same as that term is defined in Section 77-11a-101.
4136
(5) "Appellate court" means the Utah Court of Appeals, the Utah Supreme Court, or the
4137
United States Supreme Court.
4138
(6)(a) "Biological evidence" means an item that contains blood, semen, hair, saliva,
4139
epithelial cells, latent fingerprint evidence that may contain biological material
4140
suitable for DNA testing, or other identifiable human biological material that:
4141
(i) is collected as part of an investigation or prosecution of a violent felony offense;
4142
and
- 122 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
4143
(ii) may reasonably be used to incriminate or exculpate a person for the violent
4144
felony offense.
4145
(b) "Biological evidence" includes:
4146
(i) material that is catalogued separately, including:
4147
(A) on a slide or swab; or
4148
(B) inside a test tube, if the evidentiary sample that previously was inside the test
4149
tube has been consumed by testing;
4150
(ii) material that is present on other evidence, including clothing, a ligature, bedding,
4151
a drinking cup, a cigarette, or a weapon, from which a DNA profile may be
4152
obtained;
4153
(iii) the contents of a sexual assault kit; and
4154
(iv) for a violent felony offense, material described in this Subsection (6) that is in
4155
the custody of an evidence collecting or retaining entity on May 4, 2022.
4156
(7) "Claimant" means the same as that term is defined in Section 77-11a-101.
4157
(8) "Computer" means the same as that term is defined in Section 77-11a-101.
4158
(9) "Continuous chain of custody" means:
4159
(a) for a law enforcement agency or a court, that legal standards regarding a continuous
4160
chain of custody are maintained; and
4161
(b) for an entity that is not a law enforcement agency or a court, that the entity maintains
4162
a record in accordance with legal standards required of the entity.
4163
(10) "Contraband" means the same as that term is defined in Section 77-11a-101.
4164
(11) "Controlled substance" means the same as that term is defined in Section 58-37-2.
4165
(12) "Court" means a municipal, county, or state court.
4166
(13) "DNA" means deoxyribonucleic acid.
4167
(14) "DNA profile" means a unique identifier of an individual derived from DNA.
4168
(15) "Drug paraphernalia" means the same as that term is defined in Section 58-37a-3.
4169
(16) "Evidence" means property, contraband, or an item or substance that:
4170
(a) is seized or collected as part of an investigation or prosecution of an offense; and
4171
(b) may reasonably be used to incriminate or exculpate an individual for an offense.
4172
(17)(a) "Evidence collecting or retaining entity" means an entity within the state that
4173
collects, stores, or retrieves biological evidence.
4174
(b) "Evidence collecting or retaining entity" includes:
4175
(i) a medical or forensic entity;
4176
(ii) a law enforcement agency;
- 123 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
4177
(iii) a court; and
4178
(iv) an official, employee, or agent of an entity or agency described in this Subsection
4179
(17).
4180
(v) "Evidence collecting or retaining entity" does not include a collecting facility
4181
defined in Section 53-10-902.
4182
(18) "Exhibit" means property, contraband, or an item or substance that is admitted into
4183
evidence for a court proceeding.
4184
(19) "In custody" means an individual who:
4185
(a) is incarcerated, civilly committed, on parole, or on probation; or
4186
(b) is required to register under [Title 77, Chapter 41, Sex, Kidnap, and Child Abuse
4187
Offender Registry] Title 53, Chapter 29, Sex, Kidnap, and Child Abuse Offender
4188
Registry.
4189
(20) "Law enforcement agency" means the same as that term is defined in Section
4190
77-11a-101.
4191
(21) "Medical or forensic entity" means a private or public hospital, medical facility, or
4192
other entity that secures biological evidence or conducts forensic examinations related to
4193
criminal investigations.
4194
(22) "Physical evidence" includes evidence that:
4195
(a) is related to:
4196
(i) an investigation;
4197
(ii) an arrest; or
4198
(iii) a prosecution that resulted in a judgment of conviction; and
4199
(b) is in the actual or constructive possession of a law enforcement agency or a court or
4200
an agent of a law enforcement agency or a court.
4201
(23) "Property" means the same as that term is defined in Section 77-11a-101.
4202
(24) "Prosecuting attorney" means the same as that term is defined in Section 77-11a-101.
4203
(25) "Sexual assault kit" means the same as that term is defined in Section 53-10-902.
4204
(26) "Victim" means the same as that term is defined in Section 53-10-902.
4205
(27) "Violent felony offense" means the same as the term "violent felony" is defined in
4206
Section 76-3-203.5.
4207
(28) "Wildlife" means the same as that term is defined in Section 23A-1-101.
4208
Section 53. Section 77-27-5.2 is amended to read:
4209
77-27-5.2 . Board authority to order removal from Sex, Kidnap, and Child Abuse
4210
Offender Registry.
- 124 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
4211
(1) If the board grants a pardon for a conviction described in Section 53-29-202 that is the
4212
basis for an individual's registration on the Sex, Kidnap, and Child Abuse Offender
4213
Registry, the board shall issue an order directing the Department of Public Safety to
4214
remove the individual's name and personal information relating to the pardoned
4215
conviction from the Sex, Kidnap, and Child Abuse Offender Registry.
4216
(2) An order described in Subsection (1), issued by the board, satisfies the notification
4217
requirement described in Subsection [77-41-113(1)(b)] 53-29-405(1)(b).
4218
Section 54. Section 77-38-605 is amended to read:
4219
77-38-605 . Administration -- Application.
4220
(1) The commission shall provide an application form to an applicant who seeks to
4221
participate in the program under this part.
4222
(2) The commission may not charge an applicant or program participant for an application
4223
or participation fee to apply for, or participate in, the program.
4224
(3) The application shall include:
4225
(a) the applicant's name;
4226
(b) a mailing address, a phone number, and an email address where the applicant may be
4227
contacted by the commission;
4228
(c) an indication regarding whether the assailant is employed by a state or local
4229
government entity, and if applicable, the name of the state or local government entity;
4230
(d) a statement that the applicant understands and consents to:
4231
(i) remain enrolled in the program for four years, unless the applicant's participation
4232
in the program is cancelled under Section 77-38-617;
4233
(ii) while the applicant is enrolled in the program, notify the commission when the
4234
applicant changes the applicant's actual address or legal name;
4235
(iii) develop a safety plan with a program assistant;
4236
(iv) authorize the commission to notify a state or local government entity that the
4237
applicant is a program participant;
4238
(v) submit written notice to the commission if the applicant chooses to cancel the
4239
applicant's participation in the program;
4240
(vi) register to vote in person at the office of the clerk in the county where the
4241
applicant's actual address is located; and
4242
(vii) certify that the commission is the applicant's designated agent for service of
4243
process for personal service;
4244
(e) evidence that the applicant, or a minor or an incapacitated individual residing with
- 125 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
4245
the applicant, is a victim, including:
4246
(i) a law enforcement, court, or other state, local, or federal government agency
4247
record; or
4248
(ii) a document from:
4249
(A) a domestic violence program, facility, or shelter;
4250
(B) a sexual assault program; or
4251
(C) a religious, medical, or other professional from whom the applicant, or the
4252
minor or the incapacitated individual residing with the applicant, sought
4253
assistance in dealing with alleged abuse, domestic violence, stalking, or a
4254
sexual offense;
4255
(f) a statement from the applicant that a disclosure of the applicant's actual address
4256
would endanger the applicant, or a minor or an incapacitated individual residing with
4257
the applicant;
4258
(g) a statement by the applicant that the applicant:
4259
(i) resides at a residential address that is not known by the assailant;
4260
(ii) has relocated to a different residential address in the past 90 days that is not
4261
known by the assailant; or
4262
(iii) will relocate to a different residential address in the state within 90 days that is
4263
not known by the assailant;
4264
(h) the actual address that:
4265
(i) the applicant requests that the commission not disclose; and
4266
(ii) is at risk of discovery by the assailant or potential assailant;
4267
(i) a statement by the applicant disclosing:
4268
(i) the existence of a court order or action involving the applicant, or a minor or an
4269
incapacitated individual residing with the applicant, related to a divorce
4270
proceeding, a child support order or judgment, or the allocation of custody or
4271
parent-time; and
4272
(ii) the court that issued the order or has jurisdiction over the action;
4273
(j) the name of any other individual who resides with the applicant who needs to be a
4274
program participant to ensure the safety of the applicant, or a minor or an
4275
incapacitated individual residing with the applicant;
4276
(k) a statement by the applicant that:
4277
(i) the applicant, or a minor or an incapacitated individual residing at the same
4278
address as the applicant, will benefit from participation in the program;
- 126 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
4279
(ii) if the applicant intends to vote, the applicant will register to vote at the office of
4280
the clerk in the county in which the applicant actually resides; and
4281
(iii) the applicant does not have a current obligation to register as a sex offender,
4282
kidnap offender, or child abuse offender under [Title 77, Chapter 41, Sex, Kidnap,
4283
and Child Abuse Offender Registry] Title 53, Chapter 29, Sex, Kidnap, and Child
4284
Abuse Offender Registry;
4285
(l) a statement by the applicant, under penalty of perjury, that the information contained
4286
in the application is true;
4287
(m) a statement that:
4288
(i) if the applicant intends to use the assigned address for any correspondence with
4289
the State Tax Commission, the applicant must provide the State Tax Commission
4290
with the applicant's social security number, federal employee identification
4291
number, and any other identification number related to a tax, fee, charge, or
4292
license administered by the State Tax Commission; and
4293
(ii) if the applicant intends to use the assigned address for correspondence to a state
4294
or local government entity for the purpose of titling or registering a motor vehicle
4295
or a watercraft that is owned or leased by the applicant, the applicant shall provide
4296
to the state or local government entity for each motor vehicle or watercraft:
4297
(A) the motor vehicle or hull identification number;
4298
(B) the license plate or registration number for the motor vehicle or the watercraft;
4299
and
4300
(C) the physical address where each motor vehicle or watercraft is stored; and
4301
(n) a statement that any assistance or counseling provided by a program assistant as part
4302
of the program does not constitute legal advice or legal services to the applicant.
