Evidence Retention Amendments

9
77-11c-203
77-11c-301
77-11c-303
77-11c-401
0
Evidence Retention Amendments
2026 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Wayne A. Harper
House Sponsor: Ken Ivory
LONG TITLE
General Description:
This bill amends provisions related to evidence retention.
Highlighted Provisions:
This bill:
amends requirements related to a request by a law enforcement agency to return or
dispose of evidence in a misdemeanor case;
amends the timelines that a law enforcement agency is required to retain evidence of
felony offenses; and
makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
77-11c-203
, as last amended by Laws of Utah 2024, Chapter 150
77-11c-301
, as last amended by Laws of Utah 2024, Chapters 150, 164
77-11c-303
, as enacted by Laws of Utah 2024, Chapter 150
77-11c-401
, as last amended by Laws of Utah 2024, Chapters 150, 164
Be it enacted by the Legislature of the state of Utah:
Section 1. Section
77-11c-203
is amended to read:
77-11c-203
. Request to prosecuting attorney by agency -- Notification to
defendant.
(1)
If an agency determines that the agency is not required to retain evidence of a
misdemeanor offense under Subsection
77-11c-202(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:
(a)
identifies the evidence;
(b)
explains the reason for which the agency is not required to retain the evidence under
Subsection
77-11c-202(1)(a)(i)
; and
(c)
explains the steps that the agency will take, or has taken, to preserve sufficient
evidence of the property, contraband, item, or substance for use as evidence in a
prosecution of the offense.
(2)
If the prosecuting attorney receives a written request under Subsection (1) and
determines that the agency needs to retain the evidence for a prosecution of the
misdemeanor 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.
(3)
If the prosecuting attorney receives a written request under Subsection (1) and
determines that the agency does not need to retain the evidence for a prosecution of the
misdemeanor offense, the prosecuting attorney shall provide written notice of the intent
to not retain the evidence that:
(a)
is sent by certified mail, return receipt requested, or a delivery service that provides
proof of delivery, to:
(i)
any individual charged with or adjudicated for the offense; and
(ii)
the individual's most recent attorney of record; and
(b)
explains that the individual receiving the notice may submit a written objection to
the prosecuting attorney.
(4)
(a)
An individual, who is charged with or adjudicated for the offense, may submit a
written objection to the return or disposal of the evidence by the agency no later than
30 days after the day on which the prosecuting attorney receives proof of delivery
under Subsection (3).
(b)
If an individual submits a written objection under Subsection (4)(a), 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.
(c)
If the prosecuting attorney does not receive a written objection within the time
period described in Subsection (4)(a), the prosecuting attorney shall send a written
notification to the agency that grants the agency's request to return or dispose of the
evidence.
(5)
(a)
If a prosecuting attorney receives a written request from an agency seeking to
return or dispose of evidence, the prosecuting attorney shall:
(i)
provide a notice of receipt to the agency within 15 days after the day on which
the prosecuting attorney receives the written request; and
(ii)
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.
(b)
If an agency does not receive a notice of receipt under Subsection (5)(a)(i) or a
written notification under Subsection (5)(a)(ii), the agency may send the written
request to the district attorney, county attorney, attorney general, or other prosecuting
attorney who directly oversees and supervises the prosecuting attorney.
(6)
If a prosecuting attorney denies an agency's written request to return or dispose of
evidence under this section, the agency shall retain the evidence in accordance with
Section
77-11c-201
.
(2)
If a prosecuting attorney receives a written request described in Subsection
(1)
, the
prosecuting attorney shall:
(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
(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, including an electronic delivery service, that provides
proof of delivery, to:
(a)
any individual who remains in custody based on a conviction related to the evidence;
(b)
the private attorney or public defender of record for each individual described in
Subsection
(3)(a)
;
(c)
the entity that employed the private attorney or public defender described in
Subsection
(3)(b)
at the time of the criminal conviction; and
(d)
if applicable, the prosecuting agency responsible for the prosecution of each
individual described in Subsection
(3)(a)
.
