Section 102 – Preservation of evidence — Procedures — Inventory request.

• (1) Except as provided in Section 53-20-103, an evidence collecting or retaining entity shall preserve biological evidence:
  • (a) for the longer of:
    • (i) the length of the statute of limitations for the violent felony offense if:
      • (A) no charges are filed for the violent felony offense; or
      • (B) the violent felony offense remains unsolved;
    • (ii) the length of time that the individual convicted of the violent felony offense or any lesser included violent offense remains in custody; or
    • (iii) the length of time that a co-defendant remains in custody;
  • (b) in an amount and manner sufficient to:
    • (i) develop a DNA profile; and
    • (ii) if practicable, allow for independent testing of the biological evidence by a defendant; and
  • (c) subject to a continuous chain of custody.

• (2)
  • (a) 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.
  • (b) If the evidence collecting or retaining entity cannot locate biological evidence requested under Subsection (2)(a), the custodian for the entity shall provide a sworn affidavit to the defendant that:
    • (i) describes the efforts taken to locate the biological evidence; and
    • (ii) affirms that the biological evidence could not be located.

• (3) The evidence collecting or retaining entity may dispose of biological evidence before the day on which the period described in Subsection (1)(a) expires if:
  • (a) no other provision of federal or state law requires the evidence collecting or retaining entity to preserve the biological evidence;
  • (b) the evidence collecting or retaining entity sends notice in accordance with Subsection (4); and
  • (c) an individual notified under Subsection (4)(a) does not within 180 days after the day on which the evidence collecting or retaining entity receives proof of delivery under Subsection (4):
    • (i) file a motion for testing of the biological evidence under Section 78B-9-301; or
    • (ii) submit a written request under Subsection (4)(b)(ii).

• (4) If the evidence collecting or retaining entity intends to dispose of the biological evidence before the day on which the period described in Subsection (1)(a) expires, the evidence collecting or retaining entity shall send a notice of intent to dispose of the biological evidence that:
  • (a) is sent by certified mail, return receipt requested, or a delivery service that provides proof of delivery, to:
    • (i) an individual who remains in custody based on a criminal conviction related to the biological evidence;
    • (ii) the private attorney or public defender of record for each individual described in Subsection (4)(a)(i);
    • (iii) if applicable, the prosecuting agency responsible for the prosecution of each individual described in Subsection (4)(a)(i); and
    • (iv) the Utah attorney general; and
  • (b) explains that the party receiving the notice may:
    • (i) file a motion for testing of biological evidence under Section 78B-9-301; or
    • (ii) submit a written request that the evidence collecting or retaining entity retain the biological evidence.

• (5)
  • (a) Subject to Subsections (5)(b) and (c), if the evidence collecting or retaining entity receives a written request to retain the biological evidence under Subsection (4)(b)(ii), the evidence collecting or retaining entity shall retain the biological evidence while the defendant remains in custody.
  • (b) Subject to Subsection (5)(c), the evidence collecting or retaining entity is not required to preserve physical evidence that may contain biological evidence if the physical evidence’s size, bulk, or physical character renders retention impracticable.
  • (c) If the evidence collecting or retaining entity determines that retention is impracticable, before returning or disposing of the physical evidence, the evidence collecting or retaining entity shall:
    • (i) remove the portions of the physical evidence likely to contain biological evidence related to the violent felony offense; and
    • (ii) preserve the removed biological evidence in a quantity sufficient to permit future DNA testing.

• (6) To comply with the preservation requirements described in this section, a law enforcement agency or a court may:
  • (a) retain the biological evidence; or
  • (b) if 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.

Enacted by Chapter 120, 2022 General Session