77-11c - Retention of Evidence

Title 77 > 77-11c

Sections (12)

General Provisions

77-11c-101 - Definitions.

As used in this chapter:

(1) “Acquitted” means the same as that term is defined in Section 77-11b-101.

(2) “Adjudicated” means that:a judgment of conviction by plea or verdict of an offense has been entered by a court; anda sentence has been imposed by the court; ora judgment has been entered for an adjudication of an offense by a juvenile court under Section 80-6-701.

(3) “Adjudication” means:a judgment of conviction by plea or verdict of an offense; oran adjudication for an offense by a juvenile court under Section 80-6-701.

(4) “Agency” means the same as that term is defined in Section 77-11a-101.

(5) “Appellate court” means the Utah Court of Appeals, the Utah Supreme Court, or the United States Supreme Court.

(6) “Biological evidence” means an item that contains blood, semen, hair, saliva, epithelial cells, latent fingerprint evidence that may contain biological material suitable for DNA testing, or other identifiable human biological material that:is collected as part of an investigation or prosecution of a violent felony offense; andmay reasonably be used to incriminate or exculpate a person for the violent felony offense.”Biological evidence” includes:material that is catalogued separately, including:on a slide or swab; orinside a test tube, if the evidentiary sample that previously was inside the test tube has been consumed by testing;material that is present on other evidence, including clothing, a ligature, bedding, a drinking cup, a cigarette, or a weapon, from which a DNA profile may be obtained;the contents of a sexual assault kit; andfor a violent felony offense, material described in this Subsection (6) that is in the custody of an evidence collecting or retaining entity on May 4, 2022.

(7) “Claimant” means the same as that term is defined in Section 77-11a-101.

(8) “Computer” means the same as that term is defined in Section 77-11a-101.

(9) “Continuous chain of custody” means:for a law enforcement agency or a court, that legal standards regarding a continuous chain of custody are maintained; andfor an entity that is not a law enforcement agency or a court, that the entity maintains a record in accordance with legal standards required of the entity.

(10) “Contraband” means the same as that term is defined in Section 77-11a-101.

(11) “Controlled substance” means the same as that term is defined in Section 58-37-2.

(12) “Court” means a municipal, county, or state court.

(13) “DNA” means deoxyribonucleic acid.

(14) “DNA profile” means a unique identifier of an individual derived from DNA.

(15) “Drug paraphernalia” means the same as that term is defined in Section 58-37a-3.

(16) “Evidence” means property, contraband, or an item or substance that:is seized or collected as part of an investigation or prosecution of an offense; andmay reasonably be used to incriminate or exculpate an individual for an offense.

(17) “Evidence collecting or retaining entity” means an entity within the state that collects, stores, or retrieves biological evidence.”Evidence collecting or retaining entity” includes:a medical or forensic entity;a law enforcement agency;a court; andan official, employee, or agent of an entity or agency described in this Subsection (17).”Evidence collecting or retaining entity” does not include a collecting facility defined in Section 53-10-902.

(18) “Exhibit” means property, contraband, or an item or substance that is admitted into evidence for a court proceeding.

(19) “In custody” means an individual who:is incarcerated, civilly committed, on parole, or on probation; oris required to register under Title 53, Chapter 29, Sex, Kidnap, and Child Abuse Offender Registry.

(20) “Law enforcement agency” means the same as that term is defined in Section 77-11a-101.

(21) “Medical or forensic entity” means a private or public hospital, medical facility, or other entity that secures biological evidence or conducts forensic examinations related to criminal investigations.

(22) “Physical evidence” includes evidence that:is related to:an investigation;an arrest; ora prosecution that resulted in a judgment of conviction; andis in the actual or constructive possession of a law enforcement agency or a court or an agent of a law enforcement agency or a court.

(23) “Property” means the same as that term is defined in Section 77-11a-101.

(24) “Prosecuting attorney” means the same as that term is defined in Section 77-11a-101.

(25) “Sexual assault kit” means the same as that term is defined in Section 53-10-902.

(26) “Victim” means the same as that term is defined in Section 53-10-902.

(27) “Violent felony offense” means the same as the term “violent felony” is defined in Section 76-3-203.5.

(28) “Wildlife” means the same as that term is defined in Section 23A-1-101.

