Utah
Constitution
Victims' Rights Amendment
Article I, Section 28. [Declaration of the rights
of crime
victims.]
(1) To preserve and protect victims' rights to
justice
and due process, victims of crimes have these rights, as defined by law:
(a) To be
treated with fairness, respect, and
dignity,
and to be free from harassment and abuse throughout the criminal
justice
process;
(b) Upon
request, to be informed of, be
present at,
and to be heard at important criminal justice hearings related to the
victim,
either in person or through a lawful representative, once a criminal
information or indictment charging a crime has been publicly filed in
court;
and
(c) To have a sentencing judge,
for the
purpose of
imposing an appropriate sentence, receive and consider, without
evidentiary limitation,
reliable information concerning the background, character, and conduct
of a
person convicted of an offense except that this subsection does not
apply to
capital cases or situations involving privileges.
(2) Nothing in this section shall be construed
as
creating a cause of action for money damages, costs, or attorney's
fees, or for
dismissing any criminal charge, or relief from any criminal judgment.
(3) The provisions of this section shall
extend to all
felony crimes and such other crimes or acts, including juvenile
offenses, as
the Legislature may provide.
(4) The Legislature shall have the power to
enforce
and define this section by statute.
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Utah
Rights of Crime Victims Act
| 77-38-1. | Title. |
| 77-38-2. | Definitions. |
| 77-38-3. | Notification
to victims -- Initial notice,
election
to receive subsequent notices -- Form of notice -- Protected victim
information. |
| 77-38-4. | Right
to be present and to
be heard -- Control of
disruptive acts or irrelevant statements -- Statements from persons in
custody. |
| 77-38-5. | Application
to felonies and misdemeanors of the declaration of the rights of crime
victims. |
| 77-38-6. | Victim's
right to privacy. |
| 77-38-7. | Victim's
right to a speedy trial. |
| 77-38-8. | Age-appropriate
language at judicial proceedings -- Advisor. |
| 77-38-9. | Representative
of victim -- Court
designation --
Representation in cases involving minors -- Photographs in homicide
cases. |
| 77-38-10. | Victim's
discretion. |
| 77-38-11. | Enforcement
-- Appellate Review -- No right to money damages. |
| 77-38-12. | Construction
of this chapter --
No right to set
aside
conviction, adjudication, admission, or plea -- Severability clause. |
| 77-38-13. | Declaration
of legislative authority. |
| 77-38-14. | Notice
of expungement petition -- Victim's right to object. |
77-38-1.
Title.
This act shall be known and may be cited as
the
"Rights of Crime Victims Act."
77-38-2.
Definitions.
For the purposes of this chapter and the Utah
Constitution:
(1) "Abuse" means treating the crime victim
in a manner so as to injure, damage, or disparage.
(2) "Dignity" means treating the crime
victim with worthiness, honor, and esteem.
(3) "Fairness" means treating the crime
victim reasonably, even-handedly, and impartially.
(4) "Harassment" means treating the crime
victim in a persistently annoying manner.
(5) "Important criminal justice hearings" or
"important juvenile justice hearings" means the following proceedings
in felony criminal cases or cases involving a minor's conduct which
would be a
felony if committed by an adult:
(a) any preliminary hearing to
determine
probable
cause;
(b) any court
arraignment where practical;
(c) any court proceeding
involving the
disposition of
charges against a defendant or minor or the delay of a previously
scheduled
trial date but not including any unanticipated proceeding to take an
admission
or a plea of guilty as charged to all charges previously filed or any
plea
taken at an initial appearance;
(d) any court
proceeding to determine whether
to
release a defendant or minor and, if so, under what conditions release
may
occur, excluding any such release determination made at an initial
appearance;
(e) any criminal
or delinquency trial,
excluding any
actions at the trial that a court might take in camera, in chambers, or
at a
sidebar conference;
(f) any court
proceeding to determine the
disposition
of a minor or sentence, fine, or restitution of a defendant or to
modify any
disposition of a minor or sentence, fine, or restitution of a
defendant; and
(g) any public hearing
concerning whether to
grant a
defendant or minor parole or other form of discretionary release from
confinement.
(6) "Reliable information" means information
worthy of confidence, including any information whose use at sentencing
is
permitted by the United States Constitution.
(7) "Representative of a victim" means a
person who is designated by the victim or designated by the court and
who
represents the victim in the best interests of the victim.
(8) "Respect" means treating the crime
victim with regard and value.
(9) (a) "Victim of a crime" means any
natural person against whom the charged crime or conduct is alleged to
have
been perpetrated or attempted by the defendant or minor personally or
as a
party to the offense or conduct or, in the discretion of the court,
against
whom a related crime or act is alleged to have been perpetrated or
attempted,
unless the natural person is the accused or appears to be accountable
or
otherwise criminally responsible for or criminally involved in the
crime or
conduct or a crime or act arising from the same conduct, criminal
episode, or
plan as the crime is defined under the laws of this state.
(b) For purposes
of the right to be present,
"victim of a crime" does not mean any person who is in custody as a
pretrial detainee, as a prisoner following conviction for an offense,
or as a
juvenile who has committed an act that would be an offense if committed
by an
adult, or who is in custody for mental or psychological treatment.
(c) For purposes
of the right to be present
and heard
at a public hearing as provided in Subsection 77-38-2(5)(g) and
the
right to notice as provided in Subsection 77-38-3(7)(a),
"victim of
a crime" includes any victim originally named in the allegation of
criminal conduct who is not a victim of the offense to which the
defendant
entered a negotiated plea of guilty
77-38-3. Notification to
victims -- Initial notice,
election
to receive subsequent notices -- Form of notice -- Protected victim
information.
(1) Within seven days of the filing of felony
criminal
charges against a defendant, the prosecuting agency shall provide an
initial
notice to reasonably identifiable and locatable victims of the crime
contained
in the charges, except as otherwise provided in this chapter.
(2) The initial notice to the victim of a
crime shall
provide information about electing to receive notice of subsequent
important
criminal justice hearings listed in Subsections 77-38-2(5)(a)
through
(f) and rights under this chapter.
(3) The prosecuting agency shall provide
notice to a
victim of a crime for the important criminal justice hearings, provided
in
Subsections 77-38-2(5)(a) through (f) which the victim has
requested.
(4) (a) The responsible prosecuting agency may
provide
initial and subsequent notices in any reasonable manner, including
telephonically, electronically, orally, or by means of a letter or form
prepared for this purpose.
(b) In the event
of an unforeseen important
criminal
justice hearing, listed in Subsections 77-38-2(5)(a) through
(f) for
which a victim has requested notice, a good faith attempt to contact
the victim
by telephone shall be considered sufficient notice, provided that the
prosecuting agency subsequently notifies the victim of the result of
the
proceeding.
(5) (a) The court shall take reasonable
measures to
ensure that its scheduling practices for the proceedings provided in
Subsections 77-38-2(5)(a) through (f) permit an opportunity for
victims
of crimes to be notified.
(b) The court
shall also consider whether any
notification system that it might use to provide notice of judicial
proceedings
to defendants could be used to provide notice of those same proceedings
to
victims of crimes.
(6) A defendant or, if it is the moving party,
Adult
Probation and Parole, shall give notice to the responsible prosecuting
agency
of any motion for modification of any determination made at any of the
important criminal justice hearings provided in Subsections
77-38-2(5)(a)
through (f) in advance of any requested court hearing or action so that
the
prosecuting agency may comply with its notification obligation.
(7) (a) Notice to a victim of a crime shall be
provided by the Board of Pardons and Parole for the important criminal
justice
hearing provided in Subsection 77-38-2(5)(g).
(b) The board
may provide notice in any
reasonable
manner, including telephonically, electronically, orally, or by means
of a
letter or form prepared for this purpose.
(8) Prosecuting agencies and the Board of
Pardons and
Parole are required to give notice to a victim of a crime for the
proceedings
provided in Subsections 77-38-2(5)(a) through (f) only where
the victim
has responded to the initial notice, requested notice of subsequent
proceedings, and provided a current address and telephone number if
applicable.
(9) (a) Law enforcement and criminal justice
agencies
shall refer any requests for notice or information about crime victim
rights
from victims to the responsible prosecuting agency.
(b) In a case in
which the Board of Pardons
and Parole
is involved, the responsible prosecuting agency shall forward any
request for
notice that it has received from a victim to the Board of Pardons and
Parole.
(10) In all cases where the number of victims
exceeds
ten, the responsible prosecuting agency may send any notices required
under
this chapter in its discretion to a representative sample of the
victims.
(11) (a) A victim's
address,
telephone number, and victim impact statement maintained by a peace
officer,
prosecuting agency, Youth Parole Authority, Division of Juvenile
Justice
Services, Department of Corrections, and Board of Pardons and Parole,
for
purposes of providing notice under this section, is classified as
protected as
provided in Subsection 63-2-304(10).
(b) The victim's
address, telephone number,
and victim
impact statement is available only to the following persons or entities
in the
performance of their duties:
(i) a law enforcement agency, including the
prosecuting agency;
(ii) a victims' right committee as provided in
Section
77-37-5;
(iii) a governmentally sponsored victim or
witness
program;
(iv) the Department of Corrections;
(v) Office of Crime Victims' Reparations;
(vi) Commission on Criminal and Juvenile
Justice; and
(vii) the Board of Pardons and Parole.
(12) The notice provisions as provided in this
section
do not apply to misdemeanors as provided in Section 77-38-5 and
to
important juvenile justice hearings as provided in Section
77-38-2.
77-38-4. Right to be present and to be heard -- Control of
disruptive acts or irrelevant statements -- Statements from persons in
custody.