4303
Section 55. Section 77-40a-303 is amended to read:
4304
77-40a-303 . Requirements for a certificate of eligibility to expunge records of a
4305
conviction.
4306
(1) Except as otherwise provided by this section, a petitioner is eligible to receive a
4307
certificate of eligibility from the bureau to expunge the records of a conviction if:
4308
(a) the petitioner has paid in full all fines and interest ordered by the court related to the
4309
conviction for which expungement is sought;
4310
(b) the petitioner has paid in full all restitution ordered by the court under Section
4311
77-38b-205; and
4312
(c) the following time periods have passed after the day on which the petitioner was
- 127 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
4313
convicted or released from incarceration, parole, or probation, whichever occurred
4314
last, for the conviction that the petitioner seeks to expunge:
4315
(i) 10 years for the conviction of a misdemeanor under Subsection 41-6a-501(2);
4316 (ii) 10 years for the conviction of a felony for operating a motor vehicle with any amount of a
4317
controlled substance in an individual's body and causing serious bodily injury or death, as
4318
codified before May 4, 2022, Laws of Utah 2021,
4319
Chapter 236, Section 1, Subsection 58-37-8(2)(g);
4320
(iii) seven years for the conviction of a felony;
4321
(iv) five years for the conviction of a drug possession offense that is a felony;
4322
(v) five years for the conviction of a class A misdemeanor;
4323
(vi) four years for the conviction of a class B misdemeanor; or
4324
(vii) three years for the conviction of a class C misdemeanor or infraction.
4325
(2) A petitioner is not eligible to receive a certificate of eligibility from the bureau to
4326
expunge the records of a conviction under Subsection (1) if:
4327
(a) except as provided in Subsection (3), the conviction for which expungement is
4328
sought is:
4329
(i) a capital felony;
4330
(ii) a first degree felony;
4331
(iii) a felony conviction of a violent felony as defined in Subsection 76-3-203.5
4332
(1)(c)(i);
4333
(iv) a felony conviction described in Subsection 41-6a-501(2);
4334
(v) an offense, or a combination of offenses, that would [require the individual to
4335
register as a sex offender, as defined in Section 77-41-102] result in the individual
4336
being a sex offender under Subsection 53-29-202(2)(b); or
4337
(vi) [a registerable child abuse offense as defined in Subsection 77-41-102(1);] an
4338
offense, or a combination of offenses, that would result in the individual being a
4339
child abuse offender under Subsection 53-29-202(2)(a);
4340
(b) there is a criminal proceeding for a misdemeanor or felony offense pending against
4341
the petitioner, unless the criminal proceeding is for a traffic offense;
4342
(c) there is a plea in abeyance for a misdemeanor or felony offense pending against the
4343
petitioner, unless the plea in abeyance is for a traffic offense;
4344
(d) the petitioner is currently incarcerated, on parole, or on probation, unless the
4345
petitioner is on probation or parole for an infraction, a traffic offense, or a minor
4346
regulatory offense;
- 128 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
4347
(e) the petitioner intentionally or knowingly provides false or misleading information on
4348
the application for a certificate of eligibility;
4349
(f) there is a criminal protective order or a criminal stalking injunction in effect for the
4350
case; or
4351
(g) the bureau determines that the petitioner's criminal history makes the petitioner
4352
ineligible for a certificate of eligibility under Subsection (4) or (5).
4353
(3) Subsection (2)(a) does not apply to a conviction for a qualifying sexual offense, as
4354
defined in Section 76-3-209, if, at the time of the offense, a petitioner who committed
4355
the offense was at least 14 years old but under 18 years old, unless the petitioner was
4356
convicted by a district court as an adult in accordance with [Title 80, Chapter 6, Part 5,
4357
Transfer to District Court] Title 80, Chapter 6, Part 5, Minor Tried as an Adult.
4358
(4) Subject to Subsections (6), (7), and (8), a petitioner is not eligible to receive a certificate
4359
of eligibility if, at the time the petitioner seeks the certificate of eligibility, the bureau
4360
determines that the petitioner's criminal history, including previously expunged
4361
convictions, contains any of the following:
4362
(a) two or more felony convictions other than for drug possession offenses, each of
4363
which is contained in a separate criminal episode;
4364
(b) any combination of three or more convictions other than for drug possession offenses
4365
that include two class A misdemeanor convictions, each of which is contained in a
4366
separate criminal episode;
4367
(c) any combination of four or more convictions other than for drug possession offenses
4368
that include three class B misdemeanor convictions, each of which is contained in a
4369
separate criminal episode; or
4370
(d) five or more convictions other than for drug possession offenses of any degree
4371
whether misdemeanor or felony, each of which is contained in a separate criminal
4372
episode.
4373
(5) Subject to Subsections (7) and (8), a petitioner is not eligible to receive a certificate of
4374
eligibility if, at the time the petitioner seeks the certificate of eligibility, the bureau
4375
determines that the petitioner's criminal history, including previously expunged
4376
convictions, contains any of the following:
4377
(a) three or more felony convictions for drug possession offenses, each of which is
4378
contained in a separate criminal episode; or
4379
(b) any combination of five or more convictions for drug possession offenses, each of
4380
which is contained in a separate criminal episode.
- 129 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
4381
(6) If the petitioner's criminal history contains convictions for both a drug possession
4382
offense and a non-drug possession offense arising from the same criminal episode, the
4383
bureau shall count that criminal episode as a conviction under Subsection (4) if any
4384
non-drug possession offense in that episode:
4385
(a) is a felony or class A misdemeanor; or
4386
(b) has the same or a longer waiting period under Subsection (1)(c) than any drug
4387
possession offense in that episode.
4388
(7) Except as provided in Subsection (8), if at least 10 years have passed after the day on
4389
which the petitioner was convicted or released from incarceration, parole, or probation,
4390
whichever occurred last, for all convictions:
4391
(a) each numerical eligibility limit under Subsections (4)(a) and (b) shall be increased by
4392
one; and
4393
(b) each numerical eligibility limit under Subsections (4)(c) and (d) is not applicable if
4394
the highest level of convicted offense in the criminal episode is:
4395
(i) a class B misdemeanor;
4396
(ii) a class C misdemeanor;
4397
(iii) a drug possession offense if none of the non-drug possession offenses in the
4398
criminal episode are a felony or a class A misdemeanor; or
4399
(iv) an infraction.
4400
(8) When determining whether a petitioner is eligible for a certificate of eligibility under
4401
Subsection (4), (5), or (7), the bureau may not consider a petitioner's pending case or
4402
prior conviction for:
4403
(a) an infraction;
4404
(b) a traffic offense;
4405
(c) a minor regulatory offense; or
4406
(d) a clean slate eligible case that was automatically expunged.
4407
(9) If the petitioner received a pardon before May 14, 2013, from the Utah Board of
4408
Pardons and Parole, the petitioner is entitled to an expungement order for all pardoned
4409
crimes in accordance with Section 77-27-5.1.
4410
Section 56. Section 77-40a-403 is amended to read:
4411
77-40a-403 . Release and use of expunged records -- Agencies.
4412
(1)(a) An agency with an expunged record, or any employee of an agency with an
4413
expunged record, may not knowingly or intentionally divulge any information
4414
contained in the expunged record to any person, or another agency, without a court
- 130 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
4415
order unless:
4416
(i) specifically authorized by Subsection (4) or Section 77-40a-404; or
4417
(ii) subject to Subsection (1)(b), the information in an expunged record is being
4418
shared with another agency through a records management system that both
4419
agencies use for the purpose of record management.
4420
(b) An agency with a records management system may not disclose any information in
4421
an expunged record to another agency or person, or allow another agency or person
4422
access to an expunged record, if that agency or person does not use the records
4423
management system for the purpose of record management.
4424
(2) The following entities or agencies may receive information contained in expunged
4425
records upon specific request:
4426
(a) the Board of Pardons and Parole;
4427
(b) Peace Officer Standards and Training;
4428
(c) federal authorities if required by federal law;
4429
(d) the State Board of Education;
4430
(e) the Commission on Criminal and Juvenile Justice, for purposes of investigating
4431
applicants for judicial office; and
4432
(f) a research institution or an agency engaged in research regarding the criminal justice
4433
system if:
4434
(i) the research institution or agency provides a legitimate research purpose for
4435
gathering information from the expunged records;
4436
(ii) the research institution or agency enters into a data sharing agreement with the
4437
court or agency with custody of the expunged records that protects the
4438
confidentiality of any identifying information in the expunged records;
4439
(iii) any research using expunged records does not include any individual's name or
4440
identifying information in any product of that research; and
4441
(iv) any product resulting from research using expunged records includes a disclosure
4442
that expunged records were used for research purposes.