(4)
(a)
If a person described in Subsection
(3)
receives a request from an agency seeking
to return or dispose of evidence of the misdemeanor offense, the person may object to
the agency's request to return or dispose of evidence of the misdemeanor offense.
(b)
To object to an agency's request under Subsection
(4)(a)
, the person shall send a
written objection to the agency and prosecuting attorney within 60 days after the day
on which the person receives the agency's 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
misdemeanor 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)
If an agency does not receive a notice of receipt under Subsection
(2)(a)
or a written
notification under Subsection
(2)(b)
, the agency may send the written request to the
district attorney, county attorney, attorney general, or other prosecuting attorney who
directly oversees and supervises the prosecuting attorney.
(7)
If a prosecuting attorney denies an agency's written request to return or dispose of
evidence under this section, or a person described in Subsection
(3)
objects to the
agency's written request, the agency shall retain the evidence in accordance with Section
77-11c-201
.
(7)
(8)
The requirements of this section do not apply when the return or disposal of
evidence of a misdemeanor offense is in compliance with a memorandum of
understanding between the agency and the prosecuting attorney.
Section 2. Section
77-11c-301
is amended to read:
77-11c-301
. Retention of evidence for felony offenses.
(1)
Except as provided in Subsection
(4)
, an agency shall retain evidence of a felony
offense:
(a)
for the longer of:
(i)
the length of the statute of limitations for the felony offense if:
(A)
charges are not filed for the felony offense; or
(B)
the felony offense remains unsolved;
(ii)
the length of time that
any
an
individual
convicted of the felony offense, or a
lesser included offense,
remains in custody
;
if the individual is convicted of:
(A)
aggravated murder as described in Section
76-5-202
;
(B)
murder as described in Section
76-5-203
;
(C)
manslaughter as described in Section
76-5-205
;
(D)
child abuse homicide as described in Section
76-5-208
;
(E)
homicide by assault as described in Section
76-5-209
;
(F)
kidnapping as described in Section
76-5-301
;
(G)
aggravated kidnapping as described in Section
76-5-302
;
(H)
rape as described in Section
76-5-402
;
(I)
rape of a child as described in Section
76-5-402.1
;
(J)
object rape as described in Section
76-5-402.2
;
(K)
object rape of a child as described in Section
76-5-402.3
;
(L)
forcible sodomy as described in Section
76-5-403
;
(M)
sodomy on a child as described in Section
76-5-403.1
;
(N)
forcible sexual abuse as described in Section
76-5-404
;
(O)
sexual abuse of a child as described in Section
76-5-404.1
;
(P)
aggravated sexual abuse of a child as described in Section
76-5-404.3
;
(Q)
aggravated sexual assault as described in Section
76-5-405
;
(R)
robbery as described in Section
76-6-301
;
(S)
aggravated robbery as described in Section
76-6-302
;
(T)
felony discharge of a firearm as described in Section
76-11-210
; or
(U)
aggravated assault resulting in bodily injury as described in Subsection
76-5-103(3)(b)
or
(c)
;
(iii)
one year after the day on which all direct appeals of the final judgment for any
individual convicted of the felony offense, or a lesser included offense, are
exhausted;
or
(iv)
the length of time that a petition for postconviction relief
brought under Title
78B, Chapter 9, Postconviction Remedies Act
, and any appeal of the petition, is
pending if an individual convicted of the felony offense files the petition within
the one-year time period described in Subsection
(1)(a)(iii)
;
(v)
the length of time that a petition for a writ of habeas corpus brought under 28
U.S.C. Sec. 2254, and any appeal of the petition, is pending if an individual
convicted of the felony offense files the petition within the one-year time period
described in 28 U.S.C. Sec. 2244(d)(1);
or
(v)
(vi)
20 years from the day on which the evidence is collected if the evidence is
the contents of a sexual assault kit; or
(b)
at the discretion of the prosecuting attorney or federal prosecutor if the prosecution
of the felony offense resulted in an acquittal or dismissal.
(2)
An agency shall ensure that evidence of a felony offense is subject to a continuous chain
of custody.