(1) The victim of a
crime shall have the
right to
be present at the important criminal or juvenile justice hearings
provided in
Subsections 77-38-2(5)(a) through (f), the right to be heard at the
important
criminal or juvenile justice hearings provided in Subsections
77-38-2(5)(b),
(c), (d), and (f), and, upon request to the judge hearing the matter,
the right
to be present and heard at the initial appearance of the person
suspected of
committing the conduct or criminal offense against the victim on issues
relating to whether to release a defendant or minor and, if so, under
what
conditions release may occur.
(2) This chapter shall not confer any right to
the
victim of a crime to be heard:
(a) at any
criminal trial, including the
sentencing
phase of a capital trial under Section 76-3-207 or at any preliminary
hearing,
unless called as a witness; and
(b) at any
delinquency trial or at any
preliminary
hearing in a minor's case, unless called as a witness.
(3) The right of a victim or representative of
a
victim to be present at trial is subject to Rule 615 of the Utah Rules
of
Evidence.
(4) Nothing in this chapter shall deprive the
court of
the right to prevent or punish disruptive conduct nor give the victim
of a
crime the right to engage in disruptive conduct.
(5) The court shall have the right to limit
any
victim's statement to matters that are relevant to the proceeding.
(6) In all cases where the number of victims
exceeds
five, the court may limit the in-court oral statements it receives from
victims
in its discretion to a few representative statements.
(7) Except as otherwise provided in this
section, a
victim's right to be heard may be exercised at the victim's discretion
in any
appropriate fashion, including an oral, written, audiotaped, or
videotaped
statement or direct or indirect information that has been provided to
be
included in any presentence report.
(8) If the victim of a crime is a person who
is in
custody as a pretrial detainee, as a prisoner following conviction for
an
offense, or as a juvenile who has committed an act that would be an
offense if
committed by an adult, or who is in custody for mental or psychological
treatment, the right to be heard under this chapter shall be exercised
by
submitting a written statement to the court.
(9) The court may exclude any oral statement
from a
victim on the grounds of the victim's incompetency as provided in Rule
601(a)
of Utah Rules of Evidence.
(10) Except in juvenile court cases, the
Constitution
may not be construed as limiting the existing rights of the prosecution
to
introduce evidence in support of a capital sentence.
top
77-38-5.
Application
to felonies and misdemeanors of the declaration of the rights of crime
victims.
The provisions of this chapter shall apply to:
(1) any felony filed in the courts of the
state;
(2) to any class A and class B misdemeanor
filed in
the courts of the state; and
(3) to cases in the juvenile court as provided
in
Section 78-3a-115.
top
77-38-6.
Victim's
right to privacy.
(1) The victim of a crime has the right, at
any court
proceeding, including any juvenile court proceeding, not to testify
regarding
the victim's address, telephone number, place of employment, or other
locating
information unless the victim specifically consents or the court orders
disclosure on finding that a compelling need exists to disclose the
information. A court proceeding on whether to order disclosure shall be
in
camera.
(2) A defendant may not compel any witness to
a crime,
at any court proceeding, including any juvenile court proceeding, to
testify
regarding the witness's address, telephone number, place of employment,
or
other locating information unless the witness specifically consents or
the
court orders disclosure on finding that a compelling need for the
information
exists. A court proceeding on whether to order disclosure shall be in
camera.
77-38-7.
Victim's
right to a speedy trial.
(1) In determining a date for any criminal
trial or
other important criminal or juvenile justice hearing, the court shall
consider
the interests of the victim of a crime to a speedy resolution of the
charges
under the same standards that govern a defendant's or minor's right to
a speedy
trial.
(2) The victim of a crime has the right to a
speedy
disposition of the charges free from unwarranted delay caused by or at
the
behest of the defendant or minor and to prompt and final conclusion of
the case
after the disposition or conviction and sentence, including prompt and
final
conclusion of all collateral attacks on dispositions or criminal
judgments.
(3) (a) In ruling on any motion by a defendant
or
minor to continue a previously established trial or other important
criminal or
juvenile justice hearing, the court shall inquire into the
circumstances
requiring the delay and consider the interests of the victim of a crime
to a
speedy disposition of the case.
(b) If a
continuance is granted, the court
shall enter
in the record the specific reason for the continuance and the
procedures that
have been taken to avoid further delays.
77-38-8.
Age-appropriate
language at judicial proceedings -- Advisor.
(1) In any criminal proceeding or juvenile
court
proceeding regarding or involving a child, examination and
cross-examination of
a victim or witness 13 years of age or younger shall be conducted in
age-appropriate language.
(2) (a) The court may appoint an advisor to
assist a
witness 13 years of age or younger in understanding questions asked by
counsel.
(b) The advisor
is not required to be an
attorney.
77-38-9. Representative of victim -- Court designation --
Representation in cases involving minors -- Photographs in homicide
cases.
(1) (a) A victim of
a crime may designate,
with
the approval of the court, a representative who may exercise the same
rights that
the victim is entitled to exercise under this chapter.
(b) Except as
otherwise provided in this
section, the
victim may revoke the designation at any time.
(c) In cases where the designation is in
question, the
court may require that the designation of the representative be made in
writing
by the victim.
(2) In cases in which the victim is deceased
or
incapacitated, upon request from the victim's spouse, parent, child, or
close
friend, the court shall designate a representative or representatives
of the
victim to exercise the rights of a victim under this chapter on behalf
of the
victim. The responsible prosecuting agency may request a designation to
the
court.
(3) (a) If the victim is a minor, the court in
its
discretion may allow the minor to exercise the rights of a victim under
this
chapter or may allow the victim's parent or other immediate family
member to
act as a representative of the victim.
(b) The court may also, in its
discretion,
designate a
person who is not a member of the immediate family to represent the
interests
of the minor.
(4) The representative of a victim of a crime
shall
not be:
(a) the accused
or a person who appears to be
accountable or otherwise criminally responsible for or criminally
involved in
the crime or conduct, a related crime or conduct, or a crime or act
arising
from the same conduct, criminal episode, or plan as the crime or
conduct is
defined under the laws of this state;
(b) a person in
the custody of or under
detention of
federal, state, or local authorities; or
(c) a person
whom the court in its discretion
considers to be otherwise inappropriate.
(5) Any notices that are to be provided to a
victim
pursuant to this chapter shall be sent to the victim or the victim's
lawful
representative.
(6) On behalf of the victim, the prosecutor
may assert
any right to which the victim is entitled under this chapter, unless
the victim
requests otherwise or exercises his own rights.
(7) In any homicide prosecution, the
prosecution may
introduce a photograph of the victim taken before the homicide to
establish
that the victim was a human being, the identity of the victim, and for
other
relevant purposes.
77-38-10.
Victim's
discretion.
(1) (a) The victim may exercise any rights
under this
chapter at his discretion to be present and to be heard at a court
proceeding,
including a juvenile delinquency proceeding.
(b) The absence
of the victim at the court
proceeding
does not preclude the court from conducting the proceeding.
(2) A victim shall not refuse to comply with
an
otherwise lawful subpoena under this chapter.
(3) A victim shall not prevent the prosecution
from
complying with requests for information within a prosecutor's
possession and
control under this chapter.
77-38-11.
Enforcement
-- Appellate Review -- No right to money damages.
(1) If a person acting under color of state
law
willfully or wantonly fails to perform duties so that the rights in
this
chapter are not provided, an action for injunctive relief, including
prospective injunctive relief, may be brought against the individual
and the
governmental entity that employs the individual.
(2) (a) The victim of a crime or
representative of a
victim of a crime, including any Victims' Rights Committee as defined
in
Section 77-37-5 may:
(i) bring an action for declaratory relief or
for a
writ of mandamus defining or enforcing the rights of victims and the
obligations of government entities under this chapter; and
(ii) petition to file an amicus brief in any
court in
any case affecting crime victims.
(b) Adverse
rulings on these actions or on a
motion or
request brought by a victim of a crime or a representative of a victim
of a
crime may be appealed under the rules governing appellate actions,
provided
that no appeal shall constitute grounds for delaying any criminal or
juvenile
proceeding.
(c) An appellate
court shall review all such
properly
presented issues, including issues that are capable of repetition but
would
otherwise evade review.
(3) The failure to provide the rights in this
chapter
or Title 77, Chapter 37, Victims Rights, shall not constitute cause for
a
judgment against the state or any government entity, or any individual
employed
by the state or any government entity, for monetary damages, attorneys'
fees,
or the costs of exercising any rights under this chapter.
77-38-12. Construction of this chapter -- No right to set
aside
conviction, adjudication, admission, or plea -- Severability clause.
(1) All of the
provisions contained in
this
chapter shall be construed to assist the victims of crime.
(2) This chapter may not be construed as
creating a
basis for dismissing any criminal charge or delinquency petition,
vacating any
adjudication or conviction, admission or plea of guilty or no contest,
or for
appellate, habeas corpus, except in juvenile cases, or other relief
from a
judgment in any criminal or delinquency case.
(3) This chapter may not be construed as
creating any
right of a victim to appointed counsel at state expense.
(4) All of the rights contained in this
chapter shall
be construed to conform to the Constitution of the
United
States.
(5) (a) In the event that any portion of this
chapter
is found to violate the Constitution of the
United
States, the remaining provisions of
this
chapter shall continue to operate in full force and effect.
(b) In the event
that a particular application
of any
portion of this chapter is found to violate the Constitution of the
United
States, all other applications shall
continue to operate in full force and effect.
(6) The enumeration of certain rights for
crime
victims in this chapter shall not be construed to deny or disparage
other
rights granted by the Utah Constitution or the Legislature or retained
by
victims of crimes.