4443
(3) Except as otherwise provided by this section or by court order, a person, an agency, or
4444
an entity authorized by this section to view expunged records may not reveal or release
4445
any information obtained from the expunged records to anyone outside the specific
4446
request, including distribution on a public website.
4447
(4) A prosecuting attorney may communicate with another prosecuting attorney, or another
4448
prosecutorial agency, regarding information in an expunged record that includes a
- 131 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
4449
conviction, or a charge dismissed as a result of a successful completion of a plea in
4450
abeyance agreement, for:
4451
(a) stalking as described in Section 76-5-106.5;
4452
(b) a domestic violence offense as defined in Section 77-36-1;
4453
(c) an offense that would [require the individual to register as a sex offender, kidnap
4454
offender, or child abuse offender as defined in Section 77-41-102] result in the
4455
individual being a child abuse offender, a sex offender, or a kidnap offender under
4456
Section 53-29-202; or
4457
(d) a weapons offense under Title 76, Chapter 10, Part 5, Weapons.
4458
(5) Except as provided in Subsection (7), a prosecuting attorney may not use an expunged
4459
record for the purpose of a sentencing enhancement or as a basis for charging an
4460
individual with an offense that requires a prior conviction.
4461
(6) The bureau may also use the information in the bureau's index as provided in Section
4462
53-5-704.
4463
(7) If an individual is charged with a felony, or an offense eligible for enhancement based
4464
on a prior conviction, after obtaining an order of expungement, the prosecuting attorney
4465
may petition the court in which the individual is charged to open the expunged records
4466
upon a showing of good cause.
4467
(8)(a) For judicial sentencing, a court may order any records expunged under this
4468
chapter or Section 77-27-5.1 to be opened and admitted into evidence.
4469
(b) The records are confidential and are available for inspection only by the court,
4470
parties, counsel for the parties, and any other person who is authorized by the court to
4471
inspect them.
4472
(c) At the end of the action or proceeding, the court shall order the records expunged
4473
again.
4474
(d) Any person authorized by this Subsection (8) to view expunged records may not
4475
reveal or release any information obtained from the expunged records to anyone
4476
outside the court.
4477
(9) Records released under this chapter are classified as protected under Section 63G-2-305
4478
and are accessible only as provided under Title 63G, Chapter 2, Part 2, Access to
4479
Records, and Subsection 53-10-108(2)(k) for records held by the bureau.
4480
Section 57. Section 78A-2-301 is amended to read:
4481
78A-2-301 . Civil fees of the courts of record -- Courts complex design.
4482
(1)(a) The fee for filing any civil complaint or petition invoking the jurisdiction of a
- 132 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
4483
court of record not governed by another subsection is $375.
4484
(b) The fee for filing a complaint or petition is:
4485
(i) $90 if the claim for damages or amount in interpleader exclusive of court costs,
4486
interest, and attorney fees is $2,000 or less;
4487
(ii) $200 if the claim for damages or amount in interpleader exclusive of court costs,
4488
interest, and attorney fees is greater than $2,000 and less than $10,000;
4489
(iii) $375 if the claim for damages or amount in interpleader is $10,000 or more;
4490
(iv) except as provided in Subsection (1)(b)(v), $325 if the petition is filed for an
4491
action described in Title 81, Chapter 4, Dissolution of Marriage;
4492
(v) $35 for a petition for temporary separation described in Section 81-4-104;
4493
(vi) $125 if the petition is for removal from the [The ]Sex, Kidnap, and Child Abuse
4494
Offender Registry under Section [77-41-112] 53-29-204, 53-29-205, or 53-29-206;
4495
and
4496
(vii) $35 if the petition is for guardianship and the prospective ward is the biological
4497
or adoptive child of the petitioner.
4498
(c) The fee for filing a small claims affidavit is:
4499
(i) $60 if the claim for damages or amount in interpleader exclusive of court costs,
4500
interest, and attorney fees is $2,000 or less;
4501
(ii) $100 if the claim for damages or amount in interpleader exclusive of court costs,
4502
interest, and attorney fees is greater than $2,000, but less than $7,500; and
4503
(iii) $185 if the claim for damages or amount in interpleader exclusive of court costs,
4504
interest, and attorney fees is $7,500 or more.
4505
(d) The fee for filing a counter claim, cross claim, complaint in intervention, third party
4506
complaint, or other claim for relief against an existing or joined party other than the
4507
original complaint or petition is:
4508
(i) $55 if the claim for relief exclusive of court costs, interest, and attorney fees is
4509
$2,000 or less;
4510
(ii) $165 if the claim for relief exclusive of court costs, interest, and attorney fees is
4511
greater than $2,000 and less than $10,000;
4512
(iii) $170 if the original petition is filed under Subsection (1)(a), the claim for relief is
4513
$10,000 or more, or the party seeks relief other than monetary damages; and
4514
(iv) $130 if the original petition is filed for an action described in Title 81, Chapter 4,
4515
Dissolution of Marriage.
4516
(e) The fee for filing a small claims counter affidavit is:
- 133 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
4517
(i) $50 if the claim for relief exclusive of court costs, interest, and attorney fees is
4518
$2,000 or less;
4519
(ii) $70 if the claim for relief exclusive of court costs, interest, and attorney fees is
4520
greater than $2,000, but less than $7,500; and
4521
(iii) $120 if the claim for relief exclusive of court costs, interest, and attorney fees is
4522
$7,500 or more.
4523
(f) The fee for depositing funds under Section 57-1-29 when not associated with an
4524
action already before the court is determined under Subsection (1)(b) based on the
4525
amount deposited.
4526
(g) The fee for filing a petition is:
4527
(i) $240 for trial de novo of an adjudication of the justice court or of the small claims
4528
department; and
4529
(ii) $80 for an appeal of a municipal administrative determination in accordance with
4530
Section 10-3-703.7.
4531
(h) The fee for filing a notice of appeal, petition for appeal of an interlocutory order, or
4532
petition for writ of certiorari is $240.
4533
(i) The fee for filing a petition for expungement is $150.
4534
(j)(i) Fifteen dollars of the fees established by Subsections (1)(a) through (i) shall be
4535
allocated to and between the Judges' Contributory Retirement Trust Fund and the
4536
Judges' Noncontributory Retirement Trust Fund, as provided in Title 49, Chapter
4537
17, Judges' Contributory Retirement Act, and Title 49, Chapter 18, Judges'
4538
Noncontributory Retirement Act.
4539
(ii) Four dollars of the fees established by Subsections (1)(a) through (i) shall be
4540
allocated by the state treasurer to be deposited into the restricted account,
4541
Children's Legal Defense Account, as provided in Section 51-9-408.
4542
(iii) Five dollars of the fees established under Subsections (1)(a) through (e), (1)(g),
4543
and (1)(s) shall be allocated to and deposited with the Dispute Resolution Account
4544
as provided in Section 78B-6-209.
4545
(iv) Thirty dollars of the fees established by Subsections (1)(a), (1)(b)(iii) and (iv),
4546
(1)(d)(iii) and (iv), (1)(g)(ii), (1)(h), and (1)(i) shall be allocated by the state
4547
treasurer to be deposited into the restricted account, Court Security Account, as
4548
provided in Section 78A-2-602.
4549
(v) Twenty dollars of the fees established by Subsections (1)(b)(i) and (ii), (1)(d)(ii)
4550
and (1)(g)(i) shall be allocated by the state treasurer to be deposited into the
- 134 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
4551
restricted account, Court Security Account, as provided in Section 78A-2-602.
4552
(k) The fee for filing a judgment, order, or decree of a court of another state or of the
4553
United States is $35.
4554
(l) The fee for filing a renewal of judgment in accordance with Section 78B-6-1801 is
4555
50% of the fee for filing an original action seeking the same relief.
4556
(m) The fee for filing probate or child custody documents from another state is $35.
4557
(n)(i) The fee for filing an abstract or transcript of judgment, order, or decree of the
4558
State Tax Commission is $30.
4559
(ii) The fee for filing an abstract or transcript of judgment of a court of law of this
4560
state or a judgment, order, or decree of an administrative agency, commission,
4561
board, council, or hearing officer of this state or of its political subdivisions other
4562
than the State Tax Commission, is $50.
4563
(o) The fee for filing a judgment by confession without action under Section 78B-5-205
4564
is $35.
4565
(p) The fee for filing an award of arbitration for confirmation, modification, or vacation
4566
under Title 78B, Chapter 11, Utah Uniform Arbitration Act, that is not part of an
4567
action before the court is $35.
4568
(q) The fee for filing a petition or counter-petition to modify a domestic relations order
4569
other than a protective order or stalking injunction is $100.
4570
(r) The fee for filing any accounting required by law is:
4571
(i) $15 for an estate valued at $50,000 or less;
4572
(ii) $30 for an estate valued at $75,000 or less but more than $50,000;
4573
(iii) $50 for an estate valued at $112,000 or less but more than $75,000;
4574
(iv) $90 for an estate valued at $168,000 or less but more than $112,000; and
4575
(v) $175 for an estate valued at more than $168,000.
