HB 253 — Marijuana Use or Possession Penalty Amendments

- 12 - HB0253S01 compared with HB0253S02 (17) If any provision of this chapter, or the application of any provision to any person or circumstances, is held invalid, the remainder of this chapter shall be given effect without the invalid provision or application.

- 13 - HB0253 compared with HB0253S02 (c) data reported to the division under Subsection 41-6a-502(5) or 41-6a-502.5(5)(b) regarding convictions for driving under the influence of a prescribed controlled substance or impaired driving;

- 13 - HB0253S01 compared with HB0253S02 (6) The division shall maintain the database in an electronic file or by other means established by the division to facilitate use of the database for identification of:

(1) - 14 - HB0253 compared with HB0253S02 (a) The division, except as otherwise provided by law, shall supervise a sentenced offender placed in the community if the offender:

or - 14 - HB0253S01 compared with HB0253S02 (C) is accepted for supervision under the terms of the Interstate Compact for the Supervision of Parolees and Probationers;

- 15 - HB0253 compared with HB0253S02 (3) The division shall implement a program of graduated incentives as established in the adult sentencing and supervision length guidelines, as defined in Section 63M-7-401.1 to facilitate the department's prompt and appropriate response to an offender's:

(4) - 15 - HB0253S01 compared with HB0253S02 (a) The department shall, in collaboration with the State Commission on Criminal and Juvenile Justice and the Division of Substance Use and Mental Health, create standards and procedures for the collection of information, including cost savings related to recidivism reduction and the reduction in the number of inmates, related to the use of the graduated and evidence-based responses and graduated incentives, and offenders' outcomes.

(b) - 16 - HB0253 compared with HB0253S02 (i) The department shall make rules in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, specifying the criteria for suspension or waiver of the supervision fee and the circumstances under which an offender may request a hearing.

- 16 - HB0253S01 compared with HB0253S02 (c) The division shall deposit money received from the monthly supervision fee established in this Subsection (6) into the General Fund as a parole and probation dedicated credit to be used to cover costs incurred in the collection of the fee and in the development of offender supervision programs.

- 17 - HB0253 compared with HB0253S02 (iv) This Subsection (7)(b) does not prohibit the division, or another supervision services provider, from requesting termination of supervision based on the eligibility criteria in the adult sentencing and supervision length guidelines, as defined in Section 63M-7-401.1.

and - 17 - HB0253S01 compared with HB0253S02 (ii) request from the court or the Board of Pardons and Parole the termination of probation or parole not fewer than 30 days [prior to] before the termination date that reflects the credits earned under this Subsection (7).

- 18 - HB0253 compared with HB0253S02 (A) is at a high risk of reoffending;

(b) For an offender described in Subsection (8)(a), at any time clinically appropriate or at least three months before termination of an offender's parole or expiration of an offender's sentence, the department shall coordinate with the Department of Health and Human Services and the relevant - 18 - HB0253S01 compared with HB0253S02 local mental health authority to provide applicable clinical assessments and transitional treatment planning and services for the offender so that the offender may receive appropriate treatment and support services after the termination of parole or expiration of sentence.

- 19 - HB0253 compared with HB0253S02 (c) "Drug offense" means an offense described in:

or - 19 - HB0253S01 compared with HB0253S02 (v) Title 58, Chapter 37d, Clandestine Drug Lab Act.

(5) - 20 - HB0253 compared with HB0253S02 (a) Except as provided in Subsection (5)(b), if an individual enters a deferred plea of no contest as described in Subsection (3)(d) and is not convicted of another drug offense during the deferral period:

- 20 - HB0253S01 compared with HB0253S02 (ii) the court may not enter judgment of conviction against the individual or impose a sentence for the eligible marijuana offense;

Section 1.

Section 1 is enacted to read:

77-2a-1.5.

Offer of a plea in abeyance for certain marijuana offenses.

(1) As used in this section:

(a) (i) "Convicted" means:

(A) having entered a plea of guilty, a plea of no contest, or a plea of guilty with a mental condition;

or (B) having received a judgment of guilty or a judgment of guilty with a mental condition.