77-38-13.
Declaration
of legislative authority.
It is the view of the Legislature that the
provisions
of this chapter, and other provisions enacted simultaneously with it,
are
substantive provisions within inherent legislative authority. In the
event that
any of the provisions of this chapter, and other provisions enacted
simultaneously with it, are interpreted to be procedural in nature, the
Legislature also intends to invoke its powers to modify procedural
rules under
the Utah Constitution.
top
77-38-14.
Notice
of expungement petition -- Victim's right to object.
(1) The Department of Corrections or the
Juvenile
Probation Department shall prepare a document explaining the right of a
victim
or a victim's representative to object to a petition for expungement
under
Section 77-18-11 or 78-3a-905 and the procedures for obtaining
notice of
any such petition. The department or division shall also provide each
trial
court a copy of the document which has jurisdiction over delinquencies
or
criminal offenses subject to expungement.
(2) The prosecuting attorney in any case
leading to a
conviction or an adjudication subject to expungement shall provide a
copy of
the document to each person who would be entitled to notice of a
petition for
expungement under Sections 77-18-11 and 78-3a-905.
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Utah Crime Victims' Bill of Rights
77-37-1.
Legislative
intent.
(1) The Legislature recognizes the duty of
victims and
witnesses of crime to fully and voluntarily cooperate with law
enforcement and
prosecutorial agencies, the essential nature of citizen cooperation to
state
and local law enforcement efforts, and the general effectiveness and
well-being
of the criminal justice system of this state. In this chapter, the
Legislature
declares its intent to ensure that all victims and witnesses of crime
are
treated with dignity, respect, courtesy, and sensitivity, and that the
rights
extended in this chapter to victims and witnesses of crime are honored
and
protected by law in a manner no less vigorous than protections afforded
criminal defendants.
(2) The Legislature finds it is necessary to
provide
child victims and child witnesses with additional consideration and
different
treatment than that usually afforded to adults. The treatment should
ensure
that children's participation in the criminal justice process be
conducted in the
most effective and least traumatic, intrusive, or intimidating manner.
top
77-37-2.
Definitions.
In this chapter:
(1) "Child" means a person who is younger
than 18 years of age, unless otherwise specified in statute. The rights
to
information as extended in this chapter also apply to the parents,
custodian,
or legal guardians of children.
(2) "Family member" means spouse, child,
sibling, parent, grandparent, or legal guardian.
(3) "Victim" means a person against whom a
crime has allegedly been committed, or against whom an act has
allegedly been
committed by a juvenile or incompetent adult, which would have been a
crime if
committed by a competent adult.
(4) "Witness" means any person who has been
subpoenaed or is expected to be summoned to testify for the prosecution
or who
by reason of having relevant information is subject to call or likely
to be
called as a witness for the prosecution, whether any action or
proceeding has
commenced.
77-37-3.
Bill
of Rights.
(1) The bill of rights for victims and
witnesses is:
(a) Victims and witnesses have
a right to be
informed
as to the level of protection from intimidation and harm available to
them, and
from what sources, as they participate in criminal justice proceedings
as
designated by Section 76-8-508, regarding witness tampering,
and Section
76-8-509, regarding threats against a victim. Law enforcement,
prosecution, and corrections personnel have the duty to timely provide
this
information in a form that is useful to the victim.
(b) Victims and
witnesses, including children
and
their guardians, have a right to be informed and assisted as to their
role in
the criminal justice process. All criminal justice agencies have the
duty to
provide this information and assistance.
(c) Victims and
witnesses have a right to
clear
explanations regarding relevant legal proceedings; these explanations
shall be
appropriate to the age of child victims and witnesses. All criminal
justice
agencies have the duty to provide these explanations.
(d) Victims and
witnesses should have a secure
waiting
area that does not require them to be in close proximity to defendants
or the
family and friends of defendants. Agencies controlling facilities
shall,
whenever possible, provide this area.
(e) Victims are
entitled to restitution or
reparations, including medical costs, as provided in Title 63, Chapter
25a,
Criminal Justice and Substance Abuse, and Sections 62A-7-109,
77-38a-302,
and 77-27-6. State and local government agencies that serve
victims have
the duty to have a functional knowledge of the procedures established
by the
Utah Crime Victims' Reparations Board and to inform victims of these
procedures.
(f) Victims and
witnesses have a right to have
any
personal property returned as provided in Sections 77-24-1
through 77-24-5.
Criminal justice agencies shall expeditiously return the property when
it is no
longer needed for court law enforcement or prosecution purposes.
(g) Victims and
witnesses have the right to
reasonable
employer intercession services, including pursuing employer cooperation
in
minimizing employees' loss of pay and other benefits resulting from
their
participation in the criminal justice process. Officers of the court
shall
provide these services and shall consider victims' and witnesses'
schedules so
that activities which conflict can be avoided. Where conflicts cannot
be
avoided, the victim may request that the responsible agency intercede
with
employers or other parties.
(h) Victims and
witnesses, particularly
children,
should have a speedy disposition of the entire criminal justice
process. All
involved public agencies shall establish policies and procedures to
encourage
speedy disposition of criminal cases.
(i) Victims and witnesses have
the right to
timely
notice of judicial proceedings they are to attend and timely notice of
cancellation of any proceedings. Criminal justice agencies have the
duty to
provide these notifications. Defense counsel and others have the duty
to
provide timely notice to prosecution of any continuances or other
changes that
may be required.
(j) Victims of sexual offenses
have a right to
be
informed of their right to request voluntary testing for themselves for
HIV
infection as provided in Section 76-5-503 and to request
mandatory
testing of the convicted sexual offender for HIV infection as provided
in
Section 76-5-502. The law enforcement office where the sexual
offense is
reported shall have the responsibility to inform victims of this right.
(2) Informational rights of the victim under
this
chapter are based upon the victim providing his current address and
telephone
number to the criminal justice agencies involved in the case.
77-37-4.
Additional
rights -- Children.
In addition to all rights afforded to victims
and
witnesses under this chapter, child victims and witnesses shall be
afforded
these rights:
(1) Children have the right to protection from
physical and emotional abuse during their involvement with the criminal
justice
process.
(2) Children are not responsible for
inappropriate
behavior adults commit against them and have the right not to be
questioned, in
any manner, nor to have allegations made, implying this responsibility.
Those
who interview children have the responsibility to consider the
interests of the
child in this regard.
(3) Child victims and witnesses have the right
to have
interviews relating to a criminal prosecution kept to a minimum. All
agencies
shall coordinate interviews and ensure that they are conducted by
persons
sensitive to the needs of children.
(4) Child victims have the right to be
informed of available
community resources that might assist them and how to gain access to
those
resources. Law enforcement and prosecutors have the duty to ensure that
child
victims are informed of community resources, including counseling prior
to the
court proceeding, and have those services available throughout the
criminal
justice process.
77-37-5.
Remedies
-- Victims' Rights Committee.
Remedies available are:
(1) In each judicial district, the presiding
district
court judge shall appoint a person who shall establish and chair a
victims'
rights committee consisting of:
(a) a county attorney or
district attorney;
(b) a sheriff;
(c) a
corrections field services administrator;
(d) an appointed
victim advocate;
(e) a municipal
attorney;
(f) a municipal
chief of police; and
(g) other
representatives as appropriate.
(2) The committee shall meet at least
semiannually to
review progress and problems related to this chapter, Title 77, Chapter
38, and
Utah Constitution Article I, Section 28. Victims and other interested
parties
may submit matters of concern to the victims' rights committee. The
committee
may hold a hearing open to the public on any appropriate matter of
concern and
may publish its findings. These matters shall also be considered at the
meetings of the victims' rights committee. The committee shall forward
minutes
of all meetings to the Commission on Criminal and Juvenile Justice and
the
Office of Crime Victims' Reparations for review and other appropriate
action.
(3) The Office of Crime Victims' Reparations
shall
provide materials to local law enforcement to inform every victim of a
sexual
offense of the right to request testing of the convicted sexual
offender and of
the victim as provided in Section 76-5-502.
(4) If a person acting under color of state
law
willfully or wantonly fails to perform duties so that the rights in
this
chapter are not provided, an action for injunctive relief may be
brought against
the individual and the government entity that employs the individual.
The
failure to provide the rights in this chapter or Title 77, Chapter 38,
does not
constitute cause for a judgment against the state or any government
entity, or
any individual employed by the state or any government entity, for
monetary
damages, attorney's fees, or the costs of exercising any rights under
this
chapter.
(5) The person accused of and subject to
prosecution
for the crime or the act which would be a crime if committed by a
competent
adult, has no standing to make a claim concerning any violation of the
provisions of this chapter.
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Utah
Crime Victims' Reparations Act
63-25a-401. Title.
This part is known as the "Crime Victims'
Reparations Act" and may be abbreviated as the "CVRA."
63-25a-402. Definitions.
As used in this chapter:
(1) "Accomplice" means a person who has
engaged in criminal conduct as defined in Section 76-2-202.
(2) "Board" means the Crime Victims'
Reparations Board created under Section 63-25a-404.
(3) "Bodily injury" means physical pain,
illness, or any impairment of physical condition.
(4) "Claim" means:
(a) the victim's application or
request for a
reparations award; and
(b) the formal
action taken by a victim to
apply for
reparations pursuant to Sections 63-25a-401 through 63-25a-428.
(5) "Claimant" means any of the following
claiming reparations under this chapter:
(a) a victim;
(b) a
dependent of a deceased victim;
(c) a representative other
than a collateral
source;
or
(d) the person or
representative who files a
claim on
behalf of a victim.
