This past legislative session has just ended and there were a number of bills that affected criminal defense. I was able to participate in several hearings and provide valuable insight to various legislators to influence whether a proposed bill should be passed, modified, or defeated. I am happy to report that every bill we supported went through, and most that we opposed were either modified or were defeated. Here is a summary:
HB 65
This bill modifies Title 76, Utah Criminal Code, regarding distributing intimate images of a person without that person’s permission; provides a definition of “intimate image”; provides that distribution of an intimate image of a person, without that person’s permission, is a third degree felony; and provides that specified activities and procedures are not subject to the provisions of this bill, including law enforcement and judicial and commercial processes. UACDL was opposed to this. Sean Druyon sent several emails to legislators trying to convince them that the punishment proposed (a third degree felony) was too punitive for a first offense. The bill was eventually modified, making it a misdemeanor offense for a first offense, but a subsequent offense a felony. It passed, as modified.
HB 257
This bill modifies the Criminal Code regarding the offense of aggravated sexual abuse of a child; modifies the offense of aggravated sexual abuse of a child by providing a definition of the term “position of special trust”. SBD: it appears to Sean that they are adding a per se position of sibling if the sibling is an adult, and then changing the definition of “position of special trust” slightly from “position of special trust” means that position occupied by a person in a position of authority, who, by reason of that position is able to exercise undue influence over the victim” TO: “any person in a position of authority…which enables the person to exercise undue influence over the child.” To Sean, this is not a significant change in the definition. The proposed bill only adds one per se position: sibling that is an adult. The bill passed unanimously.
HB 303
Changes one of the standards for a driving under the influence violation from “being under the influence of alcohol, any drug, or the combined influence of alcohol and any drug to a degree that renders the person incapable of safely operating a vehicle,” to “being impaired to the slightest degree by alcohol, any drug, any substance, or any combination thereof.” UACDL was strongly opposed to this. Sean Druyon and Glen Neely tracked this throughout the session. Sean sent emails to various legislators including Senator Todd Weiler and Representative Neilsen (friends of his) objecting to this overly broad bill. The bill was eventually killed.
SB 149
Modifies the existing code to only permit law enforcement to charge this as a SECONDARY offense. UACDL was in support of this. The bill passed.
SB 173
Allows the juvenile court to order that a child be removed from the child’s home if the court finds, by a preponderance of evidence that the child’s natural parent is identified by a law enforcement officer as the primary suspect in an active murder investigation where the alleged victim is the natural parent’s cohabitant, or where the natural parent is being prosecuted or has been convicted in such scenario. This bill appears to be a response to the Josh Powell case; it makes sense; however, it goes too far in permitting the court to remove a child if the parent is simply a suspect and nothing more. Also, subsection (i) and (iii) seem to be redundant. Sub (i) says if the person HAS intentionally, recklessly, etc., caused the death of another, and sub (iii) says if the person is being prosecutor for or has been convicted of. Seems redundant. As such, it needed some modifications as it gives courts too much power to remove and is HEAVILY disregarding the presumption of innocence. There needed to be an evidentiary standard specified as to what quantum of evidence is necessary in order for the court to have grounds to remove a child if the parent is a primary suspect in a murder investigation. UACDL didn’t necessarily opposes the removal if the person has been convicted of murder. The tricky part is when the person is only a primary suspect. What a reasonable proposal would be is at a minimum some evidentiary standard to identify more than just that the person as the “primary suspect.” Rather, it should be when the court finds by clear and convincing evidence that the person committed the murder. This can be done at the juvenile court level, the judge taking evidence and then making a ruling. If that ruling is made, and findings of fact are entered in the juvenile court, then the court can order removal. To do otherwise would, in Sean Druyon’s opinion, give law enforcement way too much power to apprehend a parent and remove the children without due process. Raising one’s children is one of the most fundamental rights there is. And I reckon this proposed bill will be challenged as being imbalanced in favor of the government, and not ones presumption of innocence nor one’s right to raise children. Sean Druyon met with Senator Weiler to discuss his concerns with him. Sean Druyon could not attend the hearings since they were scheduled when he had other court proceedings he could not get out of. The bill unfortunately passed through the house and senate.
SB 205
provides that increased penalties for the possession of a controlled substance in certain circumstances may not result in an offense greater than a second degree felony. This one caps the severity of the felony classification of a drug possession charge to a second degree felony. UACDL was not opposed to this bill. It passed.
SB 221
This bill provides for a parent, legal guardian, or child who is found to be indigent, the option of legal counsel appointed by the court under certain circumstances; defines when, and under what circumstances, court appointed legal counsel can be used for indigent representation; describes when a child can be represented by an attorney guardian ad litem in cases requiring counsel for indigents; describes payment and reimbursement practices when legal counsel is appointed by the court for indigent representation; and make technical changes. It expands the scope of representation to beyond cases where the child simply will be placed in out of home care, and now would extend to any situation where either the parents or the child can now receive representation if they show they are indigent (according to the standards provided in the Utah Indigent Defense Act section 202), so long as the parents have not initiated the litigation. In other words, if the state/government has initiated litigation for neglect, abuse, or termination of parental rights, etc., then either the parents or the child can now get an appointed attorney, whereas before I believe it was only if the child was headed towards an out of home care placement. UACDL not opposed to this bill as it provides more expansive court appointed representation for juveniles and their parents. Bill passed.