Section 104 – Remedies for failure to preserve evidence.

• (1)
  • (a) 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:
    • (i) the grant of a new trial;
    • (ii) an instruction to the jury that evidence was not preserved as required by law;
    • (iii) the reduction of the sentence;
    • (iv) the dismissal of the criminal charge;
    • (v) the vacation of the conviction; or
    • (vi) the 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.
  • (b) The provisions in Subsection (1)(a) apply only if:
    • (i) a defendant’s appeal has not concluded;
    • (ii) a defendant’s time for appeal has not expired; or
    • (iii) a defendant has received a new trial in accordance with Subsection (2)(b).

• (2)
  • (a) A defendant shall seek relief under Title 78B, Chapter 9, Postconviction Remedies Act, if:
    • (i) the defendant alleges that the biological evidence that is the basis for the defendant’s claim was not preserved in accordance with this chapter; and
    • (ii)
      • (A) the defendant’s appeal has concluded; or
      • (B) the time for the defendant’s appeal has expired.
  • (b) 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.

Enacted by Chapter 120, 2022 General Session