4576
(s) The fee for filing a demand for a civil jury is $250.
4577
(t) The fee for filing a notice of deposition in this state concerning an action pending in
4578
another state under Utah Rules of Civil Procedure, Rule 30 is $35.
4579
(u) The fee for filing documents that require judicial approval but are not part of an
4580
action before the court is $35.
4581
(v) The fee for a petition to open a sealed record is $35.
4582
(w) The fee for a writ of replevin, attachment, execution, or garnishment is $50 in
4583
addition to any fee for a complaint or petition.
4584
(x)(i) The fee for a petition for authorization for a minor to marry required by Section
- 135 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
4585
81-2-304 is $5.
4586
(ii) The fee for a petition for emancipation of a minor provided in Title 80, Chapter 7,
4587
Emancipation, is $50.
4588
(y) The fee for a certificate issued under Section 26B-8-128 is $8.
4589
(z) The fee for a certified copy of a document is $4 per document plus 50 cents per page.
4590
(aa) The fee for an exemplified copy of a document is $6 per document plus 50 cents per
4591
page.
4592
(bb) The Judicial Council shall, by rule, establish a schedule of fees for copies of
4593
documents and forms and for the search and retrieval of records under Title 63G,
4594
Chapter 2, Government Records Access and Management Act. Fees under
4595
Subsection (1)(bb) and (cc) shall be credited to the court as a reimbursement of
4596
expenditures.
4597
(cc) The Judicial Council may, by rule, establish a reasonable fee to allow members of
4598
the public to conduct a limited amount of searches on the Xchange database without
4599
having to pay a monthly subscription fee.
4600
(dd) There is no fee for services or the filing of documents not listed in this section or
4601
otherwise provided by law.
4602
(ee) Except as provided in this section, all fees collected under this section are paid to
4603
the General Fund. Except as provided in this section, all fees shall be paid at the time
4604
the clerk accepts the pleading for filing or performs the requested service.
4605
(ff) The filing fees under this section may not be charged to the state, the state's
4606
agencies, or political subdivisions filing or defending any action. In judgments
4607
awarded in favor of the state, its agencies, or political subdivisions, except the Office
4608
of Recovery Services, the court shall order the filing fees and collection costs to be
4609
paid by the judgment debtor. The sums collected under this Subsection (1)(ff) shall
4610
be applied to the fees after credit to the judgment, order, fine, tax, lien, or other
4611
penalty and costs permitted by law.
4612
(2)(a)(i) From March 17, 1994, until June 30, 1998, the state court administrator shall
4613
transfer all revenues representing the difference between the fees in effect after
4614
May 2, 1994, and the fees in effect before February 1, 1994, as dedicated credits
4615
to the Division of Facilities Construction and Management Capital Projects Fund.
4616
(ii)(A) Except as provided in Subsection (2)(a)(ii)(B), the Division of Facilities
4617
Construction and Management shall use up to $3,750,000 of the revenue
4618
deposited into the Capital Projects Fund under this Subsection (2)(a) to design
- 136 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
4619
and take other actions necessary to initiate the development of a courts
4620
complex in Salt Lake City.
4621
(B) If the Legislature approves funding for construction of a courts complex in
4622
Salt Lake City in the 1995 Annual General Session, the Division of Facilities
4623
Construction and Management shall use the revenue deposited into the Capital
4624
Projects Fund under this Subsection (2)(a)(ii) to construct a courts complex in
4625
Salt Lake City.
4626
(C) After the courts complex is completed and all bills connected with its
4627
construction have been paid, the Division of Facilities Construction and
4628
Management shall use any money remaining in the Capital Projects Fund under
4629
this Subsection (2)(a)(ii) to fund the Vernal District Court building.
4630
(iii) The Division of Facilities Construction and Management may enter into
4631
agreements and make expenditures related to this project before the receipt of
4632
revenues provided for under this Subsection (2)(a)(iii).
4633
(iv) The Division of Facilities Construction and Management shall:
4634
(A) make those expenditures from unexpended and unencumbered building funds
4635
already appropriated to the Capital Projects Fund; and
4636
(B) reimburse the Capital Projects Fund upon receipt of the revenues provided for
4637
under this Subsection (2).
4638
(b) After June 30, 1998, the state court administrator shall ensure that all revenues
4639
representing the difference between the fees in effect after May 2, 1994, and the fees
4640
in effect before February 1, 1994, are transferred to the Division of Finance for
4641
deposit in the restricted account.
4642
(c) The Division of Finance shall deposit all revenues received from the state court
4643
administrator into the restricted account created by this section.
4644
(d)(i) From May 1, 1995, until June 30, 1998, the state court administrator shall
4645
transfer $7 of the amount of a fine or bail forfeiture paid for a violation of Title
4646
41, Motor Vehicles, in a court of record to the Division of Facilities Construction
4647
and Management Capital Projects Fund. The division of money pursuant to
4648
Section 78A-5-110 shall be calculated on the balance of the fine or bail forfeiture
4649
paid.
4650
(ii) After June 30, 1998, the state court administrator or a municipality shall transfer
4651
$7 of the amount of a fine or bail forfeiture paid for a violation of Title 41, Motor
4652
Vehicles, in a court of record to the Division of Finance for deposit in the
- 137 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
4653
restricted account created by this section. The division of money pursuant to
4654
Section 78A-5-110 shall be calculated on the balance of the fine or bail forfeiture
4655
paid.
4656
(3)(a) There is created within the General Fund a restricted account known as the State
4657
Courts Complex Account.
4658
(b) The Legislature may appropriate money from the restricted account to the state court
4659
administrator for the following purposes only:
4660
(i) to repay costs associated with the construction of the court complex that were
4661
funded from sources other than revenues provided for under this Subsection
4662
(3)(b)(i); and
4663
(ii) to cover operations and maintenance costs on the court complex.
4664
Section 58. Section 78B-8-302 is amended to read:
4665
78B-8-302 . Process servers.
4666
(1) A complaint, a summons, or a subpoena may be served by an individual who is:
4667
(a) 18 years old or older at the time of service; and
4668
(b) not a party to the action or a party's attorney.
4669
(2) Except as provided in Subsection (5), the following may serve all process issued by the
4670
courts of this state:
4671
(a) a peace officer employed by a political subdivision of the state acting within the
4672
scope and jurisdiction of the peace officer's employment;
4673
(b) a sheriff or appointed deputy sheriff employed by a county of the state;
4674
(c) a constable, or the constable's deputy, serving in compliance with applicable law;
4675
(d) an investigator employed by the state and authorized by law to serve civil process; or
4676
(e) a private investigator licensed in accordance with Title 53, Chapter 9, Private
4677
Investigator Regulation Act.
4678
(3) A private investigator licensed in accordance with Title 53, Chapter 9, Private
4679
Investigator Regulation Act, may not make an arrest pursuant to a bench warrant.
4680
(4) While serving process, a private investigator shall:
4681
(a) have on the investigator's body a visible form of credentials and identification
4682
identifying:
4683
(i) the investigator's name;
4684
(ii) that the investigator is a licensed private investigator; and
4685
(iii) the name and address of the agency employing the investigator or, if the
4686
investigator is self-employed, the address of the investigator's place of business;
- 138 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
4687
(b) verbally communicate to the person being served that the investigator is acting as a
4688
process server; and
4689
(c) print on the first page of each document served:
4690
(i) the investigator's name and identification number as a private investigator; and
4691
(ii) the address and phone number for the investigator's place of business.
4692
(5) The following may only serve process under this section when the use of force is
4693
authorized on the face of the document, or when a breach of the peace is imminent or
4694
likely under the totality of the circumstances:
4695
(a) a law enforcement officer, as defined in Section 53-13-103; or
4696
(b) a special function officer, as defined in Section 53-13-105, who is:
4697
(i) employed as an appointed deputy sheriff by a county of the state; or
4698
(ii) a constable.
4699
(6) The following may not serve process issued by a court:
4700
(a) an individual convicted of a felony violation of an offense [listed in Subsection
4701
77-41-102(19)] that would result in the individual being a sex offender under
4702
Subsection 53-29-202(2)(b); or
4703
(b) an individual who is a respondent in a proceeding described in Title 78B, Chapter 7,
4704
Protective Orders and Stalking Injunctions, in which a court has granted the
4705
petitioner a protective order.
4706
(7) An individual serving process shall:
4707
(a) legibly document the date and time of service on the front page of the document
4708
being served;
4709
(b) legibly print the process server's name, address, and telephone number on the return
4710
of service;
4711
(c) sign the return of service in substantial compliance with Title 78B, Chapter 18a,
4712
Uniform Unsworn Declarations Act;
4713
(d) if the process server is a peace officer, sheriff, or deputy sheriff, legibly print the
4714
badge number of the process server on the return of service; and
4715
(e) if the process server is a private investigator, legibly print the private investigator's
4716
identification number on the return of service.
4717
Section 59. Section 80-3-406 is amended to read:
4718
80-3-406 . Permanency plan -- Reunification services.
