77-11c-401. Preservation of biological evidence — Procedures — Inventory request.
(1)
Except as provided in Section 77-11c-402, an evidence collecting or retaining entity shall preserve biological evidence of a violent felony offense in accordance with this part.
Terms Used In Utah Code 77-11c-401
Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
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
Continuous chain of custody: means :
(a)
for a law enforcement agency or a court, that legal standards regarding a continuous chain of custody are maintained; and
(b)
for an entity that is not a law enforcement agency or a court, that the entity maintains a record in accordance with legal standards required of the entity. See Utah Code 77-11c-101
Conviction: A judgement of guilt against a criminal defendant.
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
Evidence collecting or retaining entity: includes :
(i)
a medical or forensic entity;
(ii)
a law enforcement agency;
(iii)
a court; and
(iv)
an official, employee, or agent of an entity or agency described in this Subsection (17). See Utah Code 77-11c-101
In custody: means an individual who:
(a)
is incarcerated, civilly committed, on parole, or on probation; or
a prosecution that resulted in a judgment of conviction; and
(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
Public defender: Represent defendants who can't afford an attorney in criminal matters.
State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
Statute of limitations: A law that sets the time within which parties must take action to enforce their rights.
If the evidence collecting or retaining entity cannot locate biological evidence requested under Subsection (3)(a), the custodian for the entity shall provide a sworn affidavit to the defendant that:
(i)
describes the efforts taken to locate the biological evidence; and
(ii)
affirms that the biological evidence could not be located.
(4)
The evidence collecting or retaining entity may dispose of biological evidence before the day on which the period described in Subsection (2)(a) expires if:
(a)
no other provision of federal or state law requires the evidence collecting or retaining entity to preserve the biological evidence;
(b)
the evidence collecting or retaining entity sends notice in accordance with Subsection (5); and
(c)
an individual notified under Subsection (5)(a) does not within 180 days after the day on which the evidence collecting or retaining entity receives proof of delivery under Subsection (5):
(i)
file a motion for testing of the biological evidence under Section 78B-9-301; or
(ii)
submit a written request under Subsection (5)(b)(ii).
(5)
If the evidence collecting or retaining entity intends to dispose of the biological evidence before the day on which the period described in Subsection (2)(a) expires, the evidence collecting or retaining entity shall send a notice of intent to dispose of the biological evidence that:
(a)
is sent by certified mail, return receipt requested, or a delivery service that provides proof of delivery, to:
(i)
an individual who remains in custody based on a criminal conviction related to the biological evidence;
(ii)
the private attorney or public defender of record for each individual described in Subsection (5)(a)(i);
(iii)
if applicable, the prosecuting agency responsible for the prosecution of each individual described in Subsection (5)(a)(i); and
(iv)
the Utah attorney general; and
(b)
explains that the party receiving the notice may:
(i)
file a motion for testing of biological evidence under Section 78B-9-301; or
(ii)
submit a written request that the evidence collecting or retaining entity retain the biological evidence.
(6)
(a)
Subject to Subsections (6)(b) and (c), if the evidence collecting or retaining entity receives a written request to retain the biological evidence under Subsection (5)(b)(ii), the evidence collecting or retaining entity shall retain the biological evidence while the defendant remains in custody.
(b)
Subject to Subsection (6)(c), the evidence collecting or retaining entity is not required to preserve physical evidence that may contain biological evidence if the physical evidence’s size, bulk, or physical character renders retention impracticable.
(c)
If the evidence collecting or retaining entity determines that retention is impracticable, before returning or disposing of the physical evidence, the evidence collecting or retaining entity shall:
(i)
remove the portions of the physical evidence likely to contain biological evidence related to the violent felony offense; and
(ii)
preserve the removed biological evidence in a quantity sufficient to permit future DNA testing.
(7)
To comply with the preservation requirements described in this section, a law enforcement agency or a court may:
(a)
retain the biological evidence; or
(b)
if a continuous chain of custody can be maintained, return the biological evidence to the custody of the other law enforcement agency that originally provided the biological evidence to the law enforcement agency.
Renumbered and Amended by Chapter 448, 2023 General Session
