Utah 2025 Regular Session

Utah Senate Bill SB0252 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	~~03-04 17~~:28 ~~4th~~ Sub. (~~Pumpkin~~) S.B. 252
2		-	~~Ryan D. Wilcox~~ proposes the following substitute bill:
	1	+	02-27 14:56 3rd Sub. (Ivory) S.B. 252
	2	+	Todd Weiler proposes the following substitute bill:
3	3		1
4	4		Digital Information Seizure Amendments
5	5		2025 GENERAL SESSION
6	6		STATE OF UTAH
7	7		Chief Sponsor: Todd Weiler
8	8		House Sponsor: Ryan D. Wilcox
9	9		2
10	10
11	11		3
12	12		LONG TITLE
13	13		4
14	14		General Description:
15	15		5
16	16		This bill concerns digital information contained on a computer or portable communication
17	17		6
18	18		device seized by law enforcement.
19	19		7
20	20		Highlighted Provisions:
21	21		8
22	22		This bill:
23	23		9
24	24		▸ defines terms and modifies definitions;
25	25		10
26		-	▸ provides specific procedures and requirements regarding the copying ~~and return~~ of digital
	26	+	▸ provides specific procedures and requirements regarding the copying of stored digital
27	27		11
28		-	data on certain seized computers or portable communication devices;
	28	+	data and the return of certain seized computers or portable communication devices;
29	29		12
30	30		▸ prohibits a law enforcement agency or prosecuting agency from conditioning the return of
31	31		13
32		-	~~digital data from~~ a seized computer or portable communication device on the owner
	32	+	a seized computer or portable communication device on the owner consenting to a
33	33		14
34		-	~~consenting to a~~ search of the computer or portable communication device or providing
	34	+	search of the computer or portable communication device or providing the owner's
35	35		15
36		-	~~the owner's~~ password or otherwise unlocking the computer or portable communication
	36	+	password or otherwise unlocking the computer or portable communication device; and
37	37		16
38		-	~~device;~~
	38	+	▸ makes technical and conforming changes.
39	39		17
40		-	~~▸ requires a prosecuting attorney to notify the agency with custody of a seized computer or~~
	40	+	Money Appropriated in this Bill:
41	41		18
42		-	~~portable communication device within a specific time period when the prosecuting~~
	42	+	None
43	43		19
44		-	~~attorney determines that the computer or portable communication device no longer~~
	44	+	Other Special Clauses:
45	45		20
46		-	~~needs to be retained as evidence; and~~
	46	+	None
47	47		21
48		-	~~▸ makes technical and conforming changes.~~
	48	+	Utah Code Sections Affected:
49	49		22
50		-	~~Money Appropriated in this Bill~~:
	50	+	AMENDS:
51	51		23
52		-	~~None~~
	52	+	77-11a-101, as last amended by Laws of Utah 2024, Chapter 80
53	53		24
54		-	~~Other Special Clauses:~~
	54	+	77-11a-301, as last amended by Laws of Utah 2024, Chapter 80
55	55		25
56		-	~~None~~
	56	+	77-11a-305, as last amended by Laws of Utah 2024, Chapter 150
57	57		26
58		-	Utah ~~Code Sections Affected:~~
	58	+	77-11c-101, as last amended by Laws of Utah 2024, Chapter 234
59	59		27
60		-	~~AMENDS:~~
	60	+	77-11c-202, as last amended by Laws of Utah 2024, Chapters 150, 164
61	61		28
62		-	77-~~11a-101~~, as ~~last amended~~ by Laws of Utah 2024, Chapter 80
63		-	~~4th~~ Sub. S.B. 252 ~~4th~~ Sub. (~~Pumpkin~~) S.B. 252 ~~03-04 17~~:28
	62	+	77-11c-302, as enacted by Laws of Utah 2024, Chapter 150
	63	+	3rd Sub. S.B. 252 3rd Sub. (Ivory) S.B. 252 02-27 14:56
64	64		29
65		-	~~77-11a-301, as last amended by Laws of Utah 2024, Chapter 80~~
	65	+
66	66		30
67		-	~~77-11a-402, as last amended~~ by ~~Laws~~ of Utah ~~2024, Chapter 332~~
	67	+	Be it enacted by the Legislature of the state of Utah:
68	68		31
69		-	77-~~11c~~-101~~, as last~~ amended ~~by Laws of Utah 2024, Chapter 234~~
	69	+	Section 1. Section 77-11a-101 is amended to read:
70	70		32
71		-	77-~~11c-202,~~ ~~as last amended by Laws of Utah 2024, Chapters 150, 164~~
	71	+	77-11a-101 . Definitions.
72	72		33
73		-	~~77-11c-302,~~ as ~~enacted by Laws of Utah 2024,~~ Chapter ~~150~~
	73	+	As used in this chapter:
74	74		34
75		-
	75	+	(1)(a) "Agency" means an agency of this state or a political subdivision of this state.
76	76		35
77		-	~~Be it enacted by the Legislature of the state of Utah:~~
	77	+	(b) "Agency" includes a law enforcement agency or a multijurisdictional task force.
78	78		36
79		-	~~Section 1.~~ ~~Section 77-11a-101 is amended to read~~:
	79	+	(2) "Claimant" means:
80	80		37
81		-	~~77-11a-101 . Definitions.~~
	81	+	(a) an owner of property;
82	82		38
	83	+	(b) an interest holder; or
	84	+	39
	85	+	(c) an individual or entity who asserts a claim to any property for which an agency seeks
	86	+	40
	87	+	to forfeit.
	88	+	41
	89	+	(3)(a) "Computer" means, except as provided in Subsection (3)(c), an electronic,
	90	+	42
	91	+	magnetic, optical, electrochemical, or other high-speed data processing device that
	92	+	43
	93	+	performs logical, arithmetic, and storage functions.
	94	+	44
	95	+	(b) "Computer" includes any device that is used for the storage of digital or electronic
	96	+	45
	97	+	files, flash memory, software, or other electronic information.
	98	+	46
	99	+	(c) "Computer" does not [mean] include:
	100	+	47
	101	+	(i) [ ]a computer server of an Internet or electronic service provider, or the service
	102	+	48
	103	+	provider's employee, if used to comply with the requirements under 18 U.S.C.
	104	+	49
	105	+	Sec. 2258A[.] ;
	106	+	50
	107	+	(ii) a portable communication device; or
	108	+	51
	109	+	(iii) a device used for the purpose of taking protected wildlife regulated under Title
	110	+	52
	111	+	23A, Wildlife Resources Act, including a trail camera, unmanned aircraft, drone,
	112	+	53
	113	+	or a similar device that is capable of recording data.
	114	+	54
	115	+	(4)(a) "Contraband" means any property, item, or substance that is unlawful to produce
	116	+	55
	117	+	or to possess under state or federal law.
	118	+	56
	119	+	(b) "Contraband" includes:
	120	+	57
	121	+	(i) a controlled substance that is possessed, transferred, distributed, or offered for
	122	+	58
	123	+	distribution in violation of Title 58, Chapter 37, Utah Controlled Substances Act;
	124	+	59
	125	+	or
	126	+	60
	127	+	(ii) a computer or a portable communication device that:
	128	+	61
	129	+	(A) contains or houses child sexual abuse material, or is used to create, download,
	130	+	62
	131	+	transfer, upload to a storage account, or store any electronic or digital files
	132	+	- 2 - 02-27 14:56 3rd Sub. (Ivory) S.B. 252
	133	+	63
	134	+	containing child sexual abuse material; or
	135	+	64
	136	+	(B) contains the personal identifying information of another individual, as defined
	137	+	65
	138	+	in Section 76-6-1101, whether that individual is alive or deceased, and the
	139	+	66
	140	+	personal identifying information has been used to create false or fraudulent
	141	+	67
	142	+	identification documents or financial transaction cards in violation of Title 76,
	143	+	68
	144	+	Chapter 6, Part 5, Fraud.
	145	+	69
	146	+	(5) "Controlled substance" means the same as that term is defined in Section 58-37-2.
	147	+	70
	148	+	(6) "Court" means a municipal, county, or state court.
	149	+	71
	150	+	(7) "Division of Law Enforcement" means the division within the Department of Natural
	151	+	72
	152	+	Resources created under Title 79, Chapter 2, Part 7, Division of Law Enforcement.
	153	+	73
	154	+	(8) "Evidence" means the same as that term is defined in Section 77-11c-101.
	155	+	74
	156	+	(9) "Forfeit" means to divest a claimant of an ownership interest in property seized by a
	157	+	75
	158	+	peace officer or agency.
	159	+	76
	160	+	(10) "Innocent owner" means a claimant who:
	161	+	77
	162	+	(a) held an ownership interest in property at the time of the commission of an offense
	163	+	78
	164	+	subjecting the property to seizure, and:
	165	+	79
	166	+	(i) did not have actual knowledge of the offense subjecting the property to seizure; or
	167	+	80
	168	+	(ii) upon learning of the commission of the offense, took reasonable steps to prohibit
	169	+	81
	170	+	the use of the property in the commission of the offense; or
	171	+	82
	172	+	(b) acquired an ownership interest in the property and had no knowledge that the
	173	+	83
	174	+	commission of the offense subjecting the property to seizure had occurred or that the
	175	+	84
	176	+	property had been seized, and:
	177	+	85
	178	+	(i) acquired the property in a bona fide transaction for value;
	179	+	86
	180	+	(ii) was an individual, including a minor child, who acquired an interest in the
	181	+	87
	182	+	property through probate or inheritance; or
	183	+	88
	184	+	(iii) was a spouse who acquired an interest in property through dissolution of
	185	+	89
	186	+	marriage or by operation of law.