Amended by Chapter 291, 2025 General Session

77-11c-102 - Retention of evidence as an exhibit.

(1) If evidence is admitted as an exhibit for a court proceeding, the clerk of the court shall: retain the evidence; orreturn the evidence to the custody of the agency.

(2) Rule 4-206 of the Utah Code of Judicial Administration applies to evidence that is admitted as an exhibit in a court proceeding.

Enacted by Chapter 448, 2023 General Session

77-11c-103 - Disposal or return of evidence.

When evidence is no longer subject to retention under this chapter, the agency shall:

(1) return evidence that is property to a claimant under Chapter 11a, Part 3, Return of Seized Property to Claimant; or

(2) dispose of evidence that is property or contraband in accordance with Chapter 11a, Part 4, Disposal of Seized Property and Contraband.

Amended by Chapter 150, 2024 General Session

Retention of Evidence for Misdemeanor Offenses

77-11c-201 - Retention of evidence of misdemeanor offenses.

(1) An agency shall retain evidence of a misdemeanor offense for the longer of:the length of the statute of limitations for the offense if:no charges are filed for the offense; orthe offense remains unsolved;60 days after the day on which any individual charged with the offense is acquitted if each individual charged with the offense is acquitted;90 days after the day on which any individual is adjudicated for the offense if:each individual charged with the offense has been adjudicated;there is no appeal pending in:an appellate court for any individual adjudicated for the offense; orthe district court for a trial de novo for any individual adjudicated by a justice court for the offense; andthere is no post-trial motion pending in the court:for a new trial under Rule 24 of the Utah Rules of Criminal Procedure;to amend or make additional findings of fact under Rule 52(b) of the Utah Rules of Civil Procedure; orfor relief under Rule 60(b) of the Utah Rules of Civil Procedure;30 days after the day on which any individual is adjudicated by a district court for the offense on a trial de novo from the justice court if:each individual charged with the offense has been adjudicated by a justice court or a district court on a trial de novo from the justice court; andthere is no appeal pending in:an appellate court for any individual adjudicated for the offense; orthe district court for a trial de novo for any individual adjudicated by a justice court for the offense;30 days after the day on which an appellate court issues a remittitur for an appeal of any individual adjudicated for the offense if:the appellate court’s final decision upholds the individual’s adjudication;each individual charged with the offense has been adjudicated; andthere is no appeal pending in:an appellate court for any individual adjudicated for the offense; orthe district court for a trial de novo for any individual adjudicated by a justice court for the offense; or20 years from the day on which the evidence is collected if the evidence is a sexual assault kit.

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

(3) An agency shall ensure that evidence of a misdemeanor offense is subject to a continuous chain of custody.

Amended by Chapter 164, 2024 General Session

77-11c-202 - Requirements for not retaining evidence of a misdemeanor offense — Preservation of sufficient evidence.

(1) An agency is not required to retain evidence of a misdemeanor offense under Section 77-11c-201 if:the agency determines that:the size, bulk, or physical character of the evidence renders retention impracticable; orthe evidence poses a security or safety problem for the agency;the agency preserves sufficient evidence of the property, contraband, item, or substance for use as evidence in a prosecution of the offense;the agency sends a written request under Subsection 77-Ch77_11c|77-11c-203] to the prosecuting attorney for permission to return or dispose of the evidence; andthe prosecuting attorney grants the agency’s written request in accordance with Section 77-11c-203;a court orders the agency to return evidence that is property to a claimant under Section 77-11a-305; orthe evidence is wildlife or parts of wildlife.

(2) Notwithstanding Subsection (1), the agency may not dispose of evidence of a misdemeanor offense that is a sexual assault kit before the day on which the time period described in Section 77-11c-201 expires if:the agency sends a notice to the victim as described in Section 53-10-905; andthe 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 misdemeanor offense.Subsection (1)(a) does not apply when the return or disposal of evidence of a misdemeanor offense is in compliance with a memorandum of understanding between the agency and the prosecuting attorney.

(4) 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:collecting and preserving a sample of the controlled substance for independent testing and use as evidence;taking a photographic or video record of the controlled substance with identifying case numbers;maintaining a written report of a chemical analysis of the controlled substance if a chemical analysis was performed by the agency; andif the controlled substance exceeds 10 pounds, retain at least one pound of the controlled substance that is randomly selected from the controlled substance.

