UTAH’S NEW BAIL SYSTEM
OCTOBER 2020 AMENDMENTS
BAIL IS A RIGHT.
Granting bail is a right under the Utah Constitution. The words of our great Utah Constitution are worth quoting in whole:
Article I, Section 8 [Offenses bailable.] [Utah Constitution 2020]
(1) All persons charged with a crime shall be bailable except:
(a) persons charged with a capital offense when there is substantial evidence to support the charge; or
(b) persons charged with a felony while on probation or parole, or while free on bail awaiting trial on a previous felony charge, when there is substantial evidence to support the new felony charge; or
(c) persons charged with any other crime, designated by statute as one for which bail may be denied, if there is substantial evidence to support the charge and the court finds by clear and convincing evidence that the person would constitute a substantial danger to any other person or to the community or is likely to flee the jurisdiction of the court if released on bail.
(2) Persons convicted of a crime are bailable pending appeal only as prescribed by law.
Article I, Section 9 [Excessive bail and fines — Cruel punishments.]
Excessive bail shall not be required; excessive fines shall not be imposed; nor shall cruel and unusual punishments be inflicted. Persons arrested or imprisoned shall not be treated with unnecessary rigor.”
THE FUTURE OF THE UTAH BAIL SYSTEM AS OF OCTOBER 2020.
You are entitled to bail statutorily and by the Utah Constitution as of right, except in the following circumstances:
Death Penalty/Capital Case.
(a) A death penalty case, or a case where you can be put in prison for life without parole
New Felony while on Probation/Parole
(b) You allegedly committed a felony while on probation or parole. Or, you are free on bail and commit another felony and the court finds substantial evidence to support the current new charge.
A Felony and you are found to be a Danger to Society or Flight Risk.
(c) You allegedly commit any type of felony, the judge has substantial evidence that you did it, and the judge finds clear and convincing evidence that you constitute a substantial danger to any other individual or to the community, or you are likely to flee the state of country if released on bail;
New Felony, Whatever Level, but you Violated Materially your Current Bail.
(d) You allegedly commit a new felony, although a lower level, but you materially violated a condition of your current bail.
(e) You allegedly commit a domestic violence offense and the court finds by clear and convincing evidence that you hurt the alleged victim. For example: your wife, girlfriend, husband, etc.
PRETRIAL STATUS ORDER.
The “Pretrial Status Order” is new to Utah’s bail law, starting October 1, 2020. A pretrial status order will be issued immediately by the court having jurisdictions. The pretrial status order will set the conditions necessary to ensure the defendant returns to court when called.
It is presumed in most circumstances the bail setting court will issue bail conditions in the least restrictive manner possible to ensure the defendant returns to court.
YOU WILL BE DETAINED WITHOUT BAIL ON THE FOLLOWING CIRCUMSTANCES:
You are charged with
(a) criminal homicide as defined in 75-5-201 (2020), or
(b) Any crimes that carries life without the possibility of parole. (“LWOP”)
In these circumstances no bail is presumed, but the no-bail presumption can be rebutted if you can prove to a judge that you will comply by a preponderance of the evidence and return to court.
HOW IS BAIL SET?
Initial bail is set by the court and judge having jurisdiction over the alleged crime. The bail setting judge will set bail based on any factor he or she chooses outside of constitutionally prohibited criteria such as race, gender, etc. The exact bail setting criteria is expansive and contains the following:
a) any form of pretrial services assessment;
(b) the nature and circumstances of the offense or offenses charged, including whether the charges include a violent offense and the vulnerability of witnesses or alleged victims;
(c) the nature and circumstances of the individual, including the individual’s character, physical and mental health, family and community ties, employment status and history, financial resources, past criminal conduct, history of drug or alcohol abuse, and history of timely appearances at required court proceedings;
(d) the potential danger to another individual or individuals posed by the release of the individual;
(e) if the individual was on probation, parole, or release pending an upcoming court proceeding at the time the individual allegedly committed the offense;
(f) the availability of other individuals who agree to assist the individual in attending court when required or other evidence relevant to the individual’s opportunities for supervision in the individual’s community;
(g) the eligibility and willingness of the individual to participate in various treatment programs, including drug treatment; or
(h) other evidence relevant to the individual’s likelihood of fleeing or violating the law if released.