(ii) "Convicted" does not include:

(A) an adjudication of an offense under Section 80-6-701;

or (B) a traffic offense.

(b) "Traffic offense" means the same as that term is defined in Section 77-40a-1.

(2) A prosecuting attorney shall offer a plea in abeyance to a defendant if:

(a) the individual has never been convicted of an offense;

- 21 - HB0253S01 compared with HB0253S02 (b) the individual is charged with a class B misdemeanor offense for the use or possession of marijuana under Subsection 58-37-8(2)(d)(i);

(c) the amount of marijuana that forms the basis of the charge described in Subsection (2)(b) is 14 grams or less;

and (d) the individual was 18 years old or older at the time of the offense.

(3) A plea in abeyance under this section is subject to Subsection 77-2a-2(6)(b).

{Section 2.

Section 77-2a-2 is amended to read:

} 77-2a-2.

Plea in abeyance agreement -- Negotiation -- Contents -- Terms of agreement -- Waiver of time for sentencing.

(1) At any time after acceptance of a plea of guilty or no contest but before entry of judgment of conviction and imposition of sentence, [the court may,] and upon motion of both the prosecuting attorney and the defendant, the court may hold the plea in abeyance and not enter judgment of conviction against the defendant nor impose sentence upon the defendant within the time periods contained in [Rule 22(a),] the Utah Rules of Criminal Procedure, Rule 22(a).

(2) A defendant shall be represented by counsel during negotiations for a plea in abeyance and at the time of acknowledgment and affirmation of any plea in abeyance agreement unless the defendant knowingly and intelligently waives the defendant's right to counsel.

(3) A defendant has the right to be represented by counsel at any court hearing relating to a plea in abeyance agreement.

(4) (a) [Any] Subject to Subsection (6), a plea in abeyance agreement entered into between the prosecution and the defendant and approved by the court shall[, subject to Subsection (7),] include a full, detailed recitation of the requirements and conditions agreed to by the defendant and the reason for requesting the court to hold the plea in abeyance.

(b) If the plea is to a felony or any combination of misdemeanors and felonies, the agreement shall be in writing and shall, before acceptance by the court, be executed by the prosecuting attorney, the defendant, and the defendant's counsel in the presence of the court.

(5) (a) Except as provided in [Subsection (5)(b)] Subsections (5)(b) and (5)(c), a plea may not be held in abeyance for a period longer than 18 months if the plea is to any class of misdemeanor or longer - 22 - HB0253S01 compared with HB0253S02 than three years if the plea is to any degree of felony or to any combination of misdemeanors and felonies.

(b) (i) For a plea in abeyance agreement that the Division of Adult Probation and Parole created in Section 64-14-202 supervises, the plea may not be held in abeyance for a period longer than the initial term of probation required under the adult sentencing and supervision length guidelines, as defined in Section 63M-7-401.1, if the initial term of probation is shorter than the period required under Subsection (5)(a).

(ii) Subsection (5)(b)(i) does not:

(A) apply to a plea that is held in abeyance in a drug court created under Title 78A, Chapter 5, Part 2, Drug Court, or a problem solving court approved by the Judicial Council;

or (B) prohibit court supervision of a plea in abeyance agreement after the day on which the Division of Adult Probation and Parole supervision described in Subsection (5)(b)(i) ends and before the day on which the plea in abeyance agreement ends.

[(6)] (c) [Notwithstanding Subsection (5), a] A plea may be held in abeyance for up to two years if the plea is to any class of misdemeanor and the plea in abeyance agreement includes a condition that the defendant participate in a problem solving court approved by the Judicial Council.

[(7)] (6) (a) A plea in abeyance agreement may not:

[(a)] (i) be approved unless the defendant, before the court, and any written agreement, knowingly and intelligently waives time for sentencing as designated in [Rule 22(a),] the Utah Rules of Criminal Procedure, Rule 22(a);

or [(b)] (ii) notwithstanding any other provision of law, include as part of the requirements and conditions agreed to by the defendant that the defendant will forfeit a firearm owned by the defendant if the offense the defendant will plea to is not an offense that would make the defendant a restricted person under Section 76-11-302 or 76-11-303 or federal law.