(5) 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:collecting and preserving a sample of the controlled substance from the drug paraphernalia for independent testing and use as evidence;maintaining a written report of a chemical analysis of the drug paraphernalia if a chemical analysis was performed by the agency; andtaking a photographic or video record of the drug paraphernalia with identifying case numbers.

(6) 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:extracting all data from the computer that would be evidence in a prosecution of an individual for the offense; andtaking a photographic or video record of the computer with identifying case numbers.

(7) For any other type of evidence, the agency shall preserve sufficient evidence under Subsection (1)(a)(ii) of the property, contraband, item, or substance bytaking a photographic or video record of the property, contraband, item, or substance with identifying case numbers.

Amended by Chapter 150, 2024 General Session

77-11c-203 - Request to prosecuting attorney by agency — Notification to defendant.

(1) If an agency determines that the agency is not required to retain evidence of a misdemeanor offense under Subsection 77-Ch77_11c|77-11c-202](a)(i) and the agency seeks to return or dispose of the evidence, the agency shall send a written request to the prosecuting attorney that:identifies the evidence;explains the reason for which the agency is not required to retain the evidence under Subsection 77-Ch77_11c|77-11c-202](a)(i); andexplains the steps that the agency will take, or has taken, to preserve sufficient evidence of the property, contraband, item, or substance for use as evidence in a prosecution of the offense.

(2) If the prosecuting attorney receives a written request under Subsection (1) and determines that the agency needs to retain the evidence for a prosecution of the misdemeanor offense, the prosecuting attorney shall send a written notification to the agency that explains the reason for which the prosecuting attorney is denying the agency’s request.

(3) If the prosecuting attorney receives a written request under Subsection (1) and determines that the agency does not need to retain the evidence for a prosecution of the misdemeanor offense, the prosecuting attorney shall provide written notice of the intent to not retain the evidence that:is sent by certified mail, return receipt requested, or a delivery service that provides proof of delivery, to:any individual charged with or adjudicated for the offense; andthe individual’s most recent attorney of record; andexplains that the individual receiving the notice may submit a written objection to the prosecuting attorney.

(4) An individual, who is charged with or adjudicated for the offense, may submit a written objection to the return or disposal of the evidence by the agency no later than 30 days after the day on which the prosecuting attorney receives proof of delivery under Subsection (3).If an individual submits a written objection under Subsection (4)(a), the prosecuting attorney shall send a written notification to the agency that explains the reason for which the prosecuting attorney is denying the agency’s request.If the prosecuting attorney does not receive a written objection within the time period described in Subsection (4)(a), the prosecuting attorney shall send a written notification to the agency that grants the agency’s request to return or dispose of the evidence.

(5) If a prosecuting attorney receives a written request from an agency seeking to return or dispose of evidence, the prosecuting attorney shall:provide a notice of receipt to the agency within 15 days after the day on which the prosecuting attorney receives the written request; andsend a written notification to the agency of the prosecuting attorney’s decision to deny or grant an agency’s written request within 60 days after the day on which the prosecuting attorney receives the agency’s written request.If an agency does not receive a notice of receipt under Subsection (5)(a)(i) or a written notification under Subsection (5)(a)(ii), the agency may send the written request to the district attorney, county attorney, attorney general, or other prosecuting attorney who directly oversees and supervises the prosecuting attorney.

(6) If a prosecuting attorney denies an agency’s written request to return or dispose of evidence under this section, the agency shall retain the evidence in accordance with Section 77-11c-201.

(7) The requirements of this section do not apply when the return or disposal of evidence of a misdemeanor offense is in compliance with a memorandum of understanding between the agency and the prosecuting attorney.

Amended by Chapter 150, 2024 General Session

Retention of Evidence for Felony Offenses

77-11c-301 - Retention of evidence for felony offenses.

(1) Except as provided in Subsection (4), an agency shall retain evidence of a felony offense:for the longer of:the length of the statute of limitations for the felony offense if:charges are not filed for the felony offense; orthe felony offense remains unsolved;the length of time that any individual convicted of the felony offense, or a lesser included offense, remains in custody;one year after the day on which all direct appeals of the final judgment for any individual convicted of the felony offense, or a lesser included offense, are exhausted; orthe length of time that a petition for postconviction relief, and any appeal of the petition, is pending if an individual convicted of the felony offense files the petition within the one-year time period described in Subsection (1)(a)(iii); or20 years from the day on which the evidence is collected if the evidence is the contents of a sexual assault kit; orat the discretion of the prosecuting attorney or federal prosecutor if the prosecution of the felony offense resulted in an acquittal or dismissal.