WHEN IS BAIL SET?
Bail is set by the court having jurisdiction over your criminal charges. It is set immediately with a pretrial status order, setting the conditions of your release, if any. If you commit an alleged crime in Provo, Utah, the Fourth Judicial District will have jurisdiction to set bail for all felonies and Class A Misdemeanors. If you allegedly commit a crime in Orem City, and it’s a Class B or Class C Misdemeanor, then the Orem City Justice Court will have jurisdiction to set your bail.
WHAT KIND OF BAIL CONDITIONS CAN BE SET?
The Utah bail setting judge can consider many expansive factors in what the conditions of bail may be. Here is what the statute says are possible bail conditions. See Utah Code Ann. 77-20-1 (2020).
(i) not commit a federal, state, or local offense during the period of release;
(ii) avoid contact with a victim or victims of the alleged offense;
(iii) avoid contact with a witness or witnesses who may testify concerning the alleged offense that are named in the pretrial status order;
(iv) not use or consume alcohol, or any narcotic drug or other controlled substance except as prescribed by a licensed medical practitioner;
(v) submit to drug or alcohol testing;
(vi) complete a substance abuse evaluation and comply with any recommended treatment or release program;
(vii) submit to electronic monitoring or location device tracking;
(viii) participate in inpatient or outpatient medical, behavioral, psychological, or psychiatric treatment;
(ix) maintain employment, or if unemployed, actively seek employment;
(x) maintain or commence an education program;
(xi) comply with limitations on where the individual is allowed to be located or the times the individual shall be or may not be at a specified location;
(xii) comply with specified restrictions on personal associations, place of residence, or travel;
(xiii) report to a law enforcement agency, pretrial services program, or other designated agency at a specified frequency or on specified dates;
(xiv) comply with a specified curfew;
(xv) forfeit or refrain from possession of a firearm or other dangerous weapon;
(xvi) if the individual is charged with an offense against a child, is limited or denied access to any location or occupation where children are, including any residence where children are on the premises, activities including organized activities in which children are involved, locations where children congregate, or where a reasonable person should know that children congregate;
(xvii) comply with requirements for house arrest;
(xviii) return to custody for a specified period of time following release for employment, schooling, or other limited purposes;
(xix) remain in the custody of one or more designated individuals who agree to supervise and report on the behavior and activities of the individual charged and to encourage compliance with all court orders and attendance at all required court proceedings;
(xx) comply with a financial condition; or
(xxi) comply with any other condition that is necessary to reasonably ensure compliance with Subsection (3)(b)
CAN BAIL BE MODIFIED? WHEN CAN IT BE MODIFIED? WHEN CAN IT BE HEARD?
Motions for bail can be made at anytime during the pretrial proceedings. Bail motions can be made orally at the arraignment, or after the preliminary exam. The catch is, once a bail motion is formally heard, bail will not be modified on a subsequent bail motion unless there has been a material change in circumstances since the original bail motion was set. See Utah Code Ann. 77-20-1(12) (2020).
In essence, you only have one good shot at your bail motion, so you had better be prepared.
APPEALS OF BAIL DETERMINATIONS.
You have the right to appeal your bail to the Utah Court of Appeals. Although this will be a very difficult appeal. Overturning a trial court’s bail determination, you must show the trial court judge abused their discretion. Meaning the trial court’s bail conditions or denial were so outside the left and right limits of reasonableness that it must be overturned. It is rare that appellate judges not sitting in the courtroom where the bail was set, and without the opportunity to see the defendant and facts, to hold that a trial court judge abused their discretion.