4719
(1) If the juvenile court orders continued removal at the dispositional hearing under Section
4720
80-3-402, and that the minor remain in the custody of the division, the juvenile court
- 139 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
4721
shall first:
4722
(a) establish a primary permanency plan and a concurrent permanency plan for the minor
4723
in accordance with this section; and
4724
(b) determine whether, in view of the primary permanency plan, reunification services
4725
are appropriate for the minor and the minor's family under Subsections (5) through (8).
4726
(2)(a) The concurrent permanency plan shall include:
4727
(i) a representative list of the conditions under which the primary permanency plan
4728
will be abandoned in favor of the concurrent permanency plan; and
4729
(ii) an explanation of the effect of abandoning or modifying the primary permanency
4730
plan.
4731
(b) In determining the primary permanency plan and concurrent permanency plan, the
4732
juvenile court shall consider:
4733
(i) the preference for kinship placement over nonkinship placement, including the
4734
rebuttable presumption described in Subsection 80-3-302(7)(a);
4735
(ii) the potential for a guardianship placement if parental rights are terminated and no
4736
appropriate adoption placement is available; and
4737
(iii) the use of an individualized permanency plan, only as a last resort.
4738
(3)(a) The juvenile court may amend a minor's primary permanency plan before the
4739
establishment of a final permanency plan under Section 80-3-409.
4740
(b) The juvenile court is not limited to the terms of the concurrent permanency plan in
4741
the event that the primary permanency plan is abandoned.
4742
(c) If, at any time, the juvenile court determines that reunification is no longer a minor's
4743
primary permanency plan, the juvenile court shall conduct a permanency hearing in
4744
accordance with Section 80-3-409 on or before the earlier of:
4745
(i) 30 days after the day on which the juvenile court makes the determination
4746
described in this Subsection (3)(c); or
4747
(ii) the day on which the provision of reunification services, described in Section
4748
80-3-409, ends.
4749
(4)(a) Because of the state's interest in and responsibility to protect and provide
4750
permanency for minors who are abused, neglected, or dependent, the Legislature
4751
finds that a parent's interest in receiving reunification services is limited.
4752
(b) The juvenile court may determine that:
4753
(i) efforts to reunify a minor with the minor's family are not reasonable or
4754
appropriate, based on the individual circumstances; and
- 140 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
4755
(ii) reunification services should not be provided.
4756
(c) In determining reasonable efforts to be made with respect to a minor, and in making
4757
reasonable efforts, the juvenile court and the division shall consider the minor's
4758
health, safety, and welfare as the paramount concern.
4759
(5) There is a presumption that reunification services should not be provided to a parent if
4760
the juvenile court finds, by clear and convincing evidence, that any of the following
4761
circumstances exist:
4762
(a) the whereabouts of the parents are unknown, based on a verified affidavit indicating
4763
that a reasonably diligent search has failed to locate the parent;
4764
(b) subject to Subsection (6)(a), the parent is suffering from a mental illness of such
4765
magnitude that the mental illness renders the parent incapable of utilizing
4766
reunification services;
4767
(c) the minor was previously adjudicated as an abused child due to physical abuse,
4768
sexual abuse, or sexual exploitation, and following the adjudication the child:
4769
(i) was removed from the custody of the minor's parent;
4770
(ii) was subsequently returned to the custody of the parent; and
4771
(iii) is being removed due to additional physical abuse, sexual abuse, or sexual
4772
exploitation;
4773
(d) the parent:
4774
(i) caused the death of another minor through abuse or neglect;
4775
(ii) committed, aided, abetted, attempted, conspired, or solicited to commit:
4776
(A) murder or manslaughter of a minor; or
4777
(B) child abuse homicide;
4778
(iii) committed sexual abuse against the minor;
4779
(iv) is [a registered sex offender or required to register as a sex offender] a sex
4780
offender under Subsection 53-29-202(2)(b); or
4781
(v)(A) intentionally, knowingly, or recklessly causes the death of another parent
4782
of the minor;
4783
(B) is identified by a law enforcement agency as the primary suspect in an
4784
investigation for intentionally, knowingly, or recklessly causing the death of
4785
another parent of the minor; or
4786
(C) is being prosecuted for or has been convicted of intentionally, knowingly, or
4787
recklessly causing the death of another parent of the minor;
4788
(e) the minor suffered severe abuse by the parent or by any individual known by the
- 141 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
4789
parent if the parent knew or reasonably should have known that the individual was
4790
abusing the minor;
4791
(f) the minor is adjudicated as an abused minor as a result of severe abuse by the parent,
4792
and the juvenile court finds that it would not benefit the minor to pursue reunification
4793
services with the offending parent;
4794
(g) the parent's rights are terminated with regard to any other minor;
4795
(h) the minor was removed from the minor's home on at least two previous occasions
4796
and reunification services were offered or provided to the family at those times;
4797
(i) the parent has abandoned the minor for a period of six months or longer;
4798
(j) the parent permitted the minor to reside, on a permanent or temporary basis, at a
4799
location where the parent knew or should have known that a clandestine laboratory
4800
operation was located;
4801
(k) except as provided in Subsection (6)(b), with respect to a parent who is the minor's
4802
birth mother, the minor has fetal alcohol syndrome, fetal alcohol spectrum disorder,
4803
or was exposed to an illegal or prescription drug that was abused by the minor's
4804
mother while the minor was in utero, if the minor was taken into division custody for
4805
that reason, unless the mother agrees to enroll in, is currently enrolled in, or has
4806
recently and successfully completed a substance use disorder treatment program
4807
approved by the department; or
4808
(l) any other circumstance that the juvenile court determines should preclude
4809
reunification efforts or services.
4810
(6)(a) The juvenile court shall base the finding under Subsection (5)(b) on competent
4811
evidence from at least two medical or mental health professionals, who are not
4812
associates, establishing that, even with the provision of services, the parent is not
4813
likely to be capable of adequately caring for the minor within 12 months after the day
4814
on which the juvenile court finding is made.
4815
(b) The juvenile court may disregard the provisions of Subsection (5)(k) if the juvenile
4816
court finds, under the circumstances of the case, that the substance use disorder
4817
treatment described in Subsection (5)(k) is not warranted.
4818
(7) In determining whether reunification services are appropriate, the juvenile court shall
4819
take into consideration:
4820
(a) failure of the parent to respond to previous services or comply with a previous child
4821
and family plan;
4822
(b) the fact that the minor was abused while the parent was under the influence of drugs
- 142 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
4823
or alcohol;
4824
(c) any history of violent behavior directed at the minor or an immediate family member;
4825
(d) whether a parent continues to live with an individual who abused the minor;
4826
(e) any patterns of the parent's behavior that have exposed the minor to repeated abuse;
4827
(f) testimony by a competent professional that the parent's behavior is unlikely to be
4828
successful; and
4829
(g) whether the parent has expressed an interest in reunification with the minor.
4830
(8) If, under Subsections (5)(b) through (l), the juvenile court does not order reunification
4831
services, a permanency hearing shall be conducted within 30 days in accordance with
4832
Section 80-3-409.
4833
(9)(a) Subject to Subsections (9)(b) through (e), if the juvenile court determines that
4834
reunification services are appropriate for the minor and the minor's family, the
4835
juvenile court shall provide for reasonable parent-time with the parent or parents
4836
from whose custody the minor was removed, unless parent-time is not in the best
4837
interest of the minor.
4838
(b) Parent-time is in the best interests of a minor unless the juvenile court makes a
4839
finding that it is necessary to deny parent-time in order to:
4840
(i) protect the physical safety of the minor;
4841
(ii) protect the life of the minor; or
4842
(iii) prevent the minor from being traumatized by contact with the parent due to the
4843
minor's fear of the parent in light of the nature of the alleged abuse or neglect.
4844
(c) Notwithstanding Subsection (9)(a), a juvenile court may not deny parent-time based
4845
solely on a parent's failure to:
4846
(i) prove that the parent has not used legal or illegal substances; or
4847
(ii) comply with an aspect of the child and family plan that is ordered by the juvenile
4848
court.
4849
(d) Parent-time shall be under the least restrictive conditions necessary to:
4850
(i) protect the physical safety of the child; or
4851
(ii) prevent the child from being traumatized by contact with the parent due to the
4852
minor's fear of the parent in light of the nature of the alleged abuse or neglect.
4853
(e)(i) The division or the person designated by the division or a court to supervise a
4854
parent-time session may deny parent-time for the session if the division or the
4855
supervising person determines that, based on the parent's condition, it is necessary
4856
to deny parent-time to:
- 143 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
4857
(A) protect the physical safety of the child;
4858
(B) protect the life of the child; or
4859
(C) consistent with Subsection (9)(e)(ii), prevent the child from being traumatized
4860
by contact with the parent.
4861
(ii) In determining whether the condition of the parent described in Subsection
4862
(9)(e)(i) will traumatize a child, the division or the person supervising the
4863
parent-time session shall consider the impact that the parent's condition will have
4864
on the child in light of:
4865
(A) the child's fear of the parent; and
4866
(B) the nature of the alleged abuse or neglect.
4867
(10)(a) If the juvenile court determines that reunification services are appropriate, the
4868
juvenile court shall order that the division make reasonable efforts to provide services
4869
to the minor and the minor's parent for the purpose of facilitating reunification of the
4870
family, for a specified period of time.
4871
(b) In providing the services described in Subsection (10)(a), the juvenile court and the
4872
division shall consider the minor's health, safety, and welfare as the paramount
4873
concern.
4874
(11) In cases where sexual abuse, sexual exploitation, abandonment, severe abuse, or severe
4875
neglect are involved:
4876
(a) the juvenile court does not have any duty to order reunification services; and
4877
(b) the division does not have a duty to make reasonable efforts to or in any other way
4878
attempt to provide reunification services or attempt to rehabilitate the offending
4879
parent or parents.
4880
(12)(a) The juvenile court shall:
4881
(i) determine whether the services offered or provided by the division under the child
4882
and family plan constitute reasonable efforts on the part of the division;
4883
(ii) determine and define the responsibilities of the parent under the child and family
4884
plan in accordance with Subsection 80-3-307(5)(g)(iii); and
4885
(iii) identify verbally on the record, or in a written document provided to the parties,
4886
the responsibilities described in Subsection (12)(a)(ii), for the purpose of assisting
4887
in any future determination regarding the provision of reasonable efforts, in
4888
accordance with state and federal law.
4889
(b) If the parent is in a substance use disorder treatment program, other than a certified
4890
drug court program, the juvenile court may order the parent:
- 144 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
4891
(i) to submit to supplementary drug or alcohol testing, in accordance with Subsection
4892
80-3-110(6), in addition to the testing recommended by the parent's substance use
4893
disorder program based on a finding of reasonable suspicion that the parent is
4894
abusing drugs or alcohol; and
4895
(ii) to provide the results of drug or alcohol testing recommended by the substance
4896
use disorder program to the juvenile court or division.
4897
(13)(a) The time period for reunification services may not exceed 12 months from the
4898
day on which the minor was initially removed from the minor's home, unless the time
4899
period is extended under Subsection 80-3-409(7).
4900
(b) This section does not entitle any parent to an entire 12 months of reunification
4901
services.
4902
(14)(a) If reunification services are ordered, the juvenile court may terminate those
4903
services at any time.
4904
(b) If, at any time, continuation of reasonable efforts to reunify a minor is determined to
4905
be inconsistent with the final permanency plan for the minor established under
4906
Section 80-3-409, then measures shall be taken, in a timely manner, to:
4907
(i) place the minor in accordance with the final permanency plan; and
4908
(ii) complete whatever steps are necessary to finalize the permanent placement of the
4909
minor.
4910
(15) Any physical custody of the minor by the parent or a relative during the period
4911
described in Subsections (10) through (14) does not interrupt the running of the period.
4912
(16)(a) If reunification services are ordered, the juvenile court shall conduct a
4913
permanency hearing in accordance with Section 80-3-409 before the day on which
4914
the time period for reunification services expires.
4915
(b) The permanency hearing shall be held no later than 12 months after the original
4916
removal of the minor.
4917
(c) If reunification services are not ordered, a permanency hearing shall be conducted
4918
within 30 days in accordance with Section 80-3-409.
4919
(17) With regard to a minor in the custody of the division whose parent or parents are
4920
ordered to receive reunification services but who have abandoned that minor for a period
4921
of six months from the day on which reunification services are ordered:
4922
(a) the juvenile court shall terminate reunification services; and
4923
(b) the division shall petition the juvenile court for termination of parental rights.
4924
(18) When a minor is under the custody of the division and has been separated from a
- 145 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
4925
sibling due to foster care or adoptive placement, a juvenile court may order sibling
4926
visitation, subject to the division obtaining consent from the sibling's guardian,
4927
according to the juvenile court's determination of the best interests of the minor for
4928
whom the hearing is held.
4929
(19)(a) If reunification services are not ordered under this section, and the whereabouts
4930
of a parent becomes known within six months after the day on which the out-of-home
4931
placement of the minor is made, the juvenile court may order the division to provide
4932
reunification services.
4933
(b) The time limits described in this section are not tolled by the parent's absence.
4934
(20)(a) If a parent is incarcerated or institutionalized, the juvenile court shall order
4935
reasonable services unless the juvenile court determines that those services would be
4936
detrimental to the minor.
4937
(b) In making the determination described in Subsection (20)(a), the juvenile court shall
4938
consider:
4939
(i) the age of the minor;
4940
(ii) the degree of parent-child bonding;
4941
(iii) the length of the sentence;
4942
(iv) the nature of the treatment;
4943
(v) the nature of the crime or illness;
4944
(vi) the degree of detriment to the minor if services are not offered;
4945
(vii) for a minor who is 10 years old or older, the minor's attitude toward the
4946
implementation of family reunification services; and
4947
(viii) any other appropriate factors.
4948
(c) Reunification services for an incarcerated parent are subject to the time limitations
4949
imposed in this section.
4950
(d) Reunification services for an institutionalized parent are subject to the time
4951
limitations imposed in this section, unless the juvenile court determines that
4952
continued reunification services would be in the minor's best interest.
4953
Section 60. Section 80-5-201 is amended to read:
4954
80-5-201 . Division responsibilities.
4955
(1) The division is responsible for all minors committed to the division by juvenile courts
4956
under Sections 80-6-703 and 80-6-705.
4957
(2) The division shall:
4958
(a) establish and administer a continuum of community, secure, and nonsecure programs
- 146 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
4959
for all minors committed to the division;
4960
(b) establish and maintain all detention and secure care facilities and set minimum
4961
standards for all detention and secure care facilities;
4962
(c) establish and operate prevention and early intervention youth services programs for
4963
nonadjudicated minors placed with the division;
4964
(d) establish observation and assessment programs necessary to serve minors in a
4965
nonresidential setting under Subsection 80-6-706(1);
4966
(e) place minors committed to the division under Section 80-6-703 in the most
4967
appropriate program for supervision and treatment;
4968
(f) employ staff necessary to:
4969
(i) supervise and control minors committed to the division for secure care or
4970
placement in the community;
4971
(ii) supervise and coordinate treatment of minors committed to the division for
4972
placement in community-based programs; and
4973
(iii) control and supervise adjudicated and nonadjudicated minors placed with the
4974
division for temporary services in juvenile receiving centers, youth services, and
4975
other programs established by the division;
4976
(g) control or detain a minor committed to the division, or in the temporary custody of
4977
the division, in a manner that is consistent with public safety and rules made by the
4978
division;
4979
(h) establish and operate work programs for minors committed to the division by the
4980
juvenile court that:
4981
(i) are not residential;
4982
(ii) provide labor to help in the operation, repair, and maintenance of public facilities,
4983
parks, highways, and other programs designated by the division;
4984
(iii) provide educational and prevocational programs in cooperation with the State
4985
Board of Education for minors placed in the program; and
4986
(iv) provide counseling to minors;
4987
(i) establish minimum standards for the operation of all private residential and
4988
nonresidential rehabilitation facilities that provide services to minors who have
4989
committed an offense in this state or in any other state;
4990
(j) provide regular training for secure care staff, detention staff, case management staff,
4991
and staff of the community-based programs;
4992
(k) designate employees to obtain the saliva DNA specimens required under Section
- 147 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
4993
53-10-403;
4994
(l) ensure that the designated employees receive appropriate training and that the
4995
specimens are obtained in accordance with accepted protocol;
4996
(m) register an individual with the Department of Public Safety who:
4997
(i) is adjudicated for an offense [listed in Subsection 77-41-102(1) or 77-41-102(19)]
4998
that would result in the individual being a child abuse offender under Subsection
4999
53-29-202(2)(a) or a sex offender under Subsection 53-29-202(2)(b);
5000
(ii) is committed to the division for secure care; and
5001
(iii)(A) if the individual is a youth offender, remains in the division's custody 30
5002
days before the individual's 21st birthday; or
5003
(B) if the individual is a serious youth offender, remains in the division's custody
5004
30 days before the individual's 25th birthday; and
5005
(n) ensure that a program delivered to a minor under this section is an evidence-based
5006
program in accordance with Section 63M-7-208.
5007
(3)(a) The division is authorized to employ special function officers, as defined in
5008
Section 53-13-105, to:
5009
(i) locate and apprehend minors who have absconded from division custody;
5010
(ii) transport minors taken into custody in accordance with division policy;
5011
(iii) investigate cases; and
5012
(iv) carry out other duties as assigned by the division.
5013
(b) A special function officer may be:
5014
(i) employed through a contract with the Department of Public Safety, or any law
5015
enforcement agency certified by the Peace Officer Standards and Training
5016
Division; or
5017
(ii) directly hired by the division.
5018
(4) In the event of an unauthorized leave from secure care, detention, a community-based
5019
program, a juvenile receiving center, a home, or any other designated placement of a
5020
minor, a division employee has the authority and duty to locate and apprehend the
5021
minor, or to initiate action with a local law enforcement agency for assistance.
5022
(5) The division may proceed with an initial medical screening or assessment of a child
5023
admitted to a detention facility to ensure the safety of the child and others in the
5024
detention facility if the division makes a good faith effort to obtain consent for the
5025
screening or assessment from the child's parent or guardian.
5026
Section 61. Section 80-8-101 is amended to read:
- 148 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
5027
80-8-101 . Definitions.
5028
As used in this chapter:
5029
(1) "Child" means an individual under 18 years old.
5030
(2) "Registered sex offender check" means a search of:
5031
(a) the [state's Sex and Kidnap Offender Registry] registry described in [Title 77, Chapter
5032
41, Sex and Kidnap Offender Registry] Title 53, Chapter 29, Sex, Kidnap, and Child
5033
Abuse Offender Registry; and
5034
(b) the National Sex Offender Public Website administered by the United States
5035
Department of Justice.
5036
(3) "Sexual abuse" means the same as that term is defined in Section 78B-2-308.
5037
(4)(a) "Youth services organization" means a sports league, athletic association, church
5038
or religious organization, scouting organization, or similar formally organized
5039
association, league, or organization, that provides recreational, educational, cultural,
5040
or social programs or activities to 25 or more children.
5041
(b) "Youth services organization" does not include any person that is required to conduct
5042
a background check on employees or volunteers under any other provision of state or
5043
federal law.
5044
(5) "Youth worker" means an individual:
5045
(a) who is 18 years old or older;
5046
(b) who is employed by or volunteers with a youth services organization; and
5047
(c) whose responsibilities as an employee or volunteer with the youth services
5048
organization give the individual regular and repeated care, supervision, guidance, or
5049
control of a child or children.
5050
Section 62. Section 80-8-201 is amended to read:
5051
80-8-201 . Youth protection requirements.
5052
(1) A youth service organization may not employ a youth worker or allow an individual to
5053
volunteer as a youth worker unless the youth service organization has completed a
5054
registered sex offender check for the individual.
5055
(2) A youth services organization shall require a potential youth worker to provide the
5056
individual's full name and a current, government-issued identification to facilitate the
5057
registered sex offender check required by Subsection (1).
5058
(3) If an individual is registered on the [state's Sex and Kidnap Offender Registry] registry
5059
described in Title 53, Chapter 29, Sex, Kidnap, and Child Abuse Offender Registry, or
5060
the National Sex Offender Public Website, a youth service organization may not employ
- 149 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
5061
the individual as a youth worker or allow the individual to volunteer as a youth worker.
5062
Section 63. Section 81-9-202 is amended to read:
5063
81-9-202 . Advisory guidelines for a custody and parent-time arrangement.
5064
(1) In addition to the parent-time schedules provided in Sections 81-9-302 and 81-9-304,
5065
the following advisory guidelines are suggested to govern a custody and parent-time
5066
arrangement between parents.
5067
(2) A parent-time schedule mutually agreed upon by both parents is preferable to a
5068
court-imposed solution.
5069
(3) A parent-time schedule shall be used to maximize the continuity and stability of the
5070
minor child's life.
5071
(4) Each parent shall give special consideration to make the minor child available to attend
5072
family functions including funerals, weddings, family reunions, religious holidays,
5073
important ceremonies, and other significant events in the life of the minor child or in the
5074
life of either parent which may inadvertently conflict with the parent-time schedule.
5075
(5)(a) The court shall determine the responsibility for the pick up, delivery, and return of
5076
the minor child when the parent-time order is entered.
5077
(b) The court may change the responsibility described in Subsection (5)(a) at any time a
5078
subsequent modification is made to the parent-time order.
5079
(c) If the noncustodial parent will be providing transportation, the custodial parent shall:
5080
(i) have the minor child ready for parent-time at the time the minor child is to be
5081
picked up ; and
5082
(ii) be present at the custodial home or make reasonable alternate arrangements to
5083
receive the minor child at the time the minor child is returned.
5084
(d) If the custodial parent will be transporting the minor child, the noncustodial parent
5085
shall:
5086
(i) be at the appointed place at the time the noncustodial parent is to receive the
5087
minor child; and
5088
(ii) have the minor child ready to be picked up at the appointed time and place or
5089
have made reasonable alternate arrangements for the custodial parent to pick up
5090
the minor child.
5091
(6) A parent may not interrupt regular school hours for a school-age minor child for the
5092
exercise of parent-time.
5093
(7) The court may:
5094
(a) make alterations in the parent-time schedule to reasonably accommodate the work
- 150 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
5095
schedule of both parents; and
5096
(b) increase the parent-time allowed to the noncustodial parent but may not diminish the
5097
standardized parent-time provided in Sections 81-9-302 and 81-9-304.
5098
(8) The court may make alterations in the parent-time schedule to reasonably accommodate
5099
the distance between the parties and the expense of exercising parent-time.
5100
(9) A parent may not withhold parent-time or child support due to the other parent's failure
5101
to comply with a court-ordered parent-time schedule.
5102
(10)(a) The custodial parent shall notify the noncustodial parent within 24 hours of
5103
receiving notice of all significant school, social, sports, and community functions in
5104
which the minor child is participating or being honored.
5105
(b) The noncustodial parent is entitled to attend and participate fully in the functions
5106
described in Subsection (10)(a).
5107
(c) The noncustodial parent shall have access directly to all school reports including
5108
preschool and daycare reports and medical records.
5109
(d) A parent shall immediately notify the other parent in the event of a medical
5110
emergency.
5111
(11) Each parent shall provide the other with the parent's current address and telephone
5112
number, email address, and other virtual parent-time access information within 24 hours
5113
of any change.
5114
(12)(a) Each parent shall permit and encourage, during reasonable hours, reasonable and
5115
uncensored communications with the minor child, in the form of mail privileges and
5116
virtual parent-time if the equipment is reasonably available.
5117
(b) If the parents cannot agree on whether the equipment is reasonably available, the
5118
court shall decide whether the equipment for virtual parent-time is reasonably [
5119
availableby] available by taking into consideration:
5120
(i) the best interests of the minor child;
5121
(ii) each parent's ability to handle any additional expenses for virtual parent-time; and
5122
(iii) any other factors the court considers material.
5123
(13)(a) Parental care is presumed to be better care for the minor child than surrogate care.
5124
(b) The court shall encourage the parties to cooperate in allowing the noncustodial
5125
parent, if willing and able to transport the minor child, to provide the child care.
5126
(c) Child care arrangements existing during the marriage are preferred as are child care
5127
arrangements with nominal or no charge.
5128
(14) Each parent shall:
- 151 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
5129
(a) provide all surrogate care providers with the name, current address, and telephone
5130
number of the other parent; and
5131
(b) provide the noncustodial parent with the name, current address, and telephone
5132
number of all surrogate care providers unless the court for good cause orders
5133
otherwise.
5134
(15)(a) Each parent is entitled to an equal division of major religious holidays celebrated
5135
by the parents.
5136
(b) The parent who celebrates a religious holiday that the other parent does not celebrate
5137
shall have the right to be together with the minor child on the religious holiday.
5138
(16) If the minor child is on a different parent-time schedule than a sibling, based on
5139
Sections 81-9-302 and 81-9-304, the parents should consider if an upward deviation for
5140
parent-time with all the minor children so that parent-time is uniform between school
5141
aged and nonschool aged children, is appropriate.
5142
(17)(a) When one or both parents are servicemembers or contemplating joining a
5143
uniformed service, the parents should resolve issues of custodial responsibility in the
5144
event of deployment as soon as practicable through reaching a voluntary agreement
5145
pursuant to Section 78B-20-201 or through court order obtained pursuant to this part.
5146
(b) Service members shall ensure their family care plan reflects orders and agreements
5147
entered and filed pursuant to Title 78B, Chapter 20, Uniform Deployed Parents
5148
Custody, Parent-time, and Visitation Act.
5149
(18) A parent shall immediately notify the other parent if:
5150
(a) the parent resides with an individual or provides an individual with access to the
5151
minor child; and
5152
(b) the parent knows that the individual:
5153
(i) is required to register as a sex offender[ or] , a kidnap offender, or a child abuse
5154
offender for an offense committed against a minor child under [Title 77, Chapter
5155
41, Sex and Kidnap Offender Registry] Title 53, Chapter 29, Sex, Kidnap, and
5156
Child Abuse Offender Registry; or
5157
[(ii) is required to register as a child abuse offender under Title 77, Chapter 43, Child
5158
Abuse Offender Registry; or]
5159
[(iii)] (ii) has been convicted of:
5160
(A) a child abuse offense under Section 76-5-109, 76-5-109.2, 76-5-109.3,
5161
76-5-114, or 76-5-208;
5162
(B) a sexual offense against a minor child under Title 76, Chapter 5, Part 4, Sexual
- 152 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
5163
Offenses;
5164
(C) an offense for kidnapping or human trafficking of a minor child under Title
5165
76, Chapter 5, Part 3, Kidnapping, Trafficking, and Smuggling;
5166
(D) a sexual exploitation offense against a minor child under Title 76, Chapter 5b,
5167
Sexual Exploitation Act; or
5168
(E) an offense that is substantially similar to an offense under Subsections [
5169
(18)(b)(iii)(A)] (18)(b)(ii)(A) through (D).
5170
(19)(a) For emergency purposes, whenever the minor child travels with a parent, the
5171
parent shall provide the following information to the other parent:
5172
(i) an itinerary of travel dates;
5173
(ii) destinations;
5174
(iii) places where the minor child or traveling parent can be reached; and
5175
(iv) the name and telephone number of an available third person who would be
5176
knowledgeable of the minor child's location.
5177
(b) Unchaperoned travel of a minor child under the age of five years is not
5178
recommended.
5179
Section 64. Section 81-9-208 is amended to read:
5180
81-9-208 . Modification or termination of a custody or parent-time order --
5181
Noncompliance with a parent-time order.