(2) An agency shall ensure that evidence of a felony offense is subject to a continuous chain of custody.

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

(4) An agency shall retain and preserve biological evidence of a violent felony offense in accordance with Part 4, Preservation of Biological Evidence for Violent Felony Offenses.

Amended by Chapter 150, 2024 General Session

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

(1) An agency is not required to retain evidence of a felony offense under Section 77-11c-301 if:the agency determines that:the size, bulk, or physical character of the evidence renders retention impracticable or the evidence poses a security or safety problem for the agency; andthe evidence no longer has any significant evidentiary value;the agency preserves sufficient evidence from the property, contraband, item, or substance for use as evidence in a prosecution of the offense; anda prosecuting attorney or a court authorizes the agency to return or dispose of the evidence as described in Subsection 77-11c-303;a court orders the agency to return evidence that is property to a claimant under Section 77-11a-305; orthe 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:the agency sends a notice to the victim in accordance with Section 53-10-905; andthe 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:collecting and preserving a sample of the controlled substance for independent testing and use as evidence;taking a photographic or video record of the controlled substance with identifying case numbers;maintaining a written report of a chemical analysis of the controlled substance if a chemical analysis was performed by the agency;if the controlled substance exceeds 10 pounds, retaining at least one pound of the controlled substance that is randomly selected from the controlled substance; andfor 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:collecting and preserving a sample of the controlled substance from the drug paraphernalia for independent testing and use as evidence;maintaining a written report of a chemical analysis of the drug paraphernalia if a chemical analysis was performed by the agency;taking a photographic or video record of the drug paraphernalia with identifying case numbers; andfor 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:extracting all data from the computer that would be evidence in a prosecution of an individual for the offense;taking a photographic or video record of the computer with identifying case numbers; andfor 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:taking a photographic or video record of the property, contraband, item, or substance with identifying case numbers; andfor a violent felony offense, collecting and preserving biological evidence as described in Section 77-11c-401.

Enacted by Chapter 150, 2024 General Session

77-11c-303 - Procedure for authorizing the return or disposal of evidence of a felony offense.

(1) If an agency determines that the agency is not required to retain evidence of a felony offense under Subsection 77-Ch77_11c|77-11c-302](a)(i), and the agency seeks to return or dispose of the evidence, the agency shall send a written request to the prosecuting attorney that:identifies the evidence;explains the reason that the agency is not required to retain the evidence under Subsection 77-Ch77_11c|77-11c-302](a)(i); andexplains the steps that the agency will take, or has taken, to preserve sufficient evidence from the property, contraband, item, or substance for use as evidence in a prosecution of the offense.

(2) If a prosecuting attorney receives a written request described in Subsection (1), the prosecuting attorney shall:provide a notice of receipt to the agency within 15 days after the day on which the prosecuting attorney receives the written request; andsend a written notification to the agency of the prosecuting attorney’s decision to deny or grant an agency’s written request within 60 days after the day on which the prosecuting attorney receives the agency’s written request.

(3) If an agency sends a written request described in Subsection (1) to the prosecuting attorney, the agency shall also send the written request by certified mail, return receipt requested, or a delivery service that provides proof of delivery, to:any individual who remains in custody based on a conviction related to the evidence;the private attorney or public defender of record for each individual described in Subsection (3)(a);the entity that employed the private attorney or public defender described in Subsection (3)(b) at the time of the criminal conviction;if applicable, the prosecuting agency responsible for the prosecution of each individual described in Subsection (3)(a); andthe Utah attorney general.

(4) If a person described in Subsection (3) receives a written request from an agency seeking to return or dispose of evidence of the felony offense, the person may object to the agency’s written request to return or dispose of evidence of the felony offense.To object to an agency’s request under Subsection (4)(a), the person must send a written objection to the agency and prosecuting attorney within 60 days after the day on which the person receives the agency’s written request.

(5) If the prosecuting attorney receives a written request under Subsection (2) and determines that the agency needs to retain the evidence for a prosecution of the felony offense, the prosecuting attorney shall send a written notification to the agency that explains the reason for which the prosecuting attorney is denying the agency’s request.

(6) The agency may petition the court for an order granting the agency’s request to return or dispose of the evidence of a felony offense if:the prosecuting attorney denies the agency’s written request or does not respond to an agency’s written request within the time periods described in Subsection (2); ora person described in Subsection (3) objects to the agency’s written request.

(7) The court shall hold a hearing on the agency’s petition to determine whether an agency’s request to return or dispose of evidence should be granted.

(8) After a hearing on the agency’s petition, the court shall grant an agency’s request to return or dispose of evidence of a felony offense if the court determines, by a preponderance of the evidence, that:the size, bulk, or physical character of the evidence renders retention impracticable or the evidence poses a security or safety problem for the agency;the evidence no longer has any significant evidentiary value; andthe agency will take, or has taken, steps to preserve sufficient evidence from the property, contraband, item, or substance for use as evidence in a prosecution of the offense.

(9) If the court determines that a prosecuting attorney, or a person described in Subsection (3), objects to an agency’s request to dispose or return of physical evidence of a felony offense because the physical evidence contains biological evidence that would be evidence in a prosecution of the offense, the court may require the agency to collect and preserve biological evidence from the physical evidence before the agency returns or disposes of the evidence.

(10) If a prosecuting attorney denies the agency’s written request or a person described in Subsection (3) objects to the agency’s written request, the agency shall retain the evidence of a felony offense as described in Section 77-11c-301 until:the agency obtains a court order granting the agency’s request to return or dispose of the evidence as described in Subsection (8); orthe time periods described in Section 77-11c-301 have expired.

Enacted by Chapter 150, 2024 General Session

Preservation of Biological Evidence for Violent Felony Offenses

77-11c-401 - Preservation of biological evidence — Procedures — Inventory request.

(1) Except as provided in Section 77-11c-402, an evidence collecting or retaining entity shall preserve biological evidence of a violent felony offense in accordance with this part.

(2) An evidence collecting or retaining entity shall preserve biological evidence of a violent felony offense:for the longer of:the length of the statute of limitations for the violent felony offense if:no charges are filed for the violent felony offense; orthe violent felony offense remains unsolved;the length of time that any individual convicted of the violent felony offense, or a lesser included offense, remains in custody;one year after the day on which all direct appeals of the judgment for any individual convicted of the violent felony offense, or a lesser included offense, are exhausted;the length of time that a petition for postconviction relief, and any appeal of the petition, is pending if an individual convicted of the violent felony offense files the petition within the one-year time period described in Subsection (2)(a)(iii); or20 years from the day on which the biological evidence is collected if the biological evidence is the contents of a sexual assault kit; orat the discretion of the prosecuting attorney or federal prosecutor if the prosecution of the violent felony offense resulted in an acquittal or dismissal.

(3) An evidence collecting or retaining entity shall ensure that biological evidence under Subsection (2) is:preserved in an amount and manner sufficient to:develop a DNA profile; andif practicable, allow for independent testing of the biological evidence by a defendant; andsubject to a continuous chain of custody.

(4) Upon request by a defendant under Title 63G, Chapter 2, Government Records Access and Management Act, the evidence collecting or retaining entity shall prepare an inventory of the biological evidence preserved in connection with the defendant’s criminal case.If the evidence collecting or retaining entity cannot locate biological evidence requested under Subsection (4)(a), the custodian for the entity shall provide a sworn affidavit to the defendant that:describes the efforts taken to locate the biological evidence; andaffirms that the biological evidence could not be located.