(6) "Child" means an unemancipated person
who is under 18 years of age.
(7) "Collateral source" means the definition
as provided in Section 63-25a-413.
(8) "Contested case" means a case which the
claimant contests, claiming the award was either inadequate or denied,
or which
a county attorney, a district attorney, a law enforcement officer, or
other
individual related to the criminal investigation proffers reasonable
evidence
of the claimant's lack of cooperation in the prosecution of a case
after an
award has already been given.
(9) (a) "Criminally injurious conduct" other
than acts of war declared or not declared means conduct that:
(i) is
or would be subject to prosecution in
this
state under Section 76-1-201;
(ii) occurs or is attempted;
(iii) causes, or poses a substantial threat of
causing, bodily injury or death;
(iv) is punishable by fine, imprisonment, or
death if
the person engaging in the conduct possessed the capacity to commit the
conduct; and
(v) does not arise out of the ownership,
maintenance,
or use of a motor vehicle, aircraft, or water craft, unless the conduct
is
intended to cause bodily injury or death, or is conduct which is or
would be
punishable under Title 76, Chapter 5, Offenses Against the Person, or
as any
offense chargeable as driving under the influence of alcohol or drugs.
(b) "Criminally injurious conduct" includes
an act of terrorism, as defined in 18 U.S.C. 2331 committed outside of
the United States against a resident of this state.
"Terrorism" does not include an "act of war" as defined in
18 U.S.C. 2331.
(10) "Dependent" means a natural person to
whom the victim is wholly or partially legally responsible for care or
support
and includes a child of the victim born after his death.
(11) "Dependent's economic loss" means loss
after the victim's death of contributions of things of economic value
to his
dependent, not including services the dependent would have received
from the
victim if he had not suffered the fatal injury, less expenses of the
dependent
avoided by reason of victim's death.
(12) "Dependent's replacement services loss"
means loss reasonably and necessarily incurred by the dependent after
the
victim's death in obtaining services in lieu of those the decedent
would have
performed for his benefit if he had not suffered the fatal injury, less
expenses of the dependent avoided by
reason of the victim's death and not subtracted in calculating the
dependent's
economic loss.
(13) "Director" means the director of the
Reparations Office.
(14) "Disposition" means the sentencing or
determination of penalty or punishment to be imposed upon a person:
(a)
convicted of a crime;
(b) found delinquent; or
(c) against whom a finding of sufficient facts
for
conviction or finding of delinquency is made.
(15) "Economic loss" means economic
detriment consisting only of allowable expense, work loss, replacement
services
loss, and if injury causes death, dependent's economic loss and
dependent's
replacement service loss. Noneconomic detriment is not loss, but
economic
detriment is loss although caused by pain and suffering or physical
impairment.
(16) "Elderly victim" means a person 60
years of age or older who is a victim.
(17) "Fraudulent claim" means a filed claim
based on material misrepresentation of fact and intended to deceive the
reparations staff for the purpose of obtaining reparation funds for
which the
claimant is not eligible as provided in Section 63-25a-410.
(18) "Fund" means the Crime Victim
Reparation Fund created in Section 63-63a-4.
(19) "Law enforcement officer" means a law
enforcement officer as defined in Section 53-13-103.
(20) "Medical examination" means a physical
examination necessary to document criminally injurious conduct but does
not
include mental health evaluations for the prosecution and investigation
of a
crime.
(21) "Mental health counseling" means
outpatient and inpatient counseling necessitated as a result of
criminally
injurious conduct. The definition of mental health counseling is
subject to
rules promulgated by the board pursuant to Title 63, Chapter 46a, Utah
Administrative Rulemaking Act.
(22) "Misconduct" as provided in Subsection
63-25a-412(1)(b)
means conduct by the victim which was attributable to the injury or
death of
the victim as provided by rules promulgated by the board pursuant to
Title 63,
Chapter 46a, Utah Administrative Rulemaking Act.
(23) "Noneconomic detriment" means pain,
suffering, inconvenience, physical impairment, and other nonpecuniary
damage,
except as provided in this chapter.
(24) "Pecuniary loss" does not include loss
attributable to pain and suffering except as otherwise provided in this
chapter.
(25) "Offender" means a person who has
violated the criminal code through criminally injurious conduct
regardless of
whether he is arrested, prosecuted, or convicted.
(26) "Offense" means a violation of the
criminal code.
(27) "Perpetrator" means the person who
actually participated in the criminally injurious conduct.
(28) "Personal property" has the same
definition as provided in Section 68-3-12.
(29) "Reparations Office" means the office
of the reparations staff for the purpose of carrying out this chapter.
(30) "Reparations officer" means a person
employed by the Reparations Office to investigate claims of victims and
award
reparations under this chapter, and includes the director when
he is acting as a reparations
officer.
(31) "Reparations staff" means the director,
the reparations officers, and any other staff employed to administer
the Crime
Victims' Reparations Act.
(32) "Replacement service loss" means
expenses reasonably and necessarily incurred in obtaining ordinary and
necessary services in lieu of those the injured person would have
performed,
not for income but the benefit of himself or his dependents if he had
not been
injured.
(33) "Representative" means the victim,
immediate family member, legal guardian, attorney, conservator,
executor, or an
heir of a person but does not include service providers.
(34) "Restitution" means money or
services
an appropriate authority orders an offender to pay or render to a
victim of the
offender's conduct.
(35) "Secondary victim" means a person who
is traumatically affected by the criminally injurious conduct subject
to rules
promulgated by the board pursuant to Title 63, Chapter 46a, Utah
Administrative
Rulemaking Act.
(36) "Service provider" means a person
or
agency who provides a service to crime victims for a monetary fee
except
attorneys as provided in Section 63-25a-424.
(37) (a) "Victim" means a person who
suffers
bodily or psychological injury or death as a direct result of
criminally
injurious conduct or of the production of pornography in violation of
Sections 76-5a-1
through 76-5a-4 if the person is a minor.
(b) "Victim" does not include a person
who
participated in or observed the judicial proceedings against an
offender unless
otherwise provided by statute or rule.
(c) "Victim" includes a resident of this
state who is injured or killed by an act of terrorism, as defined in 18
U.S.C.
2331, committed outside of the United States.
(38) "Work loss" means loss of income
from
work the injured victim would have performed if he had not been injured
and
expenses reasonably incurred by him in obtaining services in lieu of
those he
would have performed for income, reduced by any income from substitute
work he
was capable of performing but unreasonably failed to undertake.
63-25a-403. Restitution -- Reparations not to
supplant
restitution -- Assignment of claim for restitution judgment to
Reparations
Office.
(1) A reparations award shall not supplant
restitution
as established under Title 77, Chapter 38a, Crime Victims Restitution
Act, or
as established by any other provisions.
(2) The court shall not consider a reparations
award
when determining the order of restitution nor when enforcing
restitution.
(3) If, due to reparation payments to a
victim, the
Reparations Office is assigned under Section 63-25a-419 a claim
for the
victim's judgment for restitution or a portion of the restitution, the
Reparations Office may file with the sentencing court a notice of the
assignment. The notice of assignment shall be signed by the victim and
a
Reparations Officer and shall state the amount of the claim assigned.
(4) Upon conviction and sentencing of the
defendant,
the court shall enter a civil judgment for complete restitution as
provided in
Section 77-38a-401 and identify the Reparations Office as the
assignee
of the assigned portion of the judgment.
(5) If the notice of assignment is filed after
sentencing, the court shall modify the civil judgment for restitution
to
identify the Reparations Office as the assignee of the assigned portion
of the
judgment.
63-25a-404. Crime Victims' Reparations Board --
Members.
(1) (a) A Crime Victims' Reparations Board is
created,
consisting of seven members appointed by the governor with the consent
of the
Senate.
(b) The
membership of the board shall consist
of:
(i) a member of the bar of this state;
(ii) a victim of criminally injurious conduct;
(iii) a licensed physician;
(iv) a representative of law enforcement;
(v) a mental health care provider; and
(vi) two other private citizens.
(c) The governor may appoint a chair of the
board who
shall serve for a period of time prescribed by the governor, not to
exceed the
length of the chair's term. The board may elect a vice chair to serve
in the
absence of the chair.
(d) The
board may hear appeals from
administrative
decisions as provided in rules adopted pursuant to Section 63-25a-415.
(2) (a) Except as required by Subsection
(2)(b), as
terms of current board members expire, the governor shall appoint each
new
member or reappointed member to a four-year term.
(b) Notwithstanding the requirements of
Subsection
(2)(a), the governor shall, at the time of appointment or
reappointment, adjust
the length of terms to ensure that the terms of board members are
staggered so
that approximately half of the board is appointed every two years.
(c) A
member may be reappointed to one
successive
term.
(3) (a) When a vacancy occurs in the
membership for
any reason, the replacement shall be appointed for the unexpired term.
(b) A member resigning from
the board shall
serve
until his successor is appointed and qualified.
(4) (a) (i) Members who are not government
employees
shall receive no compensation or benefits for their services, but may
receive
per diem and expenses incurred in the performance of the member's
official
duties at the rates established by the Division of Finance under
Sections 63A-3-106
and 63A-3-107.
(ii)
Members may decline to receive per diem
and
expenses for their service.
(b) (i) State government officer and employee
members
who do not receive salary, per diem, or expenses from their agency for
their
service may receive per diem and expenses incurred in the performance
of their
official duties from the board at the rates established by the Division
of
Finance under Sections 63A-3-106 and 63A-3-107.
(ii)
State government officer and employee
members may
decline to receive per diem and expenses for their service.
