77-11c-302. Requirements for not retaining evidence of felony offense -- Preservation of sufficient evidence.

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A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

Effective 5/1/2024

(1)An agency is not required to retain evidence of a felony offense under Section 77-11c-301 if:

(i)the agency determines that:

(A)the size, bulk, or physical character of the evidence renders retention impracticable or the evidence poses a security or safety problem for the agency; and

(B)the evidence no longer has any significant evidentiary value;

(ii)the agency preserves sufficient evidence from the property, contraband, item, or substance for use as evidence in a prosecution of the offense; and

(iii)a prosecuting attorney or a court authorizes the agency to return or dispose of the evidence as described in Subsection 77-11c-303 ;

(b)a court orders the agency to return evidence that is property to a claimant under Section 77-11a-305 ; or

(c)the evidence is wildlife or parts of wildlife.

(2)Notwithstanding Subsection (1), the agency may not dispose of evidence of a felony offense that is a sexual assault kit before the day on which the time period described in Section 77-11c-301 expires if:

(a)the agency sends a notice to the victim in accordance with Section 53-10-905 ; and

(b)the victim submits a written request for retention of the evidence within the 180-day period described in Section 53-10-905 .

(3)Subsection

(1)does not require an agency to return or dispose of evidence of a felony offense.

(4)Subsection

(1)does not apply to biological evidence of a violent felony offense because an agency is required to retain biological evidence of a violent felony offense as described in Part 4, Preservation of Biological Evidence for Violent Felony Offenses.

(5)If the evidence described in Subsection

(1)is a controlled substance, an agency shall preserve sufficient evidence under Subsection (1)(a)(ii) of the controlled substance by:

(a)collecting and preserving a sample of the controlled substance for independent testing and use as evidence;

(b)taking a photographic or video record of the controlled substance with identifying case numbers;

(c)maintaining a written report of a chemical analysis of the controlled substance if a chemical analysis was performed by the agency;

(d)if the controlled substance exceeds 10 pounds, retaining at least one pound of the controlled substance that is randomly selected from the controlled substance; and

(e)for a violent felony offense, collecting and preserving biological evidence from the controlled substance as described in Section 77-11c-401 .

(6)If the evidence described in Subsection

(1)is drug paraphernalia, an agency shall preserve sufficient evidence under Subsection (1)(a)(ii) of the drug paraphernalia by:

(a)collecting and preserving a sample of the controlled substance from the drug paraphernalia for independent testing and use as evidence;

(b)maintaining a written report of a chemical analysis of the drug paraphernalia if a chemical analysis was performed by the agency;

(c)taking a photographic or video record of the drug paraphernalia with identifying case numbers; and

(d)for a violent felony offense, collecting and preserving biological evidence from the drug paraphernalia as described in Section 77-11c-401 .

(7)If the evidence described in Subsection

(1)is a computer, the agency shall preserve sufficient evidence under Subsection (1)(a)(ii) of the computer by:

(a)extracting all data from the computer that would be evidence in a prosecution of an individual for the offense;

(b)taking a photographic or video record of the computer with identifying case numbers; and

(c)for a violent felony offense, collecting and preserving biological evidence from the computer as described in Section 77-11c-401 .

(8)For any other type of evidence, the agency shall preserve sufficient evidence under Subsection (1)(a)(ii) of the property, contraband, item, or substance by:

(a)taking a photographic or video record of the property, contraband, item, or substance with identifying case numbers; and

(b)for a violent felony offense, collecting and preserving biological evidence as described in Section 77-11c-401 .

Enacted by Chapter 150 , 2024 General Session