REVOKING BAIL PENDING TRIAL FOR VIOLATIONS.
Based on your conduct pending trial, the court or the prosecutor can revoke or modify your bail due to violating the original terms of your bail. Generally, there is a hearing to consider such measures before the court acts.
GROUNDS FOR BAIL PENDING SENTENCE.
Upon conviction, but before sentencing occurs, the court shall order that you to be detained in jail until sentencing. This is unless the court finds by clear and convincing evidence presented that you are not likely to flee the jurisdiction of the court, and will not pose a danger to the physical, psychological, or financial and economic safety or well-being of any other person or the community if released.
The more serious the crimes and sentences, the less likely you will be released on bail pending sentence. Often, you will be either immediately sentenced on misdemeanors, or released prior to sentencing. More serious sex offense cases that carry mandatory minimums create a less likely chance that you will be granted bail pending sentencing.
RELEASE ON BAIL PENDING CONVICTION AND APPEAL.
Sometimes you are convicted, but still can be set free while your criminal appeal is pending. Utah bail law states that you shall be detained after sentencing unless you have filed an appeal, that appeal raises substantial questions of law, a new trial has been ordered, or you were not sentenced to jail or prison.
It is rare that pending appeal, you will be granted bail. Additionally, you have to prove by clear and convincing evidence that you will comply, not flee the jurisdiction, or pose a danger to the public or specific individuals.
UTAH BAIL SETTING STRATEGIES.
FACT SPECIFIC BAIL MOTIONS.
On less severe offenses, like misdemeanors without violence, an immediate oral bail motion should be requested at the first hearing. Utah’s bail statute, Utah Code Ann. 77-20-1 (2020), requires advance notice to the prosecuting attorney before a motion is made, but this is often waived on lesser offenses. Bail on lesser offenses is less of a problem than more serious felonies that carry actual prison time for first-time offenders.
On more serious felonies, a concentrated, fact-specific, written motion to be filed with the court. This motion will set out all the statutory bail factors that demonstrate to the court that you will not flee the state or hurt the public.
Some specifics will be considered, such as your business affairs, your passport status, your immigration status, your family status, and how long you have lived in Utah. It will include your prior criminal history. Your prior history of compliance with this court and other courts are important. There are as many factors to consider as there are criminal defendants. Each case is different and a fact-specific approach is needed. Coupled with underlying documentation of property deeds, business licenses, paystubs, etc to prove it to the judge.
WHEN TO BRING YOUR BAIL MOTION ON SERIOUS FELONIES?
As discussed above, you only get one real change at your bail motion. You need to use it wisely, because any subsequent Utah bail motion you must show a material change in circumstances since your first bail motion that was denied.
The courts often hold preliminary exams, and then hear your bail motion. A preliminary exam is like a miniature trial used to weed out bad cases. The evidentiary standard at preliminary exams is only probable cause. Probable cause is one of the lowest evidentiary standards in the entire legal system. Only second to reasonable suspicion. The court will not weigh the credibility of the evidence at the preliminary exam, but will look for one shred of testimony or evidence on each element of the charged offense to bind you over to the district court for arraignment.
The reason to hold the bail motion after the preliminary exam is because the bail-setting judge will be in a much more informed position on the actual facts of the case than before. He will have seen you face-to-face, he will have seen some of your defenses, the strength of the prosecutor’s case, and the complaining witnesses (prosecutor’s call them victims). After this preliminary exam, the judge will be in a better position to weigh bail factors and grant appropriate and tailored bail.
Being released during the pendency of your criminal charges makes defending you much easier. You will be available to speak 24/7. You can more easily view evidence, the scene of the alleged crime, and you can meet with your attorneys more often. Defending criminal charges while in jail is far more difficult and expensive.
Having the right attorney prepare your bail motion matters greatly. Call Utah bail attorney Jake Gunter for a free consultation. (801) 373-6345.