(5) The board shall meet at least once
quarterly but
may meet more frequently as necessary.
63-25a-405. Board and office within Commission on
Criminal
and Juvenile Justice.
(1) The Crime Victims' Reparations Board and
Reparations Office are placed within the Commission on Criminal and
Juvenile
Justice for the provision by the commission of administrative and
support
services to the Reparations Office.
(2) The board or the director may request
assistance
from the Commission on Criminal and Juvenile Justice, the Department of
Public
Safety, and other state agencies in conducting research or monitoring
victims'
programs.
(3) The fund shall appear as a separate line
item in
the Commission on Criminal and Juvenile Justice budget.
63-25a-406. Functions of board.
(1) The board shall:
(a) adopt a description of the organization
and
prescribe the general operation of the board;
(b)
prescribe policy for the Reparations
Office;
(c) adopt rules to implement and administer
Sections 63-25a-401
through 63-25a-428 pursuant to Title 63, Chapter 46a, Utah
Administrative Rulemaking Act, which may include setting of ceilings on
reparations, defining of terms not specifically stated in this chapter,
and
establishing of rules governing attorney fees;
(d)
prescribe forms for applications for
reparations;
(e) review all awards made
by the reparations
staff,
although the board may not reverse or modify awards authorized by the
reparations staff;
(f)
render an annual report to the governor
and the
Legislature regarding the staff's and the board's activities;
(g) cooperate with the
director and his staff
in
formulating standards for the uniform application of Section
63-25a-409,
taking into consideration the rates and amounts of reparation payable
for
injuries and death under other laws of this state and the United States;
(h)
advocate the adoption, repeal, or
modification of
laws or proposed legislation in the interest of victims of crime;
(i) allocate monies available in the Crime
Victim
Reparation Fund to victims of criminally injurious conduct for
reparations
claims; and
(j)
allocate monies available to other victim
services
as provided by administrative rule once a sufficient reserve has been
established for reparation claims.
(2) All rules, or other statements of policy,
along
with application forms specified by the board, are binding upon the
director,
the reparations officers, and other staff.
63-25a-407. Director -- Appointment and functions.
The executive director of the Commission on
Criminal
and Juvenile Justice, after consulting with the board, shall appoint a
director
to carry out the provisions of this chapter. The director shall be an
experienced administrator with a background in at least one of the
following
fields: social work, psychology, criminal justice, law, or a related
field. The
director shall demonstrate an understanding of the needs of crime
victims and
of services to victims. The director shall devote his time and capacity
to his
duties. The director shall:
(1) hire staff, including reparations
officers, as
necessary;
(2) act when necessary as a reparations
officer in
deciding initial claims;
(3) possess the same investigation and
decision-making
authority as the reparations officers;
(4) hear appeals from the decisions of the
reparations
officers, unless he acted as a reparations officer on the initial claim;
(5) serve as a liaison between the reparations
staff
and the Reparations Office;
(6) serve as the public relations
representative of
the Reparations Office;
(7) provide for payment of all administrative
salaries, fees, and expenses incurred by the staff of the board, to be
paid out
of appropriations from the fund;
(8) cooperate with the state treasurer and the
state
Division of Finance in causing the funds in the trust fund to be
invested and
its investments sold or exchanged and the proceeds and income collected;
(9) apply for, receive, allocate, disburse,
and
account for grants of funds made available by the United States, the
state,
foundations, corporations, and other businesses, agencies, or
individuals;
(10) obtain and utilize the services of other
governmental agencies upon request; and
(11) act in any other capacity or perform any
other
acts necessary for the Reparations Office or board to successfully
fulfill its
statutory objectives.
63-25a-408. Reparations officers.
The reparations officers shall in addition to
any
assignments made by the director of the Reparations Office:
(1) hear and determine all matters relating to
claims
for reparations and reinvestigate or reopen claims without regard to
statutes
of limitation or periods of prescription;
(2) obtain from prosecuting attorneys, law
enforcement
officers, and other criminal justice agencies, investigations and data
to
enable the reparations officer to determine whether and to what extent
a
claimant qualifies for reparations;
(3) hold hearings, administer oaths or
affirmations,
examine any person under oath or affirmation, issue subpoenas requiring
the
attendance and giving of testimony of witnesses, require the production
of any
books, papers, documents, or other evidence which may contribute to the
reparations officer's ability to determine particular reparation awards;
(4) determine who is a victim or dependent;
(5) award reparations or other benefits
determined to
be due under this chapter and the rules of the board;
(6) take notice of judicially recognized facts
and
general, technical, and scientific facts within their specialized
knowledge;
(7) advise and assist the board in developing
policies
recognizing the rights, needs, and interests of crime victims;
(8) render periodic reports as requested by
the board
concerning:
(a) the officers' activities; and
(b) the manner in which the rights,
needs, and
interests of crime victims are being addressed by the state's criminal
justice
system;
(9) establish priorities for assisting elderly
victims
of crime or those victims facing extraordinary hardships;
(10) cooperate with the Commission on Criminal
and
Juvenile Justice to develop information regarding crime victims'
problems and
programs; and
(11) assist the director in publicizing the
provisions
of the Crime Victims' Reparations Act, including the procedures for
obtaining
reparation, and in encouraging law enforcement agencies, health
providers, and
other related officials to take reasonable care to ensure that victims
are
informed about the provisions of this chapter and the procedure for
applying
for reparation.
63-25a-409. Grounds for eligibility.
In order to be eligible for a reparations
award under
this chapter:
(1) The claimant shall be:
(a) a victim of criminally injurious conduct;
(b) a
dependent of a deceased victim of
criminally
injurious conduct; or
(c) a representative acting on behalf of one
of the
above.
(2) The victim shall be either a resident of Utah or the criminally injurious conduct
shall have
occurred in Utah.
(3) The application shall be made in writing
in a form
that conforms substantially to that prescribed by the board.
(4) The criminally injurious conduct shall be
reported
to a law enforcement officer, in his capacity as a law enforcement
officer, or
other federal or state investigative agencies.
(5) (a) The claimant or victim shall cooperate
with
the appropriate law enforcement agencies in their efforts to apprehend
or
convict the perpetrator of the alleged offense.
(b) An
award to a victim may be made whether
any
person is arrested, prosecuted, or convicted of the criminally
injurious
conduct giving rise to the claim.
(6) The criminally injurious conduct shall
have
occurred after December 31, 1986.
63-25a-410. Ineligible persons -- Fraudulent claims
--
Penalties.
(1) The following individuals shall not be
eligible to
receive an award of reparations:
(a) persons who do not meet all of the
provisions set
forth in Section 63-25a-409;
(b) the
offender;
(c) an accomplice of the offender;
(d) any
person whose receipt of an award would
unjustly benefit the offender, accomplice, or other person reasonably
suspected
of participating in the offense;
(e) the victim of a motor vehicle injury who
was the
owner or operator of the motor vehicle and was not at the time of the
injury in
compliance with the state motor vehicle insurance laws;
(f) any
convicted offender serving a sentence
of
imprisonment for that conviction or residing in any other institution
which
provides for the maintenance of convicted persons; and
(g) residents of halfway houses or any other
correctional facilities and all persons who are on probation or parole
if the
circumstances surrounding the offense of which they are victims
constitute a
violation of their parole or probation.
(2) A person who knowingly submits a
fraudulent claim
for reparations or who knowingly misrepresents material facts in making
a
claim, and who receives an award based on that claim, is guilty of an
offense,
based on the following award amounts:
(a) for
value under $300, a class B
misdemeanor;
(b) for value equal to or greater than $300,
but less
than $1,000, a class A misdemeanor;
(c) for
value equal to or greater than $1,000,
but
less than $5,000, a third degree felony; and
(d) for value equal to or greater than $5,000,
a
second degree felony.
(3) A person who submits a claim described in
Subsection (2) but receives no award based on that claim is guilty of a
class B
misdemeanor.
(4) The state attorney general may prosecute
violations under this section or may make arrangements with county
attorneys
for the prosecution of violations under this section when the attorney
general
cannot conveniently prosecute.
(5) The state may also bring a civil action
against a
claimant who receives reparation payments that are later found to be
unjustified and who does not return to the board the unjustified
amount.
63-25a-411. Compensable losses and amounts.
A reparations award under this chapter may be
made if:
(1) the reparations officer finds the claim
satisfies
the requirements for the award under the provisions of this chapter and
the
rules of the board;
(2) monies are available in the fund;
(3) the person for whom the award of
reparations is to
be paid is otherwise eligible under this act;
(4) the claim is for an allowable expense
incurred by
the victim, as follows:
(a)
reasonable and necessary charges incurred
for
products, services, and accommodations;
(b) inpatient and outpatient medical treatment
and
physical therapy, subject to rules promulgated by the board pursuant to
Title
63, Chapter 46a, Utah Administrative Rulemaking Act;
(c)
mental health counseling which:
(i) is set forth in a mental health treatment
plan
which has been approved prior to any payment by a reparations officer;
and
(ii) qualifies within any further rules
promulgated by
the board pursuant to Title 63, Chapter 46a, Utah Administrative
Rulemaking
Act;
(d) actual loss of past earnings and
anticipated loss
of future earnings because of a death or disability resulting from the
personal
injury at a rate not to exceed 66-2/3% of the person's weekly gross
salary or
wages or the maximum amount allowed under the state workers'
compensation
statute;
(e)
care of minor children enabling a victim
or spouse
of a victim, but not both of them, to continue gainful employment at a
rate per
child per week as determined under rules established by the board;
(f) funeral and burial expenses for death
caused by
the criminally injurious conduct, subject to rules promulgated by the
board
pursuant to Title 63, Chapter 46a, Utah Administrative Rulemaking Act;
(g)
loss of support to the dependent or
dependents not
otherwise compensated for a pecuniary loss for personal injury, for as
long as
the dependence would have existed had the victim survived, at a rate
not to
exceed 66-2/3% of the person's weekly salary or wages or the maximum
amount
allowed under the state workers' compensation statute, whichever is
less;
(h) personal property necessary and essential
to the
health or safety of the victim as defined by rules promulgated by the
board
pursuant to Title 63, Chapter 46a, Utah Administrative Rulemaking Act;
and
(i)
medical examinations as defined in Section
63-25a-402,
subject to rules promulgated by the board pursuant to Title 63, Chapter
46a,
Utah Administrative Rulemaking Act, which may allow for exemptions from
Sections 63-25a-409, 63-25a-412, and 63-25a-413.
(5) If a Utah resident suffers injury or death as a
result of
criminally injurious conduct inflicted in a state, territory, or
country that
does not provide a reciprocal crime victims' compensation program, the Utah resident has the same rights under this
chapter
as if the injurious conduct occurred in this state.
(6) An award of reparations shall not exceed
$25,000
in the aggregate unless the victim is entitled to proceeds in excess of
that
amount as provided in Subsection 77-38a-403(2). However,
reparations for
actual medical expenses incurred as a result of homicide, attempted
homicide, aggravated assault, or DUI
offenses,
may be awarded up to $50,000 in the aggregate.
63-25a-412. Reparations reduction.
(1) Reparations otherwise payable to a
claimant may be
reduced or denied as follows:
(a) the economic loss upon which the claim is
based
has been or could be recouped from other persons, including collateral
sources,
and the victim was not entitled to nor receiving monies prior to the
criminally
injurious conduct giving rise to the claim under this chapter;
(b) the
reparations officer considers the
claim
unreasonable because of the misconduct of the claimant or of a victim
through
whom he claims; or
(c) the victim had not used a facility or
health care
provider that would be covered by a collateral source.
(2) When two or more dependents are entitled
to an
award as a result of a victim's death, the award shall be apportioned
by the
reparations officer among the dependents.
63-25a-413. Collateral sources.
(1) Collateral source shall include any source
of
benefits or advantages for economic loss otherwise reparable under this
chapter
which the victim or claimant has received, or which is readily
available to the
victim from:
(a) the
offender;
(b) the insurance of the offender;
(c) the
United States government or any of its
agencies, a state or any of its political subdivisions, or an
instrumentality
of two or more states, except in the case on nonobligatory state-funded
programs;
(d) social security, Medicare, and Medicaid;
(e) state-required temporary nonoccupational
income
replacement insurance or disability income insurance;
(f) workers' compensation;
(g) wage continuation programs of any employer;
(h)
proceeds of a contract of insurance
payable to the
victim for the loss he sustained because of the criminally injurious
conduct;
(i) a contract providing prepaid hospital and
other
health care services or benefits for disability; or
(j)
veteran's benefits, including veteran's
hospitalization benefits.
(2) (a) An order of restitution shall not be
considered readily available as a collateral source.
(b) Receipt of an award of reparations under
this
chapter shall be considered an assignment of the victim's rights to
restitution
from the offender.
(3) The victim shall not discharge a claim
against a
person or entity without the state's written permission and shall fully
cooperate with the state in pursuing its right of reimbursement,
including
providing the state with any evidence in his possession.
(4) The state's right of reimbursement applies
regardless of whether the victim has been fully compensated for his
losses.
(5) Notwithstanding the collateral source
provisions
in Subsection (1) and Subsection 63-25a-412(1)(a), a victim of
a sexual
offense who requests testing of himself may be reimbursed for the costs
of the
HIV test only as provided in Subsection 76-5-503(4).
63-25a-414. Notification of claimant -- Suspension
of
proceedings.
(1) The Reparations Office shall immediately
notify
the claimant in writing of any decision and shall forward to the
Division of
Finance a certified copy of the decision and a warrant request for the
amount
of the claim. The Division of Finance shall pay the claimant the amount
submitted to the division, out of the fund. If monies in the fund are
temporarily depleted, claimants entitled to receive awards shall be
placed on a
waiting list and shall receive their awards as funds are available in
the order
in which their claims were awarded.
(2) The reparations officer may suspend the
proceedings pending disposition of a criminal prosecution that has been
commenced or is imminent.
63-25a-415. Rules for contested claims -- Exemption
from
Administrative Procedures Act.
(1) Rules for procedures for contested
determinations
by a reparations officer shall be adopted pursuant to Title 63, Chapter
46a,
Utah Administrative Rulemaking Act.
(2) Crime Victims' Reparations is exempt from
Title
63, Chapter 46b, Administrative Procedures Act.
63-25a-416. Waiver of privilege.
(1) A victim filing a claim under the
provisions of
this chapter shall be considered to have waived any privilege as to
communications or records relevant to an issue of the physical, mental,
or
emotional conditions of the victim except for the attorney-client
privilege. The
waiver shall apply only to reparations officers, the director of
reparations,
the board, and legal counsel.
(2) The claimant may be required to supply any
additional medical or psychological reports available relating to the
injury or
death for which compensation is claimed.
(3) The reparations officer hearing a claim or
an
appeal from a claim shall make available to the claimant a copy of the
report.
If the victim is deceased, the director or his appointee, on request,
shall
furnish the claimant a copy of the report unless dissemination of that
copy is
prohibited by law.
63-25a-417. Additional testing.
(1) If the mental, physical, or emotional
condition of
a victim is material to a claim, the reparations officer, director, or
chair of
the board who hears the claim or the appeal may order the claimant to
submit to
a mental or physical examination by a physician or psychologist and may
recommend to the court to order an autopsy of a deceased victim.
(2) Any order for additional examination shall
be for
good cause shown and shall provide notice to the person to be examined
and his
representative.
(3) All reports from additional examinations
shall set
out findings, including results of all tests made, diagnoses,
prognoses, other
conclusions, and reports of earlier examinations of the same conditions.
(4) A copy of the report shall be made
available to
the victim or the representative of the victim unless dissemination of
that
copy is prohibited by law.
63-25a-418. Failure to comply.
If a person refuses to comply with an order
under this
chapter or asserts a privilege, except privileges arising from the
attorney-client relationship, to withhold or suppress evidence relevant
to a
claim, the director or reparations officer may make any appropriate
63-25a-419. Assignment of recovery -- Reimbursement.
(1) By accepting an award of reparations, the
victim
automatically assigns to the state, subject to the provisions of
Subsection
(2), all claims against any third party to the lesser of:
(a) the
amount paid by the state; or
(b) the amount recovered from the third party.
(2) The board, with the concurrence of the
director,
may reduce the state's right of reimbursement if it is determined that
the
reduction will benefit the fund.
(3) The state reserves the right to make a
claim for
reimbursement on behalf of the victim and the victim shall not impair
the
state's claim or the state's right of reimbursement.
63-25a-420. Special verdict -- Allocation of
damages.
In an action in a court of this state arising
out of
criminally injurious conduct, the judge, on timely motion, shall direct
the
jury to return a special verdict, indicating separately the awards to
noneconomic detriment, punitive damages, and economic loss.
63-25a-421. Award -- Payment methods -- Claims
against the
award.
(1) The reparations officer may provide for
the payment
of an award in a lump sum or in installments. The part of an award
equal to the
amount of economic loss accrued to the date of the award shall be paid
in a
lump sum. An award of allowable expense that would accrue after an
initial
award is made may not be paid in a lump sum. Except as provided in
Subsection
(2), the part of an award that may not be paid in a lump sum shall be
paid in
installments.
(2) At the request of the claimant, the
reparations
officer may convert future economic loss installment payments, other
than
allowable expense, to a lump sum payment, discounted to present value,
but only
upon a finding by the officer that the award in a lump sum will promote
the
interests of the claimant.
(3) An award for future economic loss payable
in
installments may be made only for a period for which the reparations
officer
can reasonably determine future economic loss. The reparations officer
may
reconsider and modify an award for future economic loss payable in
installments, upon his finding that a material and substantial change
of
circumstances has occurred.
(4) An award is not subject to execution,
attachment,
or garnishment, except that an award for allowable expense is not
exempt from a
claim of a creditor to the extent that he provided products, services,
or
accommodations, the costs of which are included in the award.
(5) An assignment or agreement to assign a
right to
reparations for loss accruing in the future is unenforceable, except:
(a) an
assignment of a right to reparations
for work
loss to secure payment of alimony, maintenance, or child support;
(b) an assignment of a right to reparations
for
allowable expense to the extent that the benefits are for the cost of
products,
services, or accommodations necessitated by the injury or death on
which the
claim is based and are provided or to be provided by the assignee; or
(c) an
assignment to repay a loan obtained to
pay for
the obligations or expenses described in Subsection (5) (a) or (b).
63-25a-422. Emergency award.
If the reparations officer determines that the
claimant will suffer financial hardship unless an emergency award is
made, and
it appears likely that a final award will be made, an amount may be
paid to the
claimant, to be deducted from the final award or repaid by and
recoverable from
the claimant to the extent that it exceeds the final award. The board
may limit
emergency awards to any amount it considers necessary.
63-25a-423. Review of award decision.
The reparations officer shall review at least
annually
every award being paid in installments. An order on review of an award
does not
require refund of amounts previously paid unless the award was obtained
by
fraud or a material mistake of fact.
63-25a-424. Attorney fees.