(b) For a plea in abeyance described in Section 77-2a-1.5, the plea in abeyance agreement:

(i) except as provided in Subsection (6)(b)(ii), may include any term as determined by the parties;

and (ii) if the plea in abeyance agreement includes a term of incarceration, shall require that the term of incarceration be suspended.

- 23 - HB0253S01 compared with HB0253S02 77-11b-102.

- 21 - HB0253 compared with HB0253S02 (2) If seized property is used to facilitate an offense that is a violation of Section 76-5c-202, 76-5c-203, 76-5c-204, 76-5c-205, 76-5c-206, or 76-5c-305, an agency may not forfeit the property if the forfeiture would constitute a prior restraint on the exercise of an affected party's rights under the First Amendment to the Constitution of the United States or Utah Constitution, Article I, Section 15, or would otherwise unlawfully interfere with the exercise of the party's rights under the First Amendment to the Constitution of the United States or Utah Constitution, Article I, Section 15.

- 24 - HB0253S01 compared with HB0253S02 (B) Section 41-6a-517;

or - 22 - HB0253 compared with HB0253S02 (H) a criminal prohibition as a result of a plea bargain after having been originally charged with violating one or more of the sections or ordinances described in Subsections (3)(b)(i)(A) through (G);

- 25 - HB0253S01 compared with HB0253S02 (3) "Bureau" means the Bureau of Criminal Identification of the Department of Public Safety established in Section 53-10-201.

- 23 - HB0253 compared with HB0253S02 (8) "Clean slate eligible case" means a case that is eligible for automatic expungement under Section 77-40a-205.

- 26 - HB0253S01 compared with HB0253S02 (i) sealing the record;

(19) - 24 - HB0253 compared with HB0253S02 (a) "Minor regulatory offense" means a class B or C misdemeanor offense or a local ordinance.

- 27 - HB0253S01 compared with HB0253S02 (ii) an infraction, a class B misdemeanor offense, or a class C misdemeanor offense under Title 41, Chapter 6a, Traffic Code;

and - 25 - HB0253 compared with HB0253S02 (vi) all local ordinances that are substantially similar to an offense listed in Subsections (24)(a)(i) through (iii).

{Section 5.

Section 77-40a-205 is amended to read:

} 77-40a-205.

Automatic expungement of state records for a clean slate case.

(1) A court shall issue an order of expungement, without the filing of a petition, for all records of the case that are held by the court and the bureau if:

(a) on and after October 1, 2024, but before January 1, 2026, the individual submitted a form requesting expungement of a case as described in Section 77-40a-204;

(b) the case is eligible for expungement under this section;

and (c) the prosecuting agency does not object to the expungement of the case as described in Subsection (6).

(2) Except as otherwise provided in Subsection (3), a case is eligible for expungement under this section if:

(a) (i) each conviction within the case is a conviction for:

(A) [a] an infraction or a misdemeanor offense for possession of a controlled substance in violation of Subsection 58-37-8(2)(a)(i);

(B) a class B misdemeanor offense;

(C) a class C misdemeanor offense;

or (D) an infraction;

and (ii) the following time periods have passed after the day on which the individual is adjudicated:

(A) at least five years for the conviction of a class C misdemeanor offense or an infraction;

- 26 - HB0253 compared with HB0253S02 (B) at least six years for the conviction of a class B misdemeanor offense;

or (C) at least seven years for the conviction of a class A misdemeanor offense for possession of a controlled substance in violation of Subsection 58-37-8(2)(a)(i);

or (b) (i) the case is dismissed as a result of a successful completion of a plea in abeyance agreement governed by Subsection 77-2a-3(2)(b) or the case is dismissed without prejudice;

(ii) each charge within the case is:

(A) [a] an infraction or a misdemeanor offense for possession of a controlled substance in violation of Subsection 58-37-8(2)(a)(i);

(B) a class B misdemeanor offense;

(C) a class C misdemeanor offense;

or (D) an infraction;

and (iii) the following time periods have passed after the day on which the case is dismissed:

(A) at least five years for a charge in the case for a class C misdemeanor offense or an infraction;

(B) at least six years for a charge in the case for a class B misdemeanor offense;

or (C) at least seven years for a charge in the case for a class A misdemeanor offense for possession of a controlled substance in violation of Subsection 58-37-8(2)(a)(i).