	187	+	90
	188	+	(11)(a) "Interest holder" means a secured party as defined in Section 70A-9a-102, a
	189	+	91
	190	+	party with a right-of-offset, a mortgagee, lien creditor, or the beneficiary of a security
	191	+	92
	192	+	interest or encumbrance pertaining to an interest in property, whose interest would be
	193	+	93
	194	+	perfected against a good faith purchaser for value.
	195	+	94
	196	+	(b) "Interest holder" does not mean a person:
	197	+	95
	198	+	(i) who holds property for the benefit of or as an agent or nominee for another
	199	+	96
	200	+	person; or
	201	+	- 3 - 3rd Sub. (Ivory) S.B. 252 02-27 14:56
	202	+	97
	203	+	(ii) who is not in substantial compliance with any statute requiring an interest in
	204	+	98
	205	+	property to be:
	206	+	99
	207	+	(A) recorded or reflected in public records in order to perfect the interest against a
	208	+	100
	209	+	good faith purchaser for value; or
	210	+	101
	211	+	(B) held in control by a secured party, as defined in Section 70A-9a-102, in
	212	+	102
	213	+	accordance with Section 70A-9a-314 in order to perfect the interest against a
	214	+	103
	215	+	good faith purchaser for value.
	216	+	104
	217	+	(12) "Law enforcement agency" means:
	218	+	105
	219	+	(a) a municipal, county, state institution of higher education, or state police force or
	220	+	106
	221	+	department;
	222	+	107
	223	+	(b) a sheriff's office; or
	224	+	108
	225	+	(c) a municipal, county, or state prosecuting authority.
	226	+	109
	227	+	(13) "Legislative body" means:
	228	+	110
	229	+	(a)(i) the Legislature, county commission, county council, city commission, city
	230	+	111
	231	+	council, or town council that has fiscal oversight and budgetary approval authority
	232	+	112
	233	+	over an agency; or
	234	+	113
	235	+	(ii) the agency's governing political subdivision; or
	236	+	114
	237	+	(b) the lead governmental entity of a multijurisdictional task force, as designated in a
	238	+	115
	239	+	memorandum of understanding executed by the agencies participating in the task
	240	+	116
	241	+	force.
	242	+	117
	243	+	(14) "Multijurisdictional task force" means a law enforcement task force or other agency
	244	+	118
	245	+	comprised of individuals who are employed by or acting under the authority of different
	246	+	119
	247	+	governmental entities, including federal, state, county, or municipal governments, or any
	248	+	120
	249	+	combination of federal, state, county, or municipal agencies.
	250	+	121
	251	+	(15) "Owner" means an individual or entity, other than an interest holder, that possesses a
	252	+	122
	253	+	bona fide legal or equitable interest in property.
	254	+	123
	255	+	(16) "Pawn or secondhand business" means the same as that term is defined in Section
	256	+	124
	257	+	13-32a-102.
	258	+	125
	259	+	(17) "Peace officer" means an employee:
	260	+	126
	261	+	(a) of an agency;
	262	+	127
	263	+	(b) whose duties consist primarily of the prevention and detection of violations of laws
	264	+	128
	265	+	of this state or a political subdivision of this state; and
	266	+	129
	267	+	(c) who is authorized by the agency to seize property.
	268	+	130
	269	+	(18)(a) "Portable communication device" means a portable electronic device designed to
	270	+	- 4 - 02-27 14:56 3rd Sub. (Ivory) S.B. 252
	271	+	131
	272	+	receive and transmit a text message, email, video, voice, or similar communication.
	273	+	132
	274	+	(b) "Portable communication device" includes:
	275	+	133
	276	+	(i) a smart phone;
	277	+	134
	278	+	(ii) a cellular phone that is not a smart phone;
	279	+	135
	280	+	(iii) a tablet; and
	281	+	136
	282	+	(iv) a substantially similar communication device used to initiate or receive
	283	+	137
	284	+	communication, information, or data.
	285	+	138
	286	+	(c) "Portable communication device" does not include a device used for the purpose of
	287	+	139
	288	+	taking protected wildlife regulated under Title 23A, Wildlife Resources Act,
	289	+	140
	290	+	including a trail camera, unmanned aircraft, drone, or a similar device that is capable
	291	+	141
	292	+	of recording data.
	293	+	142
	294	+	[(18)] (19)(a) "Proceeds" means:
	295	+	143
	296	+	(i) property of any kind that is obtained directly or indirectly as a result of the
	297	+	144
	298	+	commission of an offense; or
	299	+	145
	300	+	(ii) any property acquired directly or indirectly from, produced through, realized
	301	+	146
	302	+	through, or caused by an act or omission regarding property under Subsection [
	303	+	147
	304	+	(18)(a)(i)] (19)(a)(i).
	305	+	148
	306	+	(b) "Proceeds" includes any property of any kind without reduction for expenses
	307	+	149
	308	+	incurred in the acquisition, maintenance, or production of that property, or any other
	309	+	150
	310	+	purpose regarding property under Subsection [(18)(a)(i)] (19)(a)(i).
	311	+	151
	312	+	(c) "Proceeds" is not limited to the net gain or profit realized from the offense that
	313	+	152
	314	+	subjects the property to seizure.
	315	+	153
	316	+	[(19)] (20)(a) "Property" means all property, whether real or personal, tangible or
	317	+	154
	318	+	intangible.
	319	+	155
	320	+	(b) "Property" does not include contraband.
	321	+	156
	322	+	[(20)] (21) "Prosecuting attorney" means:
	323	+	157
	324	+	(a) the attorney general and an assistant attorney general;
	325	+	158
	326	+	(b) a district attorney or deputy district attorney;
	327	+	159
	328	+	(c) a county attorney or assistant county attorney; and
	329	+	160
	330	+	(d) an attorney authorized to commence an action on behalf of the state.
	331	+	161
	332	+	[(21)] (22) "Public interest use" means a:
	333	+	162
	334	+	(a) use by a government agency as determined by the legislative body of the agency's
	335	+	163
	336	+	jurisdiction; or
	337	+	164
	338	+	(b) donation of the property to a nonprofit charity registered with the state.
	339	+	- 5 - 3rd Sub. (Ivory) S.B. 252 02-27 14:56
	340	+	165
	341	+	[(22)] (23) "Real property" means land, including any building, fixture, improvement,
	342	+	166
	343	+	appurtenance, structure, or other development that is affixed permanently to land.
	344	+	167
	345	+	[(23)] (24)(a) "Seized property" means property seized by a peace officer or agency in
	346	+	168
	347	+	accordance with Section 77-11a-201.
	348	+	169
	349	+	(b) "Seized property" includes property that the agency seeks to forfeit under Chapter
	350	+	170
	351	+	11b, Forfeiture of Seized Property.
	352	+	171
	353	+	(25) "Smart phone" means a portable electronic device that combines a cellular phone with
	354	+	172
	355	+	a hand-held computer, typically offering Internet access, data storage, and text, email,
	356	+	173
	357	+	and similar capabilities.
	358	+	174
	359	+	(26) "Tablet" means a portable electronic device that:
	360	+	175
	361	+	(a) is equipped with a mobile operating system, touchscreen display, and rechargeable
	362	+	176
	363	+	battery; and
	364	+	177
	365	+	(b) has the ability to support access to a cellular network.
	366	+	178
	367	+	Section 2. Section 77-11a-301 is amended to read:
	368	+	179
	369	+	77-11a-301 . Return of seized property to claimant -- Generally --
	370	+	180
	371	+	Noncontraband computer or portable communication device.
	372	+	181
	373	+	(1)(a) An agency with custody of seized property, or the prosecuting attorney, may
	374	+	182
	375	+	return the property to a claimant if the agency or the prosecuting attorney:
	376	+	183
	377	+	(i) determines that the agency does not need to retain or preserve the property as
	378	+	184
	379	+	evidence under Chapter 11c, Retention of Evidence; or
	380	+	185
	381	+	(ii) seeks to return the property to the claimant because the agency or prosecuting
	382	+	186
	383	+	attorney determines that the claimant is an innocent owner or an interest holder.
	384	+	187
	385	+	(b) An agency with custody of seized property, or the prosecuting attorney, may not
	386	+	188
	387	+	return property under this Subsection (1) if the property is subject to retention or
	388	+	189
	389	+	preservation under Chapter 11c, Retention of Evidence.
	390	+	190
	391	+	(2) An agency with custody of the seized property, or the prosecuting attorney, shall return
	392	+	191
	393	+	the property to a claimant if:
	394	+	192
	395	+	(a) the claimant posts a surety bond or cash with the court in accordance with Section
	396	+	193
	397	+	77-11a-302;
	398	+	194
	399	+	(b) the court orders the return of property to the claimant for hardship purposes under
	400	+	195
	401	+	Section 77-11a-303;
	402	+	196
	403	+	(c) a claimant establishes that the claimant is an innocent owner or an interest holder
	404	+	197
	405	+	under Section 77-11a-304; or
	406	+	198
	407	+	(d) the court orders property retained as evidence to be returned to the claimant under
	408	+	- 6 - 02-27 14:56 3rd Sub. (Ivory) S.B. 252
	409	+	199
	410	+	Section 77-11a-305.
	411	+	200
	412	+	(3)(a)(i) For a computer or portable communication device determined to be
	413	+	201
	414	+	contraband, a court may order the reasonable extraction and return of specifically
	415	+	202
	416	+	described personal digital data to the owner of the computer or portable
	417	+	203
	418	+	communication device.
	419	+	204
	420	+	[(b)] (ii) The agency shall determine a reasonable cost to extract the data described in
	421	+	205
	422	+	Subsection (3)(a)(i).
	423	+	206
	424	+	[(c)] (iii) At the time of the request to extract the data, the owner of the computer or
	425	+	207
	426	+	portable communication device shall pay the agency the cost to extract the data
	427	+	208
	428	+	described in Subsection (3)(a)(i).
	429	+	209
	430	+	(b)(i) For a computer or portable communication device that is not alleged to be
	431	+	210
	432	+	contraband but is alleged to contain evidence in the form of digital data contained
	433	+	211
	434	+	on the computer or portable communication device, the computer or portable
	435	+	212
	436	+	communication device may be returned under this section, or the owner of the
	437	+	213
	438	+	computer or portable communication device may follow the procedures described
	439	+	214
	440	+	in Section 77-11a-305 to regain possession of the computer or portable
	441	+	215
	442	+	communication device.
	443	+	216
	444	+	(ii) The cost of the copying or extraction of data from a computer or portable
	445	+	217
	446	+	communication device described in Subsection (3)(b)(i) may not be charged to the
	447	+	218
	448	+	owner of the computer or portable communication device.
	449	+	219
	450	+	(iii) A law enforcement agency or prosecuting agency may not condition the return of
	451	+	220
	452	+	a computer or portable communication device described in Subsection (3)(b)(i):
	453	+	221
	454	+	(A) on the owner providing the owner's password or otherwise unlocking,
	455	+	222
	456	+	accessing, or de-encrypting the computer or portable communication device; or
	457	+	223
	458	+	(B) on the owner consenting to a search of the digital contents of the computer or
	459	+	224
	460	+	portable communication device.
	461	+	225
	462	+	(4) If a natural resources officer for the Division of Law Enforcement seizes a vehicle, the
	463	+	226
	464	+	Division of Law Enforcement shall return the vehicle to a claimant in accordance with
	465	+	227
	466	+	Section 23A-5-201.
	467	+	228
	468	+	(5) If an agency is not required, or is no longer required, to retain or preserve property as
	469	+	229
	470	+	evidence under Chapter 11c, Retention of Evidence, and the agency seeks to return or
	471	+	230
	472	+	dispose of the property, the agency shall exercise due diligence in attempting to notify
	473	+	231
	474	+	the claimant of the property to advise the claimant that the property is to be returned.
	475	+	232
	476	+	(6)(a) Before an agency may return seized property to a person claiming ownership of
	477	+	- 7 - 3rd Sub. (Ivory) S.B. 252 02-27 14:56
	478	+	233
	479	+	the property, the person shall establish that the person:
	480	+	234
	481	+	(i) is the owner of the property; and
	482	+	235
	483	+	(ii) may lawfully possess the property.
	484	+	236
	485	+	(b) The person shall establish ownership under Subsection (6)(a) by providing to the
	486	+	237
	487	+	agency:
	488	+	238
	489	+	(i) identifying proof or documentation of ownership of the property; or
	490	+	239
	491	+	(ii) a notarized statement if proof or documentation is not available.
	492	+	240
	493	+	(c) When seized property is returned to the owner, the owner shall sign a receipt listing
	494	+	241
	495	+	in detail the property that is returned.
	496	+	242
	497	+	(d) The agency shall:
	498	+	243
	499	+	(i) retain a copy of the receipt; and
	500	+	244
	501	+	(ii) provide a copy of the receipt to the owner.
	502	+	245
	503	+	Section 3. Section 77-11a-305 is amended to read:
	504	+	246
	505	+	77-11a-305 . Release of seized property to claimant when seized property is
	506	+	247
	507	+	retained as evidence.
	508	+	248
	509	+	(1)(a) A claimant may file a petition with the court for the return of the property that is
	510	+	249
	511	+	being retained as evidence in accordance with Chapter 11c, Retention of Evidence.
	512	+	250
	513	+	(b) The claimant may file the petition in:
	514	+	251
	515	+	(i) the court in which criminal proceedings have commenced regarding the offense
	516	+	252
	517	+	for which the property is being retained as evidence; or
	518	+	253
	519	+	(ii) the district court with venue under Section 77-11a-102 if there are no pending
	520	+	254
	521	+	criminal proceedings.
	522	+	255
	523	+	(c) A claimant shall serve a copy of the petition on the prosecuting attorney or federal
	524	+	256
	525	+	prosecutor and the agency with custody of the property.
	526	+	257
	527	+	(2)(a) The court shall provide an opportunity for an expedited hearing.
	528	+	258
	529	+	(b) After the opportunity for an expedited hearing, the court may order that the property
	530	+	259
	531	+	is:
	532	+	260
	533	+	(i) returned to the claimant if the claimant is the owner as determined by the court;
	534	+	261
	535	+	(ii) if the offense subjecting the property to seizure results in a conviction, applied
	536	+	262
	537	+	directly or by proceeds of the sale of the property toward restitution, fines, or fees
	538	+	263
	539	+	owed by the claimant in an amount set by the court;
	540	+	264
	541	+	(iii) converted to a public interest use;
	542	+	265
	543	+	(iv) held for further legal action;
	544	+	266
	545	+	(v) sold at public auction and the proceeds of the sale applied to a public interest use;
	546	+	- 8 - 02-27 14:56 3rd Sub. (Ivory) S.B. 252
	547	+	267
	548	+	or
	549	+	268
	550	+	(vi) destroyed.
	551	+	269
	552	+	(3) Before the court can order property be returned to a claimant, the claimant shall
	553	+	270
	554	+	establish, by clear and convincing evidence, that the claimant:
	555	+	271
	556	+	(a) is the owner of the property; and
	557	+	272
	558	+	(b) may lawfully possess the property.
	559	+	273
	560	+	(4)(a) [If ] Subject to the provisions in Subsections (4)(b), (c), and (d), if the court orders
	561	+	274
	562	+	the property to be returned to the claimant, the agency with custody of the property
	563	+	275
	564	+	shall return the property to the claimant as expeditiously as possible.
	565	+	276
	566	+	(b) If the property at issue is a computer or a portable communication device that is not
	567	+	277
	568	+	alleged to be contraband and that the law enforcement agency or prosecuting agency
	569	+	278
	570	+	alleges may contain evidence in the form of digital information stored on the
	571	+	279
	572	+	computer or portable communication device, the law enforcement agency or
	573	+	280
	574	+	prosecuting agency with possession of the computer or portable communication
	575	+	281
	576	+	device shall:
	577	+	282
	578	+	(i) make a digital copy, clone, or other reproduction of the digital information stored
	579	+	283
	580	+	on the computer or portable communication device within:
	581	+	284
	582	+	(A) for a portable communication device, 30 days after the day on which the court
	583	+	285
	584	+	orders the return of the portable communication device; or
	585	+	286
	586	+	(B) for a computer, 120 days after the day on which the court orders the return of
	587	+	287
	588	+	the computer; and
	589	+	288
	590	+	(ii) allow the claimant to regain possession of the computer or portable
	591	+	289
	592	+	communication device if ordered by the court on an expedited basis in accordance
	593	+	290
	594	+	with Subsection (4)(a).
	595	+	291
	596	+	(c) If the law enforcement agency or prosecuting agency with possession of the
	597	+	292
	598	+	computer or portable communication device is unable to make a digital copy, clone,
	599	+	293
	600	+	or other reproduction of the digital information stored on the computer or portable
	601	+	294
	602	+	communication device within the deadlines described in Subsection (4)(b)(i), or
	603	+	295
	604	+	alleges that continued possession of the computer or portable communication device
	605	+	296
	606	+	itself, as opposed to a copy, clone, or reproduction, is necessary:
	607	+	297
	608	+	(i) the law enforcement agency or prosecuting agency shall provide to the court:
	609	+	298
	610	+	(A) an explanation as to why the digital copy, clone, or other reproduction has not
	611	+	299
	612	+	been completed and, if applicable, an estimate as to when the digital copy,
	613	+	300
	614	+	clone, or other reproduction will be completed; or
	615	+	- 9 - 3rd Sub. (Ivory) S.B. 252 02-27 14:56
	616	+	301
	617	+	(B) if applicable, the reasons as to why the law enforcement agency or prosecuting
	618	+	302
	619	+	agency contends that continued possession of the computer or portable
	620	+	303
	621	+	communication device itself is necessary, as opposed to a digital copy, clone,
	622	+	304
	623	+	or other reproduction; and
	624	+	305
	625	+	(ii) the court shall:
	626	+	306
	627	+	(A) consider the information described in Subsection (4)(c)(i), including, if
	628	+	307
	629	+	applicable, whether the law enforcement agency or prosecuting agency has
	630	+	308
	631	+	demonstrated that continued possession of the computer or portable
	632	+	309
	633	+	communication device itself, as opposed to a digital copy, clone, or other
	634	+	310
	635	+	reproduction, is reasonable under the circumstances of the case; and
	636	+	311
	637	+	(B) retain jurisdiction over the matter, including making any necessary orders,
	638	+	312
	639	+	until the property has been returned or the matter has otherwise been resolved.
	640	+	313
	641	+	(d) Digital information obtained from a computer or portable communication device
	642	+	314
	643	+	under Subsection (4)(b)(i) remains subject to warrant requirements and evidentiary
	644	+	315
	645	+	procedures.
	646	+	316
	647	+	Section 4. Section 77-11c-101 is amended to read:
	648	+	317
	649	+	77-11c-101 . Definitions.
	650	+	318
83	651		As used in this chapter:
84		-	39
85		-	(1)(a) "Agency" means an agency of this state or a political subdivision of this state.
86		-	40
87		-	(b) "Agency" includes a law enforcement agency or a multijurisdictional task force.
88		-	41
89		-	(2) "Claimant" means:
90		-	42
91		-	(a) an owner of property;
92		-	43
93		-	(b) an interest holder; or
94		-	44
95		-	(c) an individual or entity who asserts a claim to any property for which an agency seeks
96		-	45
97		-	to forfeit.
98		-	46
99		-	(3)(a) "Computer" means, except as provided in Subsection (3)(c), an electronic,
100		-	47
101		-	magnetic, optical, electrochemical, or other high-speed data processing device that
102		-	48
103		-	performs logical, arithmetic, and storage functions.
104		-	49
105		-	(b) "Computer" includes any device that is used for the storage of digital or electronic
106		-	50
107		-	files, flash memory, software, or other electronic information.
108		-	51
109		-	(c) "Computer" does not [mean] include:
110		-	52
111		-	(i) [ ]a computer server of an Internet or electronic service provider, or the service
112		-	53
113		-	provider's employee, if used to comply with the requirements under 18 U.S.C.
114		-	54
115		-	Sec. 2258A[.] ;
116		-	55
117		-	(ii) a portable communication device; or
118		-	56
119		-	(iii) a device used for the purpose of taking protected wildlife regulated under Title
120		-	57
121		-	23A, Wildlife Resources Act, including a trail camera, unmanned aircraft, drone,
122		-	58
123		-	or a similar device that is capable of recording data.
124		-	59
125		-	(4)(a) "Contraband" means any property, item, or substance that is unlawful to produce
126		-	60
127		-	or to possess under state or federal law.
128		-	61
129		-	(b) "Contraband" includes:
130		-	62
131		-	(i) a controlled substance that is possessed, transferred, distributed, or offered for
132		-	- 2 - 03-04 17:28 4th Sub. (Pumpkin) S.B. 252
133		-	63
134		-	distribution in violation of Title 58, Chapter 37, Utah Controlled Substances Act;
135		-	64
136		-	or
137		-	65
138		-	(ii) a computer or a portable communication device that:
139		-	66
140		-	(A) contains or houses child sexual abuse material, or is used to create, download,
141		-	67
142		-	transfer, upload to a storage account, or store any electronic or digital files
143		-	68
144		-	containing child sexual abuse material; or
145		-	69
146		-	(B) contains the personal identifying information of another individual, as defined
147		-	70
148		-	in Section 76-6-1101, whether that individual is alive or deceased, and the
149		-	71
150		-	personal identifying information has been used to create false or fraudulent
151		-	72
152		-	identification documents or financial transaction cards in violation of Title 76,
153		-	73
154		-	Chapter 6, Part 5, Fraud.
155		-	74
156		-	(5) "Controlled substance" means the same as that term is defined in Section 58-37-2.
157		-	75
158		-	(6) "Court" means a municipal, county, or state court.
159		-	76
160		-	(7) "Division of Law Enforcement" means the division within the Department of Natural
161		-	77
162		-	Resources created under Title 79, Chapter 2, Part 7, Division of Law Enforcement.
163		-	78
164		-	(8) "Evidence" means the same as that term is defined in Section 77-11c-101.
165		-	79
166		-	(9) "Forfeit" means to divest a claimant of an ownership interest in property seized by a
167		-	80
168		-	peace officer or agency.
169		-	81
170		-	(10) "Innocent owner" means a claimant who:
171		-	82
172		-	(a) held an ownership interest in property at the time of the commission of an offense
173		-	83
174		-	subjecting the property to seizure, and:
175		-	84
176		-	(i) did not have actual knowledge of the offense subjecting the property to seizure; or
177		-	85
178		-	(ii) upon learning of the commission of the offense, took reasonable steps to prohibit
179		-	86
180		-	the use of the property in the commission of the offense; or
181		-	87
182		-	(b) acquired an ownership interest in the property and had no knowledge that the
183		-	88
184		-	commission of the offense subjecting the property to seizure had occurred or that the
185		-	89
186		-	property had been seized, and:
187		-	90
188		-	(i) acquired the property in a bona fide transaction for value;
189		-	91
190		-	(ii) was an individual, including a minor child, who acquired an interest in the
191		-	92
192		-	property through probate or inheritance; or
193		-	93
194		-	(iii) was a spouse who acquired an interest in property through dissolution of
195		-	94
196		-	marriage or by operation of law.
197		-	95
198		-	(11)(a) "Interest holder" means a secured party as defined in Section 70A-9a-102, a
199		-	96
200		-	party with a right-of-offset, a mortgagee, lien creditor, or the beneficiary of a security
201		-	- 3 - 4th Sub. (Pumpkin) S.B. 252 03-04 17:28
202		-	97
203		-	interest or encumbrance pertaining to an interest in property, whose interest would be
204		-	98
205		-	perfected against a good faith purchaser for value.
206		-	99
207		-	(b) "Interest holder" does not mean a person:
208		-	100
209		-	(i) who holds property for the benefit of or as an agent or nominee for another
210		-	101
211		-	person; or
212		-	102
213		-	(ii) who is not in substantial compliance with any statute requiring an interest in
214		-	103
215		-	property to be:
216		-	104
217		-	(A) recorded or reflected in public records in order to perfect the interest against a
218		-	105
219		-	good faith purchaser for value; or
220		-	106
221		-	(B) held in control by a secured party, as defined in Section 70A-9a-102, in
222		-	107
223		-	accordance with Section 70A-9a-314 in order to perfect the interest against a
224		-	108
225		-	good faith purchaser for value.
226		-	109
227		-	(12) "Law enforcement agency" means:
228		-	110
229		-	(a) a municipal, county, state institution of higher education, or state police force or
230		-	111
231		-	department;
232		-	112
233		-	(b) a sheriff's office; or
234		-	113
235		-	(c) a municipal, county, or state prosecuting authority.
236		-	114
237		-	(13) "Legislative body" means:
238		-	115
239		-	(a)(i) the Legislature, county commission, county council, city commission, city
240		-	116
241		-	council, or town council that has fiscal oversight and budgetary approval authority
242		-	117
243		-	over an agency; or
244		-	118
245		-	(ii) the agency's governing political subdivision; or
246		-	119
247		-	(b) the lead governmental entity of a multijurisdictional task force, as designated in a
248		-	120
249		-	memorandum of understanding executed by the agencies participating in the task
250		-	121
251		-	force.
252		-	122
253		-	(14) "Multijurisdictional task force" means a law enforcement task force or other agency
254		-	123
255		-	comprised of individuals who are employed by or acting under the authority of different
256		-	124
257		-	governmental entities, including federal, state, county, or municipal governments, or any
258		-	125
259		-	combination of federal, state, county, or municipal agencies.
260		-	126
261		-	(15) "Owner" means an individual or entity, other than an interest holder, that possesses a
262		-	127
263		-	bona fide legal or equitable interest in property.
264		-	128
265		-	(16) "Pawn or secondhand business" means the same as that term is defined in Section
266		-	129
267		-	13-32a-102.
268		-	130
269		-	(17) "Peace officer" means an employee:
270		-	- 4 - 03-04 17:28 4th Sub. (Pumpkin) S.B. 252
271		-	131
272		-	(a) of an agency;
273		-	132
274		-	(b) whose duties consist primarily of the prevention and detection of violations of laws
275		-	133
276		-	of this state or a political subdivision of this state; and
277		-	134
278		-	(c) who is authorized by the agency to seize property.
279		-	135
280		-	(18)(a) "Portable communication device" means a portable electronic device designed to
281		-	136
282		-	receive and transmit a text message, email, video, voice, or similar communication.
283		-	137
284		-	(b) "Portable communication device" includes:
285		-	138
286		-	(i) a smart phone;
287		-	139
288		-	(ii) a cellular phone that is not a smart phone;
289		-	140
290		-	(iii) a tablet; and
291		-	141
292		-	(iv) a substantially similar communication device used to initiate or receive
293		-	142
294		-	communication, information, or data.
295		-	143
296		-	(c) "Portable communication device" does not include a device used for the purpose of
297		-	144
298		-	taking protected wildlife regulated under Title 23A, Wildlife Resources Act,
299		-	145
300		-	including a trail camera, unmanned aircraft, drone, or a similar device that is capable
301		-	146
302		-	of recording data.