(3)
Subsection
(1)
does not require an agency to return or dispose of evidence of a felony
offense.
(4)
An agency shall retain and preserve biological evidence of a violent felony offense in
accordance with Part 4, Preservation of Biological Evidence for Violent Felony Offenses.
Section 3. Section
77-11c-303
is amended to read:
77-11c-303
. Procedure for authorizing the return or disposal of evidence of a
felony offense.
(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:
(a)
identifies the evidence;
(b)
explains the reason that the agency is not required to retain the evidence under
Subsection
77-11c-302(1)(a)(i)
; and
(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:
(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
(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
, including an electronic delivery service,
that provides
proof of delivery, to:
(a)
any individual who remains in custody based on a conviction related to the evidence;
(b)
the private attorney or public defender of record for each individual described in
Subsection
(3)(a)
;
(c)
the entity that employed the private attorney or public defender described in
Subsection
(3)(b)
at the time of the criminal conviction;
(d)
if applicable, the prosecuting agency responsible for the prosecution of each
individual described in Subsection
(3)(a)
; and
(e)
the Utah attorney general.
(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.
(b)
To object to an agency's request under Subsection
(4)(a)
, the person
must
shall
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:
(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
(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:
(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;
(b)
the evidence no longer has any significant evidentiary value; and
(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:
(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
(b)
the time periods described in Section
77-11c-301
have expired.
(11)
The requirements of this section do not apply when the return or disposal of evidence
of a misdemeanor offense is in compliance with a memorandum of understanding
between the agency and the prosecuting attorney.
Section 4. Section
77-11c-401
is amended to read:
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.
(2)
An evidence collecting or retaining entity shall preserve biological evidence of a violent
felony offense:
(a)
for the longer of:
(i)
the length of the statute of limitations for the violent felony offense if:
(A)
no charges are filed for the violent felony offense; or
(B)
the violent felony offense remains unsolved;
(ii)
the length of time that
any
an
individual
convicted of the violent felony offense,
or a lesser included offense,
remains in custody
;
if the individual is convicted of:
(A)
aggravated murder as described in Section
76-5-202
;
(B)
murder as described in Section
76-5-203
;
(C)
manslaughter as described in Section
76-5-205
;
(D)
child abuse homicide as described in Section
76-5-208
;
(E)
homicide by assault as described in Section
76-5-209
;
(F)
kidnapping as described in Section
76-5-301
;
(G)
aggravated kidnapping as described in Section
76-5-302
;
(H)
rape as described in Section
76-5-402
;
(I)
rape of a child as described in Section
76-5-402.1
;
(J)
object rape as described in Section
76-5-402.2
;
(K)
object rape of a child as described in Section
76-5-402.3
;
(L)
forcible sodomy as described in Section
76-5-403
;
(M)
sodomy on a child as described in Section
76-5-403.1
;
(N)
forcible sexual abuse as described in Section
76-5-404
;
(O)
sexual abuse of a child as described in Section
76-5-404.1
;
(P)
aggravated sexual abuse of a child as described in Section
76-5-404.3
;
(Q)
aggravated sexual assault as described in Section
76-5-405
;
(R)
robbery as described in Section
76-6-301
;
(S)
aggravated robbery as described in Section
76-6-302
;
(T)
felony discharge of a firearm as described in Section
76-11-210
; or
(U)
aggravated assault resulting in bodily injury as described in Subsection
76-5-103(3)(b)
or
(c)
;
(iii)
one year after the day on which all direct appeals of the judgment for any
individual convicted of the violent felony offense, or a lesser included offense, are
exhausted;
(iv)
the length of time that a petition for postconviction relief
brought under Title
78B, Chapter 9, Postconviction Remedies Act
, and any appeal of the petition, is
pending if an individual convicted of the violent felony offense files the petition
within the one-year time period described in Subsection
(2)(a)(iii)
;
(v)
the length of time that a petition for a writ of habeas corpus brought under 28
U.S.C. Sec. 2254, and any appeal of the petition, is pending if an individual
convicted of the felony offense files the petition within the one-year time period
described in 28 U.S.C. Sec. 2244(d)(1);
or
(v)
(vi)
20 years from the day on which the biological evidence is collected if the
biological evidence is the contents of a sexual assault kit; or
(b)
at the discretion of the prosecuting attorney or federal prosecutor if the prosecution
of the violent felony offense resulted in an acquittal or dismissal.