(3) A case is not eligible for expungement under this section if:

(a) the individual has a total number of convictions in courts of this state that exceed the limits under Subsection 77-40a-303(4) or (5) without taking into consideration:

(i) the exception in Subsection 77-40a-303(7);

or (ii) any infraction, traffic offense, or minor regulatory offense;

(b) there is a criminal proceeding for a misdemeanor or felony offense pending in a court of this state against the individual, unless the proceeding is for a traffic offense;

(c) for an individual seeking an automatic expungement on and after January 1, 2025, the individual is incarcerated in the state prison or on probation or parole that is supervised by the Division of Adult Probation and Parole created in Section 64-14-202;

(d) the case resulted in the individual being found not guilty by reason of insanity;

(e) the case establishes a criminal accounts receivable that:

(i) has been entered as a civil accounts receivable or a civil judgment of restitution and transferred to the Office of State Debt Collection under Section 77-18-114;

or - 27 - HB0253 compared with HB0253S02 (ii) has not been satisfied according to court records;

or (f) the case resulted in a plea held in abeyance or a conviction for the following offenses:

(i) any of the offenses listed in Subsection 77-40a-303(2)(a);

(ii) an offense against the person in violation of Title 76, Chapter 5, Offenses Against the Individual;

(iii) a weapons offense in violation of Title 76, Chapter 11, Weapons;

(iv) sexual battery in violation of Section 76-5-418;

(v) an act of lewdness in violation of Section 76-5-419 or 76-5-420;

(vi) an offense in violation of Title 41, Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving;

(vii) damage to or interruption of a communication device in violation of Section 76-6-108;

(viii) a domestic violence offense as defined in Section 77-36-1;

(ix) driving under the influence of alcohol, drugs, or a combination of both, or with specified or unsafe blood alcohol concentration, as codified before February 2, 2005, Laws of Utah 2005, Chapter 2;

or (x) any other offense classified in the Utah Code as a felony or a class A misdemeanor other than a class A misdemeanor conviction for possession of a controlled substance in violation of Subsection 58-37-8(2)(a)(i).

(4) A prosecuting agency that has complied with Rule 42 of the Utah Rules of Criminal Procedure shall receive notice on a monthly basis for any case prosecuted by that agency that appears to be eligible for automatic expungement under this section.

(5) Within 35 days after the day on which the notice described in Subsection (4) is sent, the prosecuting agency shall provide written notice in accordance with Rule 42 of the Utah Rules of Criminal Procedure if the prosecuting agency objects to an automatic expungement for any of the following reasons:

(a) the prosecuting agency believes that the case is not eligible for expungement under this section after reviewing the agency record;

(b) the individual has not paid restitution to the victim as ordered by the court;

or (c) the prosecuting agency has a reasonable belief, grounded in supporting facts, that an individual involved in the case is continuing to engage in criminal activity within or outside of the state.

(6) If a prosecuting agency provides written notice of an objection for a reason described in Subsection (5) within 35 days after the day on which the notice under Subsection (4) is sent, the court may not proceed with automatic expungement of the case.

- 28 - HB0253 compared with HB0253S02 (7) If 35 days pass after the day on which the notice described in Subsection (4) is sent without the prosecuting agency providing written notice of an objection under Subsection (5), the court shall proceed with automatic expungement of the case.

(8) If a court issues an order of expungement under Subsection (1), the court shall:

(a) expunge all records of the case held by the court in accordance with Section 77-40a-401;

and (b) notify the bureau and the prosecuting agency identified in the case, based on information available to the court, of the order of expungement.

- 28 - HB0253S01 compared with HB0253S02 (3) Money shall be appropriated from the account to the Administrative Office of the Courts to be used for: