Utah Code 77-11c-303. Procedure for authorizing the return or disposal of evidence of a felony offense
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(1) If an agency determines that the agency is not required to retain evidence of a felony offense under Subsection 77-11c-302 (1)(a)(i), and the agency seeks to return or dispose of the evidence, the agency shall send a written request to the prosecuting attorney that:
Terms Used In Utah Code 77-11c-303
- Agency: means the same as that term is defined in Section
77-11a-101 . See Utah Code 77-11c-101 - Biological evidence: includes :(6)(b)(i) material that is catalogued separately, including:(6)(b)(i)(A) on a slide or swab; or(6)(b)(i)(B) inside a test tube, if the evidentiary sample that previously was inside the test tube has been consumed by testing;(6)(b)(ii) material that is present on other evidence, including clothing, a ligature, bedding, a drinking cup, a cigarette, or a weapon, from which a DNA profile may be obtained;(6)(b)(iii) the contents of a sexual assault kit; and(6)(b)(iv) for a violent felony offense, material described in this Subsection (6) that is in the custody of an evidence collecting or retaining entity on May 4, 2022. See Utah Code 77-11c-101
- Contraband: means the same as that term is defined in Section
77-11a-101 . See Utah Code 77-11c-101 - Conviction: A judgement of guilt against a criminal defendant.
- Court: means a municipal, county, or state court. See Utah Code 77-11c-101
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Evidence: means property, contraband, or an item or substance that:(16)(a) is seized or collected as part of an investigation or prosecution of an offense; and(16)(b) may reasonably be used to incriminate or exculpate an individual for an offense. See Utah Code 77-11c-101
- In custody: means an individual who:(19)(a) is incarcerated, civilly committed, on parole, or on probation; or(19)(b) is required to register under Title 77, Chapter 41, Sex, Kidnap, and Child Abuse Offender Registry. See Utah Code 77-11c-101
- Person: means :(24)(a) an individual;(24)(b) an association;(24)(c) an institution;(24)(d) a corporation;(24)(e) a company;(24)(f) a trust;(24)(g) a limited liability company;(24)(h) a partnership;(24)(i) a political subdivision;(24)(j) a government office, department, division, bureau, or other body of government; and(24)(k) any other organization or entity. See Utah Code 68-3-12.5
- Physical evidence: includes evidence that:(22)(a) is related to:(22)(a)(i) an investigation;(22)(a)(ii) an arrest; or(22)(a)(iii) a prosecution that resulted in a judgment of conviction; and(22)(b) is in the actual or constructive possession of a law enforcement agency or a court or an agent of a law enforcement agency or a court. See Utah Code 77-11c-101
- Property: means the same as that term is defined in Section
77-11a-101 . See Utah Code 77-11c-101 - Prosecuting attorney: means the same as that term is defined in Section
77-11a-101 . See Utah Code 77-11c-101 - Public defender: Represent defendants who can't afford an attorney in criminal matters.
(1)(a) identifies the evidence;
(1)(b) explains the reason that the agency is not required to retain the evidence under Subsection 77-11c-302 (1)(a)(i); and
(1)(c) explains the steps that the agency will take, or has taken, to preserve sufficient evidence from the property, contraband, item, or substance for use as evidence in a prosecution of the offense.
(2) If a prosecuting attorney receives a written request described in Subsection (1), the prosecuting attorney shall:
(2)(a) provide a notice of receipt to the agency within 15 days after the day on which the prosecuting attorney receives the written request; and
(2)(b) send a written notification to the agency of the prosecuting attorney’s decision to deny or grant an agency’s written request within 60 days after the day on which the prosecuting attorney receives the agency’s written request.
(3) If an agency sends a written request described in Subsection (1) to the prosecuting attorney, the agency shall also send the written request by certified mail, return receipt requested, or a delivery service that provides proof of delivery, to:
(3)(a) any individual who remains in custody based on a conviction related to the evidence;
(3)(b) the private attorney or public defender of record for each individual described in Subsection (3)(a);
(3)(c) the entity that employed the private attorney or public defender described in Subsection (3)(b) at the time of the criminal conviction;
(3)(d) if applicable, the prosecuting agency responsible for the prosecution of each individual described in Subsection (3)(a); and
(3)(e) the Utah attorney general.
(4)
(4)(a) If a person described in Subsection (3) receives a written request from an agency seeking to return or dispose of evidence of the felony offense, the person may object to the agency’s written request to return or dispose of evidence of the felony offense.
(4)(b) To object to an agency’s request under Subsection (4)(a), the person must send a written objection to the agency and prosecuting attorney within 60 days after the day on which the person receives the agency’s written request.
(5) If the prosecuting attorney receives a written request under Subsection (2) and determines that the agency needs to retain the evidence for a prosecution of the felony offense, the prosecuting attorney shall send a written notification to the agency that explains the reason for which the prosecuting attorney is denying the agency’s request.
(6) The agency may petition the court for an order granting the agency’s request to return or dispose of the evidence of a felony offense if:
(6)(a) the prosecuting attorney denies the agency’s written request or does not respond to an agency’s written request within the time periods described in Subsection (2); or
(6)(b) a person described in Subsection (3) objects to the agency’s written request.
(7) The court shall hold a hearing on the agency’s petition to determine whether an agency’s request to return or dispose of evidence should be granted.
(8) After a hearing on the agency’s petition, the court shall grant an agency’s request to return or dispose of evidence of a felony offense if the court determines, by a preponderance of the evidence, that:
(8)(a) the size, bulk, or physical character of the evidence renders retention impracticable or the evidence poses a security or safety problem for the agency;
(8)(b) the evidence no longer has any significant evidentiary value; and
(8)(c) the agency will take, or has taken, steps to preserve sufficient evidence from the property, contraband, item, or substance for use as evidence in a prosecution of the offense.
(9) If the court determines that a prosecuting attorney, or a person described in Subsection (3), objects to an agency’s request to dispose or return of physical evidence of a felony offense because the physical evidence contains biological evidence that would be evidence in a prosecution of the offense, the court may require the agency to collect and preserve biological evidence from the physical evidence before the agency returns or disposes of the evidence.
(10) If a prosecuting attorney denies the agency’s written request or a person described in Subsection (3) objects to the agency’s written request, the agency shall retain the evidence of a felony offense as described in Section 77-11c-301 until:
(10)(a) the agency obtains a court order granting the agency’s request to return or dispose of the evidence as described in Subsection (8); or
(10)(b) the time periods described in Section 77-11c-301 have expired.