Utah Code 77-11c-202. Requirements for not retaining evidence — Preservation of sufficient evidence

77-11c-202. Requirements for not retaining evidence — Preservation of sufficient evidence.

(1)

An agency is not required to retain evidence of a misdemeanor offense under Section 77-11c-201 if:

Terms Used In Utah Code 77-11c-202

Agency: means the same as that term is defined in Section 77-11a-101. See Utah Code 77-11c-101
Biological evidence: includes :

(i)

material that is catalogued separately, including:

(A)	on a slide or swab; or

(B)	inside a test tube, if the evidentiary sample that previously was inside the test tube has been consumed by testing;

(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;

(iii)

the contents of a sexual assault examination kit; and

(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

Claimant: means the same as that term is defined in Section 77-11a-101. See Utah Code 77-11c-101

Computer: means the same as that term is defined in Section 77-11a-101. 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

Controlled substance: means the same as that term is defined in Section 58-37-2. See Utah Code 77-11c-101

Court: means a municipal, county, or state court. See Utah Code 77-11c-101

Drug paraphernalia: means the same as that term is defined in Section 58-37a-3. 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:

(a)	is seized or collected as part of an investigation or prosecution of an offense; and

(b)

may reasonably be used to incriminate or exculpate an individual for an offense. 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

Wildlife: means the same as that term is defined in Section 23-13-2. See Utah Code 77-11c-101

(a)

(i)

the agency determines that:

(A)	the size, bulk, or physical character of the evidence renders retention impracticable; or

(B)	the evidence poses a security or safety problem for the agency;

(ii)	the agency preserves sufficient evidence of the property, contraband, item, or substance for use as evidence in a prosecution of the offense in accordance with this section;

(iii)

the agency sends a written request under Subsection 77-11c-203(1) to the prosecuting attorney for permission to release or dispose of the evidence; and

(iv)	the prosecuting attorney grants the agency’s written request in accordance with Section 77-11c-203;

(b)	a court orders the agency to return evidence that is property to a claimant under Section 77-11a-305; or

(c)	the evidence is wildlife or parts of wildlife.

(2)

(a)	Subsection (1) does not require an agency to return or dispose of evidence of a misdemeanor offense.

(b)	Subsection (1)(a) does not apply when the release or disposal of evidence of a misdemeanor offense is in compliance with a memorandum of understanding between the agency and the prosecuting attorney.

(3)

If evidence is a controlled substance, an agency shall preserve sufficient evidence under Subsection (1)(a)(ii) of the controlled substance by:

(a)	collecting and preserving a sample of the controlled substance and a sample of biological evidence from the controlled substance for independent testing and use as evidence;

(b)	taking a photographic or video record of the controlled substance with identifying case numbers;

(c)	maintaining a written report of a chemical analysis of the controlled substance if a chemical analysis was performed by the agency; and

(d)	if the controlled substance exceeds 10 pounds, retain at least one pound of the controlled substance that is randomly selected from the controlled substance.

(4)

If evidence is drug paraphernalia, an agency shall preserve sufficient evidence under Subsection (1)(a)(ii) of the drug paraphernalia by:

(a)	collecting and preserving a sample of the controlled substance from the drug paraphernalia for independent testing and use as evidence;

(b)	maintaining a written report of a chemical analysis of the drug paraphernalia if a chemical analysis was performed by the agency; and

(c)	taking a photographic or video record of the drug paraphernalia with identifying case numbers.

(5)

If evidence is a computer, the agency shall preserve sufficient evidence under Subsection (1)(a)(ii) of the computer by:

(a)	extracting all data from the computer that would be evidence in a prosecution of an individual for the offense;

(b)	collecting a sample of biological evidence from the computer for independent testing and use as evidence; and

(c)	taking a photographic or video record of the computer with identifying case numbers.

(6)

For any other type of evidence, the agency shall preserve sufficient evidence under Subsection (1)(a)(ii) of the property, contraband, item, or substance by:

(a)	collecting and preserving a sample of biological evidence from the property, contraband, item, or substance for independent testing and use as evidence; and

(b)	taking a photographic or video record of the property, contraband, item, or substance with identifying case numbers.

Enacted by Chapter 448, 2023 General Session

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