(1) The claims procedures shall be
sufficiently simple
that the assistance of an attorney is unnecessary, and no attorney fees
shall
be paid for the assistance of an attorney or any other representative
in filing
the claim or providing information to the reparations officer.
(2) Attorney fees may be granted in the
following
circumstances and shall be paid out of the reparations award not to
exceed 15%
of the amount of the reparations award:
(a) when an award has been denied and, after a
hearing, the decision to deny is overturned; or
(b) when
minor dependents of a deceased victim
require
assistance in establishing a trust or determining a guardian.
(3) An attorney or any other person providing
assistance in a reparations claim, who contracts for or receives sums
not
allowed under this chapter, is guilty of a class B misdemeanor. This
provision
shall not extend to attorneys who assist the victim in filing a civil
action
against the perpetrator.
63-25a-428. Purpose -- Not entitlement program.
(1) Crime Victims' Reparations is a program
with the
purpose to assist victims of criminally injurious conduct. Reparation
to a
victim is limited to the monies available in the fund.
(2) This program is not an entitlement
program. Awards
may be limited or denied as determined appropriate by the board.
Failure to
grant an award does not create a cause of action against Crime Victims'
Reparations, the state, or any of its subdivisions. There is no right
to
judicial review over the decision whether or not to grant an award.
(3) A cause of action based on a failure to
give or
receive the notice required by this chapter does not accrue to any
person
against the state, any of its agencies or local subdivisions, any of
their law
enforcement officers or other agents or employees, or any health care
or
medical provider or its agents or employees. The failure does not
affect or
alter any requirement for filing or payment of a claim.
top
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Utah
Crime Victims Restitution Act
77-38a-101. Title.
This chapter is known as the "Crime Victims
Restitution Act."
top
77-38a-102. Definitions.
As used in this chapter:
(1) "Conviction" includes a:
(a) judgment of guilt;
(b) a plea of
guilty; or
(c) a plea of no contest.
(2) "Criminal activities" means any offense
of which the defendant is convicted or any other criminal conduct for
which the
defendant admits responsibility to the sentencing court with or without
an
admission of committing the criminal conduct.
(3) "Department" means the Department of
Corrections.
(4) "Diversion" means suspending criminal
proceedings prior to conviction on the condition that a defendant agree
to
participate in a rehabilitation program, make restitution to the
victim, or
fulfill some other condition.
(5) "Party" means the prosecutor, defendant,
or department involved in a prosecution.
(6) "Pecuniary damages" means all
demonstrable economic injury, whether or not yet incurred, which a
person could
recover in a civil action arising out of the facts or events
constituting the
defendant's criminal activities and includes the fair market value of
property
taken, destroyed, broken, or otherwise harmed, and losses including
lost
earnings and medical expenses, but excludes punitive or exemplary
damages and
pain and suffering.
(7) "Plea agreement" means an agreement
entered between the prosecution and defendant setting forth the special
terms
and conditions and criminal charges upon which the defendant will enter
a plea
of guilty or no contest.
(8) "Plea in abeyance" means an order by a
court, upon motion of the prosecution and the defendant, accepting a
plea of
guilty or of no contest from the defendant but not, at that time,
entering
judgment of conviction against him nor imposing sentence upon him on
condition
that he comply with specific conditions as set forth in a plea in
abeyance
agreement.
(9) "Plea in abeyance agreement" means an
agreement entered into between the prosecution and the defendant
setting forth
the specific terms and conditions upon which, following acceptance of
the
agreement by the court, a plea may be held in abeyance.
(10) "Plea disposition" means an agreement
entered into between the prosecution and defendant including diversion,
plea
agreement, plea in abeyance agreement, or any agreement by which the
defendant
may enter a plea in any other jurisdiction or where charges are
dismissed
without a plea.
(11) "Restitution" means full, partial, or
nominal payment for pecuniary damages to a victim, including
prejudgment
interest, the accrual of interest from the time of sentencing, insured
damages,
reimbursement for payment of a reward, and payment for expenses to a
governmental
entity for extradition or transportation and as may be further defined
by law.
(12) (a) "Reward" means a sum of money:
(i) offered
to the public for information leading to
the arrest and conviction of an offender; and
(ii) that has been paid to a person or persons who
provide this information, except that the person receiving the payment
may not
be a codefendant, an accomplice, or a bounty hunter.
(b)
"Reward" does not include any amount
paid in excess of the sum offered to the public.
(13) "Screening" means the process used by a
prosecuting attorney to terminate investigative action,
proceed with
prosecution, move to dismiss a prosecution that has been commenced, or
cause a
prosecution to be diverted.
(14) (a) "Victim" means any person whom the
court determines has suffered pecuniary damages as a result of the
defendant's
criminal activities.
(b)
"Victim" may not include a codefendant
or accomplice.
top
77-38a-201. Restitution determination -- Law
enforcement
duties and responsibilities.
Any law enforcement agency conducting an investigation
for criminal conduct which would constitute a felony or class A
misdemeanor
shall provide in the investigative reports whether a claim for
restitution
exists, the basis for the claim, and the estimated or actual amount of
the
claim.
top
77-38a-202. Restitution determination --
Prosecution duties
and responsibilities.
(1) At the time of entry of a conviction or
entry of
any plea disposition of a felony or class A misdemeanor, the attorney
general,
county attorney, municipal attorney, or district attorney shall provide
to the
district court:
(a) the names of all victims,
including third parties,
asserting claims for restitution;
(b) the actual or estimated
amount of restitution
determined at that time; and
(c) whether or not the
defendant has agreed to pay the
restitution specified as part of the plea disposition.
(2) In computing actual or estimated
restitution, the
attorney general, county attorney, municipal attorney, or district
attorney
shall:
(a) use the
criteria set forth in Section 77-38a-302
for establishing restitution amounts; and
(b) in cases
involving multiple victims, incorporate
into any conviction or plea disposition all claims for restitution
arising out
of the investigation for which the defendant is charged.
(3) If charges are not to be prosecuted as
part of a
plea disposition, restitution claims from victims of those crimes shall
also be
provided to the court.
top
77-38a-203. Restitution determination -- Department
of
Corrections -- Presentence investigation.
(1) (a) The department shall prepare a presentence
investigation report in accordance with Subsection 77-18-1(5).
The
prosecutor and law enforcement agency involved shall provide all
available
victim information to the department upon request. The victim impact
statement
shall:
(i)
identify all victims of the offense;
(ii)
itemize any economic loss suffered by the victim
as a result of the offense;
(iii)
include for each identifiable victim a specific
statement of the recommended amount of complete restitution as defined
in
Section 77-38a-302, accompanied by a recommendation from the
department
regarding the payment by the defendant of court-ordered restitution
with
interest as defined in Section 77-38a-302;
(iv) identify any physical, mental, or emotional
injuries suffered by the victim as a result of the offense, and the
seriousness
and permanence;
(v) describe any change in the victim's personal
welfare or familial relationships as a result of the offense;
(vi) identify any request for mental health services
initiated by the victim or the victim's family as a result of the
offense; and
(vii) contain any other information related to the
impact of the offense upon the victim or the victim's family that the
court
requires.
(b) The crime
victim shall be responsible to provide
to the department upon request all invoices, bills, receipts, and other
evidence of injury, loss of earnings, and out-of-pocket loss. The crime
victim
shall also provide upon request:
(i) all documentation and evidence of compensation or
reimbursement from insurance companies or agencies of the state of
Utah, any
other state, or federal government received as a direct result of the
crime for
injury, loss, earnings, or out-of-pocket loss; and
(ii) proof
of identification, including date of birth,
Social Security number, drivers license number, next of kin, and home
and work
address and telephone numbers.
(c) The inability, failure, or
refusal of the crime
victim to provide all or part of the requested information shall result
in the
court determining restitution based on the best information available.
(2) (a) The court shall order the defendant as
part of
the presentence investigation to submit to the department any
information determined
necessary to be disclosed for the purpose of ascertaining the
restitution.
(b) The willful
failure or refusal of the defendant to
provide all or part of the requisite information shall constitute a
waiver of
any grounds to appeal or seek future amendment or alteration of the
restitution
order predicated on the undisclosed information.
(c) If the defendant objects to
the imposition,
amount, or distribution of the restitution recommended in the
presentence
investigation, the court shall set a hearing date to resolve the matter.
(d) If any party
fails to challenge the accuracy of
the presentence investigation report at the time of sentencing, that
matter
shall be considered to be waived.
top
77-38a-301. Restitution -- Convicted defendant may
be
required to pay.
In a
criminal action, the court may require a
convicted defendant to make restitution.top
77-38a-302. Restitution criteria. (1) When a
defendant is convicted of criminal
activity
that has resulted in pecuniary damages, in addition to any other
sentence it
may impose, the court shall order that the defendant make restitution
to
victims of crime as provided in this chapter, or for conduct for which
the
defendant has agreed to make restitution as part of a plea disposition.
For
purposes of restitution, a victim has the meaning as defined in
Subsection 77-38a-102(14)
and in determining whether restitution is appropriate, the court shall
follow
the criteria and procedures as provided in Subsections (2) through (5).
(2) In determining restitution, the court
shall
determine complete restitution and court-ordered restitution.
(a) "Complete restitution"
means restitution
necessary to compensate a victim for all losses caused by the defendant.
(b) "Court-ordered restitution"
means the
restitution the court having criminal jurisdiction orders the defendant
to pay
as a part of the criminal sentence at the time of sentencing or within
one year
after sentencing.
(c) Complete restitution and
court-ordered restitution
shall be determined as provided in Subsection (5).
(3) If the court determines that restitution
is
appropriate or inappropriate under this part, the court shall make the
reasons
for the decision part of the court record.