(3)
An evidence collecting or retaining entity shall ensure that biological evidence under
Subsection
(2)
is:
(a)
preserved in an amount and manner sufficient to:
(i)
develop a DNA profile; and
(ii)
if practicable, allow for independent testing of the biological evidence by a
defendant; and
(b)
subject to a continuous chain of custody.
(4)
(a)
Upon request by a defendant under Title 63G, Chapter 2, Government Records
Access and Management Act, the evidence collecting or retaining entity shall prepare
an inventory of the biological evidence preserved in connection with the defendant's
criminal case.
(b)
If the evidence collecting or retaining entity cannot locate biological evidence
requested under Subsection
(4)(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.
(5)
(a)
If the evidence collecting or retaining entity intends to dispose of biological
evidence of a violent felony offense before the day on which the period described in
Subsection
(2)
expires, the evidence collecting or retaining entity shall send a notice
of intent to dispose of the biological evidence that:
(i)
is sent by certified mail, return receipt requested, or a delivery service that
provides proof of delivery, to:
(A)
an individual who remains in custody based on a criminal conviction related
to the biological evidence;
(B)
the private attorney or public defender of record for each individual described
in Subsection
(5)(a)(i)(A)
;
(C)
the entity that employed the private attorney or public defender at the time of
the criminal conviction;
(D)
if applicable, the prosecuting agency responsible for the prosecution of each
individual described in Subsection
(5)(a)(i)(A)
; and
(E)
the Utah attorney general; and
(ii)
explains that the party receiving the notice may:
(A)
file a motion for testing of biological evidence under Section
78B-9-301
if the
party is the individual convicted of the violent felony offense; or
(B)
submit a written request that the evidence collecting or retaining entity retain
the biological evidence.
(b)
An individual
must
shall
file a motion, or submit a written request, described in
Subsection
(5)(a)(ii)
within 180 days after the day on which the evidence collecting
or retaining entity receives proof of delivery under Subsection
(5)(a)
.
(c)
An evidence collecting or retaining entity shall send a notice of intent to dispose of
biological evidence that is the contents of a sexual assault kit to a victim in
accordance with Section
53-10-905
.
(6)
The evidence collecting or retaining entity may not dispose of biological evidence of a
violent felony offense before the day on which the time period described in Subsection
(2)
expires if:
(a)
the evidence collecting or retaining entity is required by federal or state law to
preserve the biological evidence; or
(b)
(i)
the evidence collecting or retaining entity sends notice in accordance with:
(A)
Subsection
(5)
; and
(B)
Section
53-10-905
if the biological evidence is the contents of a sexual assault
kit; and
(ii)
an individual notified under Subsection
(5)(a)
or Section
53-10-905
:
(A)
files a motion for testing of the biological evidence under Section
78B-9-301

within the 180-day period described in Subsection
(5)(b)
; or
(B)
submits a written request for retention of the biological evidence within the
180-day period described in Subsection
(5)(b)
or Section
53-10-905
.
(7)
(a)
Subject to Subsections
(7)(b)
and
(c)
, if the evidence collecting or retaining entity
receives a written request to retain the biological evidence, the evidence collecting or
retaining entity shall retain the biological evidence for the time period described in
Subsection
(2)
.
(b)
Subject to Subsection
(7)(c)
, the evidence collecting or retaining entity may only
return or dispose of physical evidence as described in Part 3, Retention of Evidence
for Felony Offenses.
(c)
If the evidence collecting or retaining entity is not required to retain physical
evidence of the violent felony offense under Part 3, Retention of Evidence for Felony
Offenses, 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.
(8)
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.
Section 5.
Effective Date.
This bill takes effect on
May 6, 2026
.
3-3-26 8:19 AM