303		-	147
304		-	[(18)] (19)(a) "Proceeds" means:
305		-	148
306		-	(i) property of any kind that is obtained directly or indirectly as a result of the
307		-	149
308		-	commission of an offense; or
309		-	150
310		-	(ii) any property acquired directly or indirectly from, produced through, realized
311		-	151
312		-	through, or caused by an act or omission regarding property under Subsection [
313		-	152
314		-	(18)(a)(i)] (19)(a)(i).
315		-	153
316		-	(b) "Proceeds" includes any property of any kind without reduction for expenses
317		-	154
318		-	incurred in the acquisition, maintenance, or production of that property, or any other
319		-	155
320		-	purpose regarding property under Subsection [(18)(a)(i)] (19)(a)(i).
321		-	156
322		-	(c) "Proceeds" is not limited to the net gain or profit realized from the offense that
323		-	157
324		-	subjects the property to seizure.
325		-	158
326		-	[(19)] (20)(a) "Property" means all property, whether real or personal, tangible or
327		-	159
328		-	intangible.
329		-	160
330		-	(b) "Property" does not include contraband.
331		-	161
332		-	[(20)] (21) "Prosecuting attorney" means:
333		-	162
334		-	(a) the attorney general and an assistant attorney general;
335		-	163
336		-	(b) a district attorney or deputy district attorney;
337		-	164
338		-	(c) a county attorney or assistant county attorney; and
339		-	- 5 - 4th Sub. (Pumpkin) S.B. 252 03-04 17:28
340		-	165
341		-	(d) an attorney authorized to commence an action on behalf of the state.
342		-	166
343		-	[(21)] (22) "Public interest use" means a:
344		-	167
345		-	(a) use by a government agency as determined by the legislative body of the agency's
346		-	168
347		-	jurisdiction; or
348		-	169
349		-	(b) donation of the property to a nonprofit charity registered with the state.
350		-	170
351		-	[(22)] (23) "Real property" means land, including any building, fixture, improvement,
352		-	171
353		-	appurtenance, structure, or other development that is affixed permanently to land.
354		-	172
355		-	[(23)] (24)(a) "Seized property" means property seized by a peace officer or agency in
356		-	173
357		-	accordance with Section 77-11a-201.
358		-	174
359		-	(b) "Seized property" includes property that the agency seeks to forfeit under Chapter
360		-	175
361		-	11b, Forfeiture of Seized Property.
362		-	176
363		-	(25) "Smart phone" means a portable electronic device that combines a cellular phone with
364		-	177
365		-	a hand-held computer, typically offering Internet access, data storage, and text, email,
366		-	178
367		-	and similar capabilities.
368		-	179
369		-	(26) "Tablet" means a portable electronic device that:
370		-	180
371		-	(a) is equipped with a mobile operating system, touchscreen display, and rechargeable
372		-	181
373		-	battery; and
374		-	182
375		-	(b) has the ability to support access to a cellular network.
376		-	183
377		-	Section 2. Section 77-11a-301 is amended to read:
378		-	184
379		-	77-11a-301 . Return of seized property to claimant -- Generally -- Computer or
380		-	185
381		-	portable communication device.
382		-	186
383		-	(1)(a) An agency with custody of seized property, or the prosecuting attorney, may
384		-	187
385		-	return the property to a claimant if the agency or the prosecuting attorney:
386		-	188
387		-	(i) determines that the agency does not need to retain or preserve the property as
388		-	189
389		-	evidence under Chapter 11c, Retention of Evidence; or
390		-	190
391		-	(ii) seeks to return the property to the claimant because the agency or prosecuting
392		-	191
393		-	attorney determines that the claimant is an innocent owner or an interest holder.
394		-	192
395		-	(b) An agency with custody of seized property, or the prosecuting attorney, may not
396		-	193
397		-	return property under this Subsection (1) if the property is subject to retention or
398		-	194
399		-	preservation under Chapter 11c, Retention of Evidence.
400		-	195
401		-	(2) An agency with custody of the seized property, or the prosecuting attorney, shall return
402		-	196
403		-	the property to a claimant if:
404		-	197
405		-	(a) the claimant posts a surety bond or cash with the court in accordance with Section
406		-	198
407		-	77-11a-302;
408		-	- 6 - 03-04 17:28 4th Sub. (Pumpkin) S.B. 252
409		-	199
410		-	(b) the court orders the return of property to the claimant for hardship purposes under
411		-	200
412		-	Section 77-11a-303;
413		-	201
414		-	(c) a claimant establishes that the claimant is an innocent owner or an interest holder
415		-	202
416		-	under Section 77-11a-304; or
417		-	203
418		-	(d) the court orders property retained as evidence to be returned to the claimant under
419		-	204
420		-	Section 77-11a-305.
421		-	205
422		-	(3)(a)(i) For a computer or portable communication device determined to be
423		-	206
424		-	contraband, a court may order the reasonable extraction and return of specifically
425		-	207
426		-	described personal digital data to the owner of the computer or portable
427		-	208
428		-	communication device.
429		-	209
430		-	[(b)] (ii) The agency shall determine a reasonable cost to extract the data described in
431		-	210
432		-	Subsection (3)(a)(i).
433		-	211
434		-	[(c)] (iii) At the time of the request to extract the data, the owner of the computer or
435		-	212
436		-	portable communication device shall pay the agency the cost to extract the data
437		-	213
438		-	described in Subsection (3)(a)(i).
439		-	214
440		-	(b)(i) For a computer or portable communication device that is not alleged to be
441		-	215
442		-	contraband, but is alleged to contain evidence in the form of digital data contained
443		-	216
444		-	on the computer or portable communication device, the owner of the computer or
445		-	217
446		-	portable communication device may request that the law enforcement agency or
447		-	218
448		-	prosecuting agency extract and return to the owner specifically described personal
449		-	219
450		-	digital data.
451		-	220
452		-	(ii)(A) The law enforcement agency or prosecuting agency may charge the owner
453		-	221
454		-	a reasonable cost for the extraction and return of the digital data described in
455		-	222
456		-	Subsection (3)(b)(i), and shall provide the owner with an estimate of the cost in
457		-	223
458		-	advance of the extraction.
459		-	224
460		-	(B) The owner of the computer or portable communication device described in
461		-	225
462		-	Subsection (3)(b)(i) shall pay the cost described in Subsection (3)(b)(ii)(A)
463		-	226
464		-	before the extraction occurs.
465		-	227
466		-	(iii) If the law enforcement agency or prosecuting agency refuses to extract and
467		-	228
468		-	return to the owner the personal digital data described in Subsection (3)(b)(i), or if
469		-	229
470		-	the owner seeks the return of the computer or portable communication device
471		-	230
472		-	itself, the owner may follow the procedures in Section 77-11a-302, 77-11a-303,
473		-	231
474		-	77-11a-304, or 77-11a-305.
475		-	232
476		-	(iv) A law enforcement agency or prosecuting agency may not condition the
477		-	- 7 - 4th Sub. (Pumpkin) S.B. 252 03-04 17:28
478		-	233
479		-	extraction and return of digital data from a computer or portable communication
480		-	234
481		-	device described in Subsection (3)(b)(i):
482		-	235
483		-	(A) on the owner providing the owner's password or otherwise unlocking,
484		-	236
485		-	accessing, or de-encrypting the computer or portable communication device; or
486		-	237
487		-	(B) on the owner consenting to a search of the digital contents of the computer or
488		-	238
489		-	portable communication device.
490		-	239
491		-	(4) If a natural resources officer for the Division of Law Enforcement seizes a vehicle, the
492		-	240
493		-	Division of Law Enforcement shall return the vehicle to a claimant in accordance with
494		-	241
495		-	Section 23A-5-201.
496		-	242
497		-	(5) If an agency is not required, or is no longer required, to retain or preserve property as
498		-	243
499		-	evidence under Chapter 11c, Retention of Evidence, and the agency seeks to return or
500		-	244
501		-	dispose of the property, the agency shall exercise due diligence in attempting to notify
502		-	245
503		-	the claimant of the property to advise the claimant that the property is to be returned.
504		-	246
505		-	(6)(a) Before an agency may return seized property to a person claiming ownership of
506		-	247
507		-	the property, the person shall establish that the person:
508		-	248
509		-	(i) is the owner of the property; and
510		-	249
511		-	(ii) may lawfully possess the property.
512		-	250
513		-	(b) The person shall establish ownership under Subsection (6)(a) by providing to the
514		-	251
515		-	agency:
516		-	252
517		-	(i) identifying proof or documentation of ownership of the property; or
518		-	253
519		-	(ii) a notarized statement if proof or documentation is not available.
520		-	254
521		-	(c) When seized property is returned to the owner, the owner shall sign a receipt listing
522		-	255
523		-	in detail the property that is returned.
524		-	256
525		-	(d) The agency shall:
526		-	257
527		-	(i) retain a copy of the receipt; and
528		-	258
529		-	(ii) provide a copy of the receipt to the owner.
530		-	259
531		-	Section 3. Section 77-11a-402 is amended to read:
532		-	260
533		-	77-11a-402 . Disposition of seized property and contraband -- Return of seized
534		-	261
535		-	property.