(4) If the defendant objects to the
imposition,
amount, or distribution of the restitution, the court shall allow the
defendant
a full hearing on the issue.
(5) (a) For the purpose of determining
restitution for
an offense, the offense shall include any criminal conduct admitted by
the
defendant to the sentencing court or to which the defendant agrees to
pay
restitution. A victim of an offense that involves as an element a
scheme, a
conspiracy, or a pattern of criminal activity, includes any person
directly
harmed by the defendant's criminal conduct in the course of the scheme,
conspiracy, or pattern.
(b) In
determining the monetary sum and other
conditions for complete restitution, the court shall consider all
relevant
facts, including:
(i) the
cost of the damage or loss if the offense
resulted in damage to or loss or destruction of property of a victim of
the
offense;
(ii) the
cost of necessary medical and related
professional services and devices relating to physical or mental health
care,
including nonmedical care and treatment rendered in accordance with a
method of
healing recognized by the law of the place of treatment;
(iii) the
cost of necessary physical and occupational
therapy and rehabilitation;
(iv) the
income lost by the victim as a result of the
offense if the offense resulted in bodily injury to a victim;
(v) up to
five days of the individual victim's
determinable wages that are lost due to theft of or damage to tools or
equipment items of a trade that were owned by the victim and were
essential to
the victim's current employment at the time of the offense; and
(vi) the
cost of necessary funeral and related
services if the offense resulted in the death of a victim.
(c) In determining the monetary
sum and other
conditions for court-ordered restitution, the court shall consider the
factors
listed in Subsections (5)(a) and (b) and:
(i) the financial resources of the defendant and the
burden that payment of restitution will impose, with regard to the
other
obligations of the defendant;
(ii) the ability of the defendant to pay restitution on an installment
basis or
on other conditions to be fixed by the court;
(iii) the
rehabilitative effect on the defendant of
the payment of restitution and the method of payment; and
(iv) other
circumstances which the court determines
may make restitution inappropriate.
(d) (i) Except as provided in
Subsection (5)(d)(ii),
the court shall determine complete restitution and court-ordered
restitution,
and shall make all restitution orders at the time of sentencing if
feasible,
otherwise within one year after sentencing.
(ii) Any pecuniary damages that have not been determined
by the court within one year after sentencing may be determined by the
Board of
Pardons and Parole.
(e) The Board of Pardons and
Parole may, within one
year after sentencing, refer an order of judgment and commitment back
to the
court for determination of restitution.
top
77-38a-401. Entry of judgment -- Interest -- Civil
actions
-- Lien. (1) Upon
the court determining that a defendant owes
restitution, the clerk of the court shall enter an order of complete
restitution as defined in Section 77-38a-302 on the civil
judgment
docket and provide notice of the order to the parties.
(2) The order shall be considered a legal
judgment,
enforceable under the Utah Rules of Civil Procedure. In addition, the
department may, on behalf of the person in whose favor the restitution
order is
entered, enforce the restitution order as judgment creditor under the
Utah
Rules of Civil Procedure.
(3) If the defendant fails to obey a court
order for
payment of restitution and the victim or department elects to pursue
collection
of the order by civil process, the victim shall be entitled to recover
reasonable attorney's fees.
(4) A judgment ordering restitution when
recorded in a
registry of judgments docket shall have the same affect and is subject
to the
same rules as a judgment in a civil action. Interest shall accrue on
the amount
ordered from the time of sentencing, including prejudgment interest.
(5) The department shall make rules permitting
the
restitution payments to be credited to principal first and the
remainder of
payments credited to interest in accordance with Title 63, Chapter 46a,
Utah
Administrative Rulemaking Act.
top
77-38a-402. Nondischargeability in bankruptcy.
Restitution imposed under this chapter and interest
accruing in accordance with Subsection 77-38a-401(4) is
considered a
debt and may not be discharged in bankruptcy.
top
77-38a-403. Civil action by victim for damages.
(1) Provisions in this part concerning restitution do
not limit or impair the right of a person injured by a defendant's
criminal
activities to sue and recover damages from the defendant in a civil
action.
Evidence that the defendant has paid or been ordered to pay restitution
under
this part may not be introduced in any civil action arising out of the
facts or
events which were the basis for the restitution. However, the court
shall
credit any restitution paid by the defendant to a victim against any
judgment
in favor of the victim in the civil action.
(2) If conviction in a criminal trial
necessarily
decides the issue of a defendant's liability for pecuniary damages of a
victim,
that issue is conclusively determined as to the defendant if it is
involved in
a subsequent civil action.
top
77-38a-404. Priority. (1) If
restitution to more than one person, agency, or
entity is set at the same time, the department shall establish the
following
priorities of payment, except as provided in Subsection (3):
(a) the crime
victim;
(b) the Office of Crime Victim
Reparations;
(c) any other government agency
which has provided
reimbursement to the victim as a result of the offender's criminal
conduct;
(d) the person,
entity, or governmental agency that
has offered and paid a reward under Section 76-3-201.1 or 78-3a-118;
(e) any insurance company which
has provided
reimbursement to the victim as a result of the offender's criminal
conduct; and
(f) any county correctional
facility to which the
court has ordered the defendant to pay restitution under Subsection
76-3-201(6).
(2) Restitution ordered under Subsection
(1)(f) is
paid after criminal fines and surcharges are paid.
(3) If the offender is required under Section
53-10-404
to reimburse the department for the cost of obtaining the offender's
DNA
specimen, this reimbursement is the next priority after restitution to
the
crime victim under Subsection (1)(a).
(4) All money collected for court-ordered
obligations
from offenders by the department will be applied:
(a) first, to
victim restitution, except the $30 per
month required to be collected by the department under Section
64-13-21,
if applicable; and
(b) second, if applicable, to
the cost of obtaining a
DNA specimen under Subsection (3).
top
77-38a-501. Default and sanctions. (1) When
a defendant defaults in the payment of a
judgment for restitution or any installment ordered, the court, on
motion of
the prosecutor, parole or probation agent, victim, or on its own motion
may
impose sanctions against the defendant as provided in Section
76-3-201.1.
(2) The court may not impose a sanction
against the
defendant under Subsection (1) if:
(a) the
defendant's sole default in the payment of a
judgement for restitution is the failure to pay restitution ordered
under
Subsection 76-3-201(6) regarding costs of incarceration in a
county
correctional facility; and
(b) the sanction would extend
the defendant's term of
probation or parole.top
77-38a-502. Collection from inmate offenders.
In addition to the remedies provided in Section 77-38a-501,
the department upon written request of the prosecutor, victim, or
parole or
probation agent, shall collect restitution from offender funds held by
the department
as provided in Section 64-13-23.
top
77-38a-601. Preservation of assets.
(1) At the time a criminal information,
indictment
charging a violation, or a petition alleging delinquency is filed, or
at any
time during the prosecution of the case, a prosecutor may petition the
court to
enter a restraining order or injunction, require the execution of a
satisfactory performance bond, or take any other action to preserve the
availability of property which may be necessary to satisfy an
anticipated
restitution order if, in the prosecutor's best judgement, there is a
substantial likelihood that a conviction will be obtained and
restitution will
be ordered.
(a) Upon receiving a petition
from a prosecutor under
this Subsection (1), and after notice and a hearing, the court may
enter a
restraining order or injunction, require the execution of a
satisfactory
performance bond, or take any action necessary to preserve the
availability of
property which may be necessary to satisfy an anticipated restitution
order.
(b) An order entered under this
Subsection (1) is
effective for up to 90 days, unless extended by the court for good
cause shown.
(2) Prior to the filing of a criminal
information,
indictment charging a violation, or a petition alleging delinquency, a
prosecutor may petition the court to enter a restraining order or
injunction,
require the execution of a satisfactory performance bond, or take any
other
action to preserve the availability of property which may be necessary
to
satisfy an anticipated restitution order if, in the prosecutor's best
judgement, there is a substantial likelihood that a conviction will be
obtained
and restitution will be ordered.
(a) Upon
receiving a request from a prosecutor under
this Subsection (2), the court may enter a restraining order or
injunction,
require the execution of a satisfactory performance bond, or take any
action
necessary to preserve the availability of property which may be
necessary to satisfy
an anticipated restitution order after notice to persons appearing to
have an
interest in the property and affording them an opportunity to be heard,
if the
court determines that:
(i) there
is probable cause to believe that a crime
has been committed and that the defendant committed it, and that
failure to
enter the order will result in the property being sold, distributed,
exhibited,
destroyed, or removed from the jurisdiction of the court, or otherwise
be made
unavailable for restitution; and
(ii) the
need to preserve the availability of the
property or prevent its sale, distribution, exhibition, destruction, or
removal
through the entry of the requested order outweighs the hardship on any
party
against whom the order is to be entered.
(b) An order entered under this
Subsection (2) is
effective for the period of time given in the order.
(3) (a) Upon receiving a request from a
prosecutor
under Subsection (2), and notwithstanding Subsection (2)(a)(i), a court
may
enter a temporary restraining order against an owner with respect to
specific
property without notice or opportunity for a hearing if:
(i) the prosecutor demonstrates that there is a
substantial likelihood that the property with respect to which the
order is
sought appears to be necessary to satisfy an anticipated restitution
order
under this chapter; and
(ii) that
provision of notice would jeopardize the
availability of the property to satisfy any restitution order or
judgment.
(b) The temporary order in this
Subsection (3) expires
not more than ten days after it is entered unless extended for good
cause shown
or the party against whom it is entered consents to an extension.
(4) A hearing concerning an order entered
under this
section shall be held as soon as possible, and prior to the
expiration
of the temporary order.
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