(5) If the evidence collecting or retaining entity intends to dispose of biological evidence of a violent felony offense before the day on which the period described in Subsection (2) expires, the evidence collecting or retaining entity shall send a notice of intent to dispose of the biological evidence that:is sent by certified mail, return receipt requested, or a delivery service that provides proof of delivery, to:an individual who remains in custody based on a criminal conviction related to the biological evidence;the private attorney or public defender of record for each individual described in Subsection (5)(a)(i)(A);the entity that employed the private attorney or public defender at the time of the criminal conviction;if applicable, the prosecuting agency responsible for the prosecution of each individual described in Subsection (5)(a)(i)(A); andthe Utah attorney general; andexplains that the party receiving the notice may:file a motion for testing of biological evidence under Section 78B-9-301 if the party is the individual convicted of the violent felony offense; orsubmit a written request that the evidence collecting or retaining entity retain the biological evidence.An individual must file a motion, or submit a written request, described in Subsection (5)(a)(ii) within 180 days after the day on which the evidence collecting or retaining entity receives proof of delivery under Subsection (5)(a).An evidence collecting or retaining entity shall send a notice of intent to dispose of biological evidence that is the contents of a sexual assault kit to a victim in accordance with Section 53-10-905.

(6) The evidence collecting or retaining entity may not dispose of biological evidence of a violent felony offense before the day on which the time period described in Subsection (2) expires if:the evidence collecting or retaining entity is required by federal or state law to preserve the biological evidence; orthe evidence collecting or retaining entity sends notice in accordance with:Subsection (5); andSection 53-10-905 if the biological evidence is the contents of a sexual assault kit; andan individual notified under Subsection (5)(a) or Section 53-10-905:files a motion for testing of the biological evidence under Section 78B-9-301 within the 180-day period described in Subsection (5)(b); orsubmits a written request for retention of the biological evidence within the 180-day period described in Subsection (5)(b) or Section 53-10-905.

(7) Subject to Subsections (7)(b) and (c), if the evidence collecting or retaining entity receives a written request to retain the biological evidence, the evidence collecting or retaining entity shall retain the biological evidence for the time period described in Subsection (2).Subject to Subsection (7)(c), the evidence collecting or retaining entity may only return or dispose of physical evidence as described in Part 3, Retention of Evidence for Felony Offenses.If the evidence collecting or retaining entity is not required to retain physical evidence of the violent felony offense under Part 3, Retention of Evidence for Felony Offenses, before returning or disposing of the physical evidence, the evidence collecting or retaining entity shall:remove the portions of the physical evidence likely to contain biological evidence related to the violent felony offense; andpreserve the removed biological evidence in a quantity sufficient to permit future DNA testing.

(8) To comply with the preservation requirements described in this section, a law enforcement agency or a court may:retain the biological evidence; orif a continuous chain of custody can be maintained, return the biological evidence to the custody of the other law enforcement agency that originally provided the biological evidence to the law enforcement agency.

Amended by Chapter 150, 2024 General Session

77-11c-402 - Exceptions to preservation of biological evidence.

(1) As used in this section, “offense concerning driving under the influence” means:Section 41-6a-502;Section 41-6a-502.5;Section 41-6a-517;Section 41-6a-530;Section 76-5-102.1;Section 76-5-207; anda local ordinance similar to the offenses described in this Subsection (1).

(2) Section 77-11c-401 does not apply to biological evidence obtained during an investigation or prosecution for an offense concerning driving under the influence solely for toxicology purposes.

Amended by Chapter 277, 2025 General Session

77-11c-403 - Remedies for failure to preserve biological evidence.

(1) Except as provided in Subsections (1)(b) and (2), if a court finds that biological evidence that reasonably could have been found to be exculpatory in a defendant’s criminal case was not preserved in accordance with this chapter, the court may impose sanctions and remedies at the court’s discretion, including:the grant of a new trial;an instruction to the jury that evidence was not preserved as required by law;the reduction of the sentence;the dismissal of the criminal charge;the vacation of the conviction; orthe entry of a finding that because the evidence was not preserved in accordance with this chapter, a presumption exists that the evidence would have been exculpatory to the defendant.The provisions in Subsection (1)(a) apply only if:a defendant’s appeal has not concluded;a defendant’s time for appeal has not expired; ora defendant has received a new trial in accordance with Subsection (2)(b).

(2) A defendant shall seek relief under Title 78B, Chapter 9, Postconviction Remedies Act, if:the defendant alleges that the biological evidence that is the basis for the defendant’s claim was not preserved in accordance with this chapter; andthe defendant’s appeal has concluded; orthe time for the defendant’s appeal has expired.If a defendant obtains relief under Title 78B, Chapter 9, Postconviction Remedies Act, the provisions in Subsection (1) apply to the defendant’s new trial.

Renumbered and Amended by Chapter 448, 2023 General Session