5182
(1) The court has continuing jurisdiction to make subsequent changes to modify:
5183
(a) custody of a minor child if there is a showing of a substantial and material change in
5184
circumstances since the entry of the order; and
5185
(b) parent-time for a minor child if there is a showing that there is a change in
5186
circumstances since the entry of the order.
5187
(2) A substantial and material change in circumstances under Subsection (1)(a) includes a
5188
showing by a parent that the other parent:
5189
(a) resides with an individual or provides an individual with access to the minor child;
5190
and
5191
(b) knows that the individual:
5192
(i) is required to register as a sex offender[ or] , a kidnap offender, or a child abuse
5193
offender for an offense committed against a minor child under [Title 77, Chapter
5194
41, Sex and Kidnap Offender Registry] Title 53, Chapter 29, Sex, Kidnap, and
5195
Child Abuse Offender Registry; or
5196
[(ii) is required to register as a child abuse offender under Title 77, Chapter 43, Child
- 153 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
5197
Abuse Offender Registry; or]
5198
[(iii)] (ii) has been convicted of:
5199
(A) a child abuse offense under Section 76-5-109, 76-5-109.2, 76-5-109.3,
5200
76-5-114, or 76-5-208;
5201
(B) a sexual offense against a minor child under Title 76, Chapter 5, Part 4, Sexual
5202
Offenses;
5203
(C) an offense for kidnapping or human trafficking of a minor child under Title
5204
76, Chapter 5, Part 3, Kidnapping, Trafficking, and Smuggling;
5205
(D) a sexual exploitation offense against a minor child under Title 76, Chapter 5b,
5206
Sexual Exploitation Act; or
5207
(E) an offense that is substantially similar to an offense under Subsections [
5208
(2)(b)(iii)(A)] (2)(b)(ii)(A) through (D).
5209
(3) On the petition of one or both of the parents, or the joint legal or physical custodians if
5210
they are not the parents, the court may, after a hearing, modify or terminate an order that
5211
established joint legal custody or joint physical custody if:
5212
(a) the verified petition or accompanying affidavit initially alleges that admissible
5213
evidence will show that there has been a substantial and material change in the
5214
circumstances of the minor child or one or both parents or joint legal or physical
5215
custodians since the entry of the order to be modified;
5216
(b) a modification of the terms and conditions of the order would be an improvement for
5217
and in the best interest of the minor child; and
5218
(c)(i) both parents have complied in good faith with the dispute resolution procedure
5219
in accordance with Subsection 81-9-205(8); or
5220
(ii) if no dispute resolution procedure is contained in the order that established joint
5221
legal custody or joint physical custody, the court orders the parents to participate
5222
in a dispute resolution procedure in accordance with Subsection 81-9-205(13)
5223
unless the parents certify that, in good faith, they have used a dispute resolution
5224
procedure to resolve their dispute.
5225
(4)(a) In determining whether the best interest of a minor child will be served by either
5226
modifying or terminating the joint legal custody or joint physical custody order, the
5227
court shall, in addition to other factors the court considers relevant, consider the
5228
factors described in Sections 81-9-204 and 81-9-205.
5229
(b) A court order modifying or terminating an existing joint legal custody or joint
5230
physical custody order shall contain written findings that:
- 154 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
5231
(i) a substantial and material change of circumstance has occurred; and
5232
(ii) a modification of the terms and conditions of the order would be an improvement
5233
for and in the best interest of the minor child.
5234
(c) The court shall give substantial weight to the existing joint legal custody or joint
5235
physical custody order when the minor child is thriving, happy, and well-adjusted.
5236
(5) The court shall, in every case regarding a petition for termination of a joint legal
5237
custody or joint physical custody order, consider reasonable alternatives to preserve the
5238
existing order in accordance with Section 81-9-204.
5239
(6) The court may modify the terms and conditions of the existing order in accordance with
5240
this chapter and may order the parents to file a parenting plan in accordance with
5241
Section 81-9-203.
5242
(7) A parent requesting a modification from sole custody to joint legal custody or joint
5243
physical custody or both, or any other type of shared parenting arrangement, shall file
5244
and serve a proposed parenting plan with the petition to modify in accordance with
5245
Section 81-9-203.
5246
(8) If an issue before the court involves custodial responsibility in the event of deployment
5247
of one or both parents who are service members, and the service member has not yet
5248
been notified of deployment, the court shall resolve the issue based on the standards in
5249
Sections 78B-20-306 through 78B-20-309.
5250
(9) If the court finds that an action to modify custody or parent-time is filed or answered
5251
frivolously and, in a manner, designed to harass the other party, the court shall assess
5252
attorney fees as costs against the offending party.
5253
(10) If a petition to modify custody or parent-time provisions of a court order is made and
5254
denied, the court shall order the petitioner to pay the reasonable attorney fees expended
5255
by the prevailing party in that action if the court determines that the petition was without
5256
merit and not asserted or defended against in good faith.
5257
(11) If a motion or petition alleges noncompliance with a parent-time order by a parent, or a
5258
visitation order by a grandparent or other member of the immediate family where a
5259
visitation or parent-time right has been previously granted by the court, the court:
5260
(a) may award to the prevailing party:
5261
(i) actual attorney fees incurred;
5262
(ii) the costs incurred by the prevailing party because of the other party's failure to
5263
provide or exercise court-ordered visitation or parent-time, including:
5264
(A) court costs;
- 155 - 2nd Sub. (Gray) S.B. 41 01-23 11:36
5265
(B) child care expenses;
5266
(C) transportation expenses actually incurred;
5267
(D) lost wages, if ascertainable; or
5268
(E) counseling for a parent or a minor child if ordered or approved by the court; or
5269
(iii) any other appropriate equitable remedy; and
5270
(b) shall award reasonable make-up parent-time to the prevailing party, unless make-up
5271
parent-time is not in the best interest of the minor child.
5272
Section 65. Repealer.
5273
This bill repeals:
5274
Section 77-41-102, Definitions.
5275
Section 77-41-103, Department duties.
5276
Section 77-41-104, Registration of offenders -- Department and agency requirements.
5277
Section 77-41-106, Offenses requiring lifetime registration.
5278
Section 77-41-107, Penalties.
5279
Section 77-41-108, Classification of information.
5280
Section 77-41-109, Miscellaneous provisions.
5281
Section 77-41-110, Sex offender, kidnap offender, and child abuse offender registry --
5282
Department to maintain.
5283
Section 77-41-111, Fees.
5284
Section 77-41-112, Removal from registry -- Requirements -- Procedure.
5285
Section 77-41-113, Removal for offenses or convictions for which registration is no
5286
longer required.
5287
Section 77-41-114, Registration for individuals under 18 years old at the time of the
5288
offense.
5289
Section 77-41-105, Registration of offenders -- Offender responsibilities.
5290
Section 66. Effective Date.
5291
This bill takes effect on May 7, 2025.
5292
Section 67. Coordinating S.B. 41 with H.B. 21.
5293
If S.B. 41, Sex, Kidnap, and Child Abuse Offender Registry Amendments, and H.B.
5294
21, Criminal Code Recodification and Cross References, both pass and become law, the
5295
Legislature intends that, on May 7, 2025:
5296
(1) Subsection 76-5-419(5)(a), which section is renumbered from Section 76-9-702 in
5297
H.B. 21, be amended to read:
5298
"(5)(a) As described in Subsection 53-29-202(4), for purposes of Subsection (3), a
- 156 - 01-23 11:36 2nd Sub. (Gray) S.B. 41
5299
plea of guilty or nolo contendere to a charge under this section that is held in abeyance under
5300
Title 77, Chapter 2a, Pleas in Abeyance, is the equivalent of a conviction.";
5301
(2) Subsection 53-29-202(1)(a)(xxx), which section is enacted in S.B. 41, be
5302
amended to read:
5303
"(xxx) a felony or class A misdemeanor violation of:
5304
(A) voyeurism under Section 76-12-306;
5305
(B) recorded or photographed voyeurism under Section 76-12-307; or
5306
(C) distribution of images obtained through voyeurism under Section
5307
76-12-308;";
5308
(3) Subsection 53-29-203(1)(a)(xxii), which section is enacted in S.B. 41, be
5309
amended to read:
5310
"(xxii) a felony or class A misdemeanor violation of:
5311
(A) voyeurism under Section 76-12-306;
5312
(B) recorded or photographed voyeurism under Section 76-12-307; or
5313
(C) distribution of images obtained through voyeurism under Section
5314
76-12-308;";
5315
(4) Subsection 53-29-204(2)(f), which section is enacted in S.B. 41, be amended to
5316
read:
5317
"(f) a class A misdemeanor violation of:
5318
(i) voyeurism under Section 76-12-306;
5319
(ii) recorded or photographed voyeurism under Section 76-12-307; or
5320
(iii) distribution of images obtained through voyeurism under Section
5321
76-12-308;"; and
5322
(5) Subsection 53-29-205 (3)(u), which section is enacted in S.B. 41, be amended to
5323
read:
5324
"(u) a felony violation of:
5325
(i) recorded or photographed voyeurism under Section 76-12-307; or
5326
(ii) distribution of images obtained through voyeurism under Section
5327
76-12-308;".
- 157 -