536		-	262
537		-	(1)(a) Except as provided in Subsection (1)(b), if a prosecuting attorney determines that
538		-	263
539		-	seized property no longer needs to be retained as evidence under Chapter 11c,
540		-	264
541		-	Retention of Evidence, the prosecuting attorney may:
542		-	265
543		-	(i) petition the court to apply the property that is money towards restitution, fines,
544		-	266
545		-	fees, or monetary judgments owed by the owner of the property;
546		-	- 8 - 03-04 17:28 4th Sub. (Pumpkin) S.B. 252
547		-	267
548		-	(ii) petition the court for an order transferring ownership of weapons to the agency
549		-	268
550		-	with custody for the agency's use and disposal in accordance with Section
551		-	269
552		-	77-11a-403 if the owner:
553		-	270
554		-	(A) is the individual who committed the offense for which the weapon was seized;
555		-	271
556		-	or
557		-	272
558		-	(B) may not lawfully possess the weapon; or
559		-	273
560		-	(iii) notify the agency with custody of the property or contraband that:
561		-	274
562		-	(A) the property may be returned to the owner in accordance with Section
563		-	275
564		-	77-11a-301 if the owner may lawfully possess the property; or
565		-	276
566		-	(B) the contraband may be disposed of or destroyed.
567		-	277
568		-	(b) If a prosecuting attorney determines that a firearm seized from an individual as a
569		-	278
570		-	result of an offense committed under Subsection 76-10-529(2)(a)(i) no longer needs
571		-	279
572		-	to be retained for court proceedings, the prosecuting attorney shall notify the agency
573		-	280
574		-	with custody of the firearm that the property shall be returned to the individual if the
575		-	281
576		-	individual may lawfully possess the firearm.
577		-	282
578		-	(c) If the seized property is a computer or portable communication device that is not
579		-	283
580		-	alleged to contain contraband, the notification described in Subsection (1)(a)(iii) shall
581		-	284
582		-	occur within thirty days after the day on which the prosecuting attorney determines
583		-	285
584		-	that the seized property no longer needs to be retained as evidence.
585		-	286
586		-	(2) Before returning a firearm to an individual, the agency returning the firearm shall
587		-	287
588		-	confirm, through the Bureau of Criminal Identification, that the individual is eligible to
589		-	288
590		-	lawfully possess and receive firearms.
591		-	289
592		-	(3)(a) Except as provided in Subsection (3)(b), if the agency is unable to locate the
593		-	290
594		-	owner of the property or the owner is not entitled to lawfully possess the property,
595		-	291
596		-	the agency may:
597		-	292
598		-	(i) apply the property to a public interest use;
599		-	293
600		-	(ii) sell the property at public auction and apply the proceeds of the sale to a public
601		-	294
602		-	interest use; or
603		-	295
604		-	(iii) destroy the property if the property is unfit for a public interest use or for sale.
605		-	296
606		-	(b) If the property described in Subsection (3)(a) is a firearm, the agency shall dispose of
607		-	297
608		-	the firearm in accordance with Section 77-11a-403.
609		-	298
610		-	(4) Before applying the property or the proceeds from the sale of the property to a public
611		-	299
612		-	interest use, the agency shall obtain from the legislative body of the agency's jurisdiction:
613		-	300
614		-	(a) permission to apply the property or the proceeds to public interest use; and
615		-	- 9 - 4th Sub. (Pumpkin) S.B. 252 03-04 17:28
616		-	301
617		-	(b) the designation and approval of the public interest use of the property or the proceeds.
618		-	302
619		-	(5) If a peace officer seizes property that at the time of seizure is held by a pawn or
620		-	303
621		-	secondhand business in the course of the pawn or secondhand business's business, the
622		-	304
623		-	provisions of Section 13-32a-116 shall apply to the disposition of the property.
624		-	305
625		-	Section 4. Section 77-11c-101 is amended to read:
626		-	306
627		-	77-11c-101 . Definitions.
628		-	307
629		-	As used in this chapter:
630		-	308
	652	+	319
631	653		(1) "Acquitted" means the same as that term is defined in Section 77-11b-101.
632		-	~~309~~
	654	+	320
633	655		(2) "Adjudicated" means that:
634		-	~~310~~
	656	+	321
635	657		(a)(i) a judgment of conviction by plea or verdict of an offense has been entered by a
636		-	~~311~~
	658	+	322
637	659		court; and
638		-	~~312~~
	660	+	323
639	661		(ii) a sentence has been imposed by the court; or
640		-	~~313~~
	662	+	324
641	663		(b) a judgment has been entered for an adjudication of an offense by a juvenile court
642		-	~~314~~
	664	+	325
643	665		under Section 80-6-701.
644		-	~~315~~
	666	+	326
645	667		(3) "Adjudication" means:
646		-	~~316~~
	668	+	327
647	669		(a) a judgment of conviction by plea or verdict of an offense; or
648		-	~~317~~
	670	+	328
649	671		(b) an adjudication for an offense by a juvenile court under Section 80-6-701.
650		-	~~318~~
	672	+	329
651	673		(4) "Agency" means the same as that term is defined in Section 77-11a-101.
652		-	~~319~~
	674	+	330
653	675		(5) "Appellate court" means the Utah Court of Appeals, the Utah Supreme Court, or the
654		-	~~320~~
	676	+	331
655	677		United States Supreme Court.
656		-	~~321~~
	678	+	332
657	679		(6)(a) "Biological evidence" means an item that contains blood, semen, hair, saliva,
658		-	~~322~~
	680	+	333
659	681		epithelial cells, latent fingerprint evidence that may contain biological material
660		-	~~323~~
	682	+	334
661	683		suitable for DNA testing, or other identifiable human biological material that:
662		-	324
	684	+	- 10 - 02-27 14:56 3rd Sub. (Ivory) S.B. 252
	685	+	335
663	686		(i) is collected as part of an investigation or prosecution of a violent felony offense;
664		-	~~325~~
	687	+	336
665	688		and
666		-	~~326~~
	689	+	337
667	690		(ii) may reasonably be used to incriminate or exculpate a person for the violent
668		-	~~327~~
	691	+	338
669	692		felony offense.
670		-	~~328~~
	693	+	339
671	694		(b) "Biological evidence" includes:
672		-	~~329~~
	695	+	340
673	696		(i) material that is catalogued separately, including:
674		-	~~330~~
	697	+	341
675	698		(A) on a slide or swab; or
676		-	~~331~~
	699	+	342
677	700		(B) inside a test tube, if the evidentiary sample that previously was inside the test
678		-	~~332~~
	701	+	343
679	702		tube has been consumed by testing;
680		-	~~333~~
	703	+	344
681	704		(ii) material that is present on other evidence, including clothing, a ligature, bedding,
682		-	~~334~~
	705	+	345
683	706		a drinking cup, a cigarette, or a weapon, from which a DNA profile may be
684		-	- 10 - 03-04 17:28 4th Sub. (Pumpkin) S.B. 252
685		-	335
	707	+	346
686	708		obtained;
687		-	~~336~~
	709	+	347
688	710		(iii) the contents of a sexual assault kit; and
689		-	~~337~~
	711	+	348
690	712		(iv) for a violent felony offense, material described in this Subsection (6) that is in
691		-	~~338~~
	713	+	349
692	714		the custody of an evidence collecting or retaining entity on May 4, 2022.
693		-	~~339~~
	715	+	350
694	716		(7) "Claimant" means the same as that term is defined in Section 77-11a-101.
695		-	~~340~~
	717	+	351
696	718		(8) "Computer" means the same as that term is defined in Section 77-11a-101.
697		-	~~341~~
	719	+	352
698	720		(9) "Continuous chain of custody" means:
699		-	~~342~~
	721	+	353
700	722		(a) for a law enforcement agency or a court, that legal standards regarding a continuous
701		-	~~343~~
	723	+	354
702	724		chain of custody are maintained; and
703		-	~~344~~
	725	+	355
704	726		(b) for an entity that is not a law enforcement agency or a court, that the entity maintains
705		-	~~345~~
	727	+	356
706	728		a record in accordance with legal standards required of the entity.
707		-	~~346~~
	729	+	357
708	730		(10) "Contraband" means the same as that term is defined in Section 77-11a-101.
709		-	~~347~~
	731	+	358
710	732		(11) "Controlled substance" means the same as that term is defined in Section 58-37-2.
711		-	~~348~~
	733	+	359
712	734		(12) "Court" means a municipal, county, or state court.
713		-	~~349~~
	735	+	360
714	736		(13) "DNA" means deoxyribonucleic acid.
715		-	~~350~~
	737	+	361
716	738		(14) "DNA profile" means a unique identifier of an individual derived from DNA.
717		-	~~351~~
	739	+	362
718	740		(15) "Drug paraphernalia" means the same as that term is defined in Section 58-37a-3.
719		-	~~352~~
	741	+	363
720	742		(16) "Evidence" means property, contraband, or an item or substance that:
721		-	~~353~~
	743	+	364
722	744		(a) is seized or collected as part of an investigation or prosecution of an offense; and
723		-	~~354~~
	745	+	365
724	746		(b) may reasonably be used to incriminate or exculpate an individual for an offense.
725		-	~~355~~
	747	+	366
726	748		(17)(a) "Evidence collecting or retaining entity" means an entity within the state that
727		-	~~356~~
	749	+	367
728	750		collects, stores, or retrieves biological evidence.
729		-	~~357~~
	751	+	368
730	752		(b) "Evidence collecting or retaining entity" includes:
731		-	358
	753	+	- 11 - 3rd Sub. (Ivory) S.B. 252 02-27 14:56
	754	+	369
732	755		(i) a medical or forensic entity;
733		-	~~359~~
	756	+	370
734	757		(ii) a law enforcement agency;
735		-	~~360~~
	758	+	371
736	759		(iii) a court; and
737		-	~~361~~
	760	+	372
738	761		(iv) an official, employee, or agent of an entity or agency described in this Subsection
739		-	~~362~~
	762	+	373
740	763		(17).
741		-	~~363~~
	764	+	374
742	765		[(v)] (c) "Evidence collecting or retaining entity" does not include a collecting facility
743		-	~~364~~
	766	+	375
744	767		defined in Section 53-10-902.
745		-	~~365~~
	768	+	376
746	769		(18) "Exhibit" means property, contraband, or an item or substance that is admitted into
747		-	~~366~~
	770	+	377
748	771		evidence for a court proceeding.
749		-	~~367~~
	772	+	378
750	773		(19) "In custody" means an individual who:
751		-	~~368~~
	774	+	379
752	775		(a) is incarcerated, civilly committed, on parole, or on probation; or
753		-	- 11 - 4th Sub. (Pumpkin) S.B. 252 03-04 17:28
754		-	369
	776	+	380
755	777		(b) is required to register under Title 77, Chapter 41, Sex, Kidnap, and Child Abuse
756		-	~~370~~
	778	+	381
757	779		Offender Registry.
758		-	~~371~~
	780	+	382
759	781		(20) "Law enforcement agency" means the same as that term is defined in Section
760		-	~~372~~
	782	+	383
761	783		77-11a-101.
762		-	~~373~~
	784	+	384
763	785		(21) "Medical or forensic entity" means a private or public hospital, medical facility, or
764		-	~~374~~
	786	+	385
765	787		other entity that secures biological evidence or conducts forensic examinations related to
766		-	~~375~~
	788	+	386
767	789		criminal investigations.
768		-	~~376~~
	790	+	387
769	791		(22) "Physical evidence" includes evidence that:
770		-	~~377~~
	792	+	388
771	793		(a) is related to:
772		-	~~378~~
	794	+	389
773	795		(i) an investigation;
774		-	~~379~~
	796	+	390
775	797		(ii) an arrest; or
776		-	~~380~~
	798	+	391
777	799		(iii) a prosecution that resulted in a judgment of conviction; and
778		-	~~381~~
	800	+	392
779	801		(b) is in the actual or constructive possession of a law enforcement agency or a court or
780		-	~~382~~
	802	+	393
781	803		an agent of a law enforcement agency or a court.
782		-	~~383~~
	804	+	394
783	805		(23) "Portable communication device" means the same as that term is defined in Section
784		-	~~384~~
	806	+	395
785	807		77-11a-101.
786		-	~~385~~
	808	+	396
787	809		[(23)] (24) "Property" means the same as that term is defined in Section 77-11a-101.
788		-	~~386~~
	810	+	397
789	811		[(24)] (25) "Prosecuting attorney" means the same as that term is defined in Section
790		-	~~387~~
	812	+	398
791	813		77-11a-101.
792		-	~~388~~
	814	+	399
793	815		[(25)] (26) "Sexual assault kit" means the same as that term is defined in Section 53-10-902.
794		-	~~389~~
	816	+	400
795	817		[(26)] (27) "Victim" means the same as that term is defined in Section 53-10-902.
796		-	~~390~~
	818	+	401
797	819		[(27)] (28) "Violent felony offense" means the same as the term "violent felony" is defined
798		-	~~391~~
	820	+	402
799	821		in Section 76-3-203.5.
800		-	392
	822	+	- 12 - 02-27 14:56 3rd Sub. (Ivory) S.B. 252
	823	+	403
801	824		[(28)] (29) "Wildlife" means the same as that term is defined in Section 23A-1-101.
802		-	~~393~~
	825	+	404
803	826		Section 5. Section 77-11c-202 is amended to read:
804		-	~~394~~
	827	+	405
805	828		77-11c-202 . Requirements for not retaining evidence of a misdemeanor offense --
806		-	~~395~~
	829	+	406
807	830		Preservation of sufficient evidence.
808		-	~~396~~
	831	+	407
809	832		(1) An agency is not required to retain evidence of a misdemeanor offense under Section
810		-	~~397~~
	833	+	408
811	834		77-11c-201 if:
812		-	~~398~~
	835	+	409
813	836		(a)(i) the agency determines that:
814		-	~~399~~
	837	+	410
815	838		(A) the size, bulk, or physical character of the evidence renders retention
816		-	~~400~~
	839	+	411
817	840		impracticable; or
818		-	~~401~~
	841	+	412
819	842		(B) the evidence poses a security or safety problem for the agency;
820		-	~~402~~
	843	+	413
821	844		(ii) the agency preserves sufficient evidence of the property, contraband, item, or
822		-	- 12 - 03-04 17:28 4th Sub. (Pumpkin) S.B. 252
823		-	403
	845	+	414
824	846		substance for use as evidence in a prosecution of the offense;
825		-	~~404~~
	847	+	415
826	848		(iii) the agency sends a written request under Subsection 77-11c-203(1) to the
827		-	~~405~~
	849	+	416
828	850		prosecuting attorney for permission to return or dispose of the evidence; and
829		-	~~406~~
	851	+	417
830	852		(iv) the prosecuting attorney grants the agency's written request in accordance with
831		-	~~407~~
	853	+	418
832	854		Section 77-11c-203;
833		-	~~408~~
	855	+	419
834	856		(b) a court orders the agency to return evidence that is property to a claimant under
835		-	~~409~~
	857	+	420
836	858		Section 77-11a-305; or
837		-	~~410~~
	859	+	421
838	860		(c) the evidence is wildlife or parts of wildlife.
839		-	~~411~~
	861	+	422
840	862		(2) Notwithstanding Subsection (1), the agency may not dispose of evidence of a
841		-	~~412~~
	863	+	423
842	864		misdemeanor offense that is a sexual assault kit before the day on which the time period
843		-	~~413~~
	865	+	424
844	866		described in Section 77-11c-201 expires if:
845		-	~~414~~
	867	+	425
846	868		(a) the agency sends a notice to the victim as described in Section 53-10-905; and
847		-	~~415~~
	869	+	426
848	870		(b) the victim submits a written request for retention of the evidence within the 180-day
849		-	~~416~~
	871	+	427
850	872		period described in Section 53-10-905.
851		-	~~417~~
	873	+	428
852	874		(3)(a) Subsection (1) does not require an agency to return or dispose of evidence of a
853		-	~~418~~
	875	+	429
854	876		misdemeanor offense.
855		-	~~419~~
	877	+	430
856	878		(b) Subsection (1)(a) does not apply when the return or disposal of evidence of a
857		-	~~420~~
	879	+	431
858	880		misdemeanor offense is in compliance with a memorandum of understanding
859		-	~~421~~
	881	+	432
860	882		between the agency and the prosecuting attorney.
861		-	~~422~~
	883	+	433
862	884		(4) If the evidence described in Subsection (1) is a controlled substance, an agency shall
863		-	~~423~~
	885	+	434
864	886		preserve sufficient evidence under Subsection (1)(a)(ii) of the controlled substance by:
865		-	~~424~~
	887	+	435
866	888		(a) collecting and preserving a sample of the controlled substance for independent
867		-	~~425~~
	889	+	436
868	890		testing and use as evidence;
869		-	426
	891	+	- 13 - 3rd Sub. (Ivory) S.B. 252 02-27 14:56
	892	+	437
870	893		(b) taking a photographic or video record of the controlled substance with identifying
871		-	~~427~~
	894	+	438
872	895		case numbers;
873		-	~~428~~
	896	+	439
874	897		(c) maintaining a written report of a chemical analysis of the controlled substance if a
875		-	~~429~~
	898	+	440
876	899		chemical analysis was performed by the agency; and
877		-	~~430~~
	900	+	441
878	901		(d) if the controlled substance exceeds 10 pounds, retain at least one pound of the
879		-	~~431~~
	902	+	442
880	903		controlled substance that is randomly selected from the controlled substance.
881		-	~~432~~
	904	+	443
882	905		(5) If the evidence described in Subsection (1) is drug paraphernalia, an agency shall
883		-	~~433~~
	906	+	444
884	907		preserve sufficient evidence under Subsection (1)(a)(ii) of the drug paraphernalia by:
885		-	~~434~~
	908	+	445
886	909		(a) collecting and preserving a sample of the controlled substance from the drug
887		-	~~435~~
	910	+	446
888	911		paraphernalia for independent testing and use as evidence;
889		-	~~436~~
	912	+	447
890	913		(b) maintaining a written report of a chemical analysis of the drug paraphernalia if a
891		-	- 13 - 4th Sub. (Pumpkin) S.B. 252 03-04 17:28
892		-	437
	914	+	448
893	915		chemical analysis was performed by the agency; and
894		-	~~438~~
	916	+	449
895	917		(c) taking a photographic or video record of the drug paraphernalia with identifying case
896		-	~~439~~
	918	+	450
897	919		numbers.
898		-	~~440~~
	920	+	451
899	921		(6) If the evidence described in Subsection (1) is a computer or portable communication
900		-	~~441~~
	922	+	452
901	923		device, the agency shall preserve sufficient evidence under Subsection (1)(a)(ii) of the
902		-	~~442~~
	924	+	453
903	925		computer or portable communication device by:
904		-	~~443~~
	926	+	454
905	927		(a) extracting all data from the computer or portable communication device that would
906		-	~~444~~
	928	+	455
907	929		be evidence in a prosecution of an individual for the offense; and
908		-	~~445~~
	930	+	456
909	931		(b) taking a photographic or video record of the computer or portable communication
910		-	~~446~~
	932	+	457
911	933		device with identifying case numbers.
912		-	~~447~~
	934	+	458
913	935		(7) For any other type of evidence, the agency shall preserve sufficient evidence under
914		-	~~448~~
	936	+	459
915	937		Subsection (1)(a)(ii) of the property, contraband, item, or substance by taking a
916		-	~~449~~
	938	+	460
917	939		photographic or video record of the property, contraband, item, or substance with
918		-	~~450~~
	940	+	461
919	941		identifying case numbers.
920		-	~~451~~
	942	+	462
921	943		Section 6. Section 77-11c-302 is amended to read:
922		-	~~452~~
	944	+	463
923	945		77-11c-302 . Requirements for not retaining evidence of felony offense --
924		-	~~453~~
	946	+	464
925	947		Preservation of sufficient evidence.
926		-	~~454~~
	948	+	465
927	949		(1) An agency is not required to retain evidence of a felony offense under Section
928		-	~~455~~
	950	+	466
929	951		77-11c-301 if:
930		-	~~456~~
	952	+	467
931	953		(a)(i) the agency determines that:
932		-	~~457~~
	954	+	468
933	955		(A) the size, bulk, or physical character of the evidence renders retention
934		-	~~458~~
	956	+	469
935	957		impracticable or the evidence poses a security or safety problem for the
936		-	~~459~~
	958	+	470
937	959		agency; and
938		-	460
	960	+	- 14 - 02-27 14:56 3rd Sub. (Ivory) S.B. 252
	961	+	471
939	962		(B) the evidence no longer has any significant evidentiary value;
940		-	~~461~~
	963	+	472
941	964		(ii) the agency preserves sufficient evidence from the property, contraband, item, or
942		-	~~462~~
	965	+	473
943	966		substance for use as evidence in a prosecution of the offense; and
944		-	~~463~~
	967	+	474
945	968		(iii) a prosecuting attorney or a court authorizes the agency to return or dispose of the
946		-	~~464~~
	969	+	475
947	970		evidence as described in Subsection 77-11c-303;
948		-	~~465~~
	971	+	476
949	972		(b) a court orders the agency to return evidence that is property to a claimant under
950		-	~~466~~
	973	+	477
951	974		Section 77-11a-305; or
952		-	~~467~~
	975	+	478
953	976		(c) the evidence is wildlife or parts of wildlife.
954		-	~~468~~
	977	+	479
955	978		(2) Notwithstanding Subsection (1), the agency may not dispose of evidence of a felony
956		-	~~469~~
	979	+	480
957	980		offense that is a sexual assault kit before the day on which the time period described in
958		-	~~470~~
	981	+	481
959	982		Section 77-11c-301 expires if:
960		-	- 14 - 03-04 17:28 4th Sub. (Pumpkin) S.B. 252
961		-	471
	983	+	482
962	984		(a) the agency sends a notice to the victim in accordance with Section 53-10-905; and
963		-	~~472~~
	985	+	483
964	986		(b) the victim submits a written request for retention of the evidence within the 180-day
965		-	~~473~~
	987	+	484
966	988		period described in Section 53-10-905.
967		-	~~474~~
	989	+	485
968	990		(3) Subsection (1) does not require an agency to return or dispose of evidence of a felony
969		-	~~475~~
	991	+	486
970	992		offense.
971		-	~~476~~
	993	+	487
972	994		(4) Subsection (1) does not apply to biological evidence of a violent felony offense because
973		-	~~477~~
	995	+	488
974	996		an agency is required to retain biological evidence of a violent felony offense as
975		-	~~478~~
	997	+	489
976	998		described in Part 4, Preservation of Biological Evidence for Violent Felony Offenses.
977		-	~~479~~
	999	+	490
978	1000		(5) If the evidence described in Subsection (1) is a controlled substance, an agency shall
979		-	~~480~~
	1001	+	491
980	1002		preserve sufficient evidence under Subsection (1)(a)(ii) of the controlled substance by:
981		-	~~481~~
	1003	+	492
982	1004		(a) collecting and preserving a sample of the controlled substance for independent
983		-	~~482~~
	1005	+	493
984	1006		testing and use as evidence;
985		-	~~483~~
	1007	+	494
986	1008		(b) taking a photographic or video record of the controlled substance with identifying
987		-	~~484~~
	1009	+	495
988	1010		case numbers;
989		-	~~485~~
	1011	+	496
990	1012		(c) maintaining a written report of a chemical analysis of the controlled substance if a
991		-	~~486~~
	1013	+	497
992	1014		chemical analysis was performed by the agency;
993		-	~~487~~
	1015	+	498
994	1016		(d) if the controlled substance exceeds 10 pounds, retaining at least one pound of the
995		-	~~488~~
	1017	+	499
996	1018		controlled substance that is randomly selected from the controlled substance; and
997		-	~~489~~
	1019	+	500
998	1020		(e) for a violent felony offense, collecting and preserving biological evidence from the
999		-	~~490~~
	1021	+	501
1000	1022		controlled substance as described in Section 77-11c-401.
1001		-	~~491~~
	1023	+	502
1002	1024		(6) If the evidence described in Subsection (1) is drug paraphernalia, an agency shall
1003		-	~~492~~
	1025	+	503
1004	1026		preserve sufficient evidence under Subsection (1)(a)(ii) of the drug paraphernalia by:
1005		-	~~493~~
	1027	+	504
1006	1028		(a) collecting and preserving a sample of the controlled substance from the drug
1007		-	494
	1029	+	- 15 - 3rd Sub. (Ivory) S.B. 252 02-27 14:56
	1030	+	505
1008	1031		paraphernalia for independent testing and use as evidence;
1009		-	~~495~~
	1032	+	506
1010	1033		(b) maintaining a written report of a chemical analysis of the drug paraphernalia if a
1011		-	~~496~~
	1034	+	507
1012	1035		chemical analysis was performed by the agency;
1013		-	~~497~~
	1036	+	508
1014	1037		(c) taking a photographic or video record of the drug paraphernalia with identifying case
1015		-	~~498~~
	1038	+	509
1016	1039		numbers; and
1017		-	~~499~~
	1040	+	510
1018	1041		(d) for a violent felony offense, collecting and preserving biological evidence from the
1019		-	~~500~~
	1042	+	511
1020	1043		drug paraphernalia as described in Section 77-11c-401.
1021		-	~~501~~
	1044	+	512
1022	1045		(7) If the evidence described in Subsection (1) is a computer or portable communication
1023		-	~~502~~
	1046	+	513
1024	1047		device, the agency shall preserve sufficient evidence under Subsection (1)(a)(ii) of the
1025		-	~~503~~
	1048	+	514
1026	1049		computer or portable communication device by:
1027		-	~~504~~
	1050	+	515
1028	1051		(a) extracting all data from the computer or portable communication device that would
1029		-	- 15 - 4th Sub. (Pumpkin) S.B. 252 03-04 17:28
1030		-	505
	1052	+	516
1031	1053		be evidence in a prosecution of an individual for the offense;
1032		-	~~506~~
	1054	+	517
1033	1055		(b) taking a photographic or video record of the computer or portable communication
1034		-	~~507~~
	1056	+	518
1035	1057		device with identifying case numbers; and
1036		-	~~508~~
	1058	+	519
1037	1059		(c) for a violent felony offense, collecting and preserving biological evidence from the
1038		-	~~509~~
	1060	+	520
1039	1061		computer or portable communication device as described in Section 77-11c-401.
1040		-	~~510~~
	1062	+	521
1041	1063		(8) For any other type of evidence, the agency shall preserve sufficient evidence under
1042		-	~~511~~
	1064	+	522
1043	1065		Subsection (1)(a)(ii) of the property, contraband, item, or substance by:
1044		-	~~512~~
	1066	+	523
1045	1067		(a) taking a photographic or video record of the property, contraband, item, or substance
1046		-	~~513~~
	1068	+	524
1047	1069		with identifying case numbers; and
1048		-	~~514~~
	1070	+	525
1049	1071		(b) for a violent felony offense, collecting and preserving biological evidence as
1050		-	~~515~~
	1072	+	526
1051	1073		described in Section 77-11c-401.
1052		-	~~516~~
	1074	+	527
1053	1075		Section 7. Effective Date.
1054		-	~~517~~
	1076	+	528
1055	1077		This bill takes effect on May 7, 2025.
1056	1078		- 16 -