Download Zipped Introduced WP 8.0 HB0363.ZIP 16,247 Bytes
[Status][Bill Documents][Fiscal Note][Bills Directory]
H.B. 363
1
GUN RESTRICTION AMENDMENTS
2
2000 GENERAL SESSION
3
STATE OF UTAH
4
Sponsor: Gary F. Cox
5
AN ACT RELATING TO THE CRIMINAL CODE; REPEALING CURRENT PROVISIONS
6
AND ENACTING CATEGORIES FOR PURCHASE AND POSSESSION OF DANGEROUS
7
WEAPONS; PROVIDING DEFINITIONS; REMOVING EXEMPTIONS FOR CERTAIN
8
RESTRICTED PERSONS; AND MAKING TECHNICAL CHANGES.
9
This act affects sections of Utah Code Annotated 1953 as follows:
10
AMENDS:
11
76-3-203.5, as last amended by Chapter 97, Laws of Utah 1999
12
76-10-501, as last amended by Chapters 5, 97 and 366, Laws of Utah 1999
13
76-10-504, as last amended by Chapter 289, Laws of Utah 1997
14
76-10-509.6, as enacted by Chapter 10, Laws of Utah 1993, Second Special Session
15
76-10-512, as last amended by Chapter 12, Laws of Utah 1994
16
REPEALS AND REENACTS:
17
76-10-503, as last amended by Chapter 97, Laws of Utah 1999
18
Be it enacted by the Legislature of the state of Utah:
19
Section 1.
Section
76-3-203.5
is amended to read:
20
76-3-203.5. Habitual violent offender -- Definition -- Procedure -- Penalty.
21
(1) As used in this section:
22
(a) "Felony" means any offense against a criminal statute of the state, any other state, the
23
United States, or any district, possession, or territory of the United States for which the maximum
24
punishment the offender may be subjected to exceeds one year in prison.
25
(b) "Habitual violent offender" means a person convicted within the state of any violent
26
felony and who, on at least two previous occasions as provided in Subsection (2), has been
27
convicted of a violent felony and committed to either prison in Utah or an equivalent correctional
28
institution of another state or of the United States either at initial sentencing or after revocation of
29
probation.
30
(c) (i) "Violent felony" means any of the following offenses, or any attempt, solicitation,
31
or conspiracy to commit any of these offenses punishable as a felony:
32
(A) aggravated arson, arson, knowingly causing a catastrophe, and criminal mischief under
33
Title 76, Chapter 6, Part 1, Property Destruction;
34
(B) aggravated assault under Title 76, Chapter 5, Part 1, Assault and Related Offenses;
35
(C) criminal homicide offenses under Title 76, Chapter 5, Part 2, Criminal Homicide;
36
(D) aggravated kidnapping and kidnapping under Title 76, Chapter 5, Part 3, Kidnaping;
37
(E) rape, Section
76-5-402
;
38
(F) rape of a child, Section
76-5-402.1
;
39
(G) object rape, Section
76-5-402.2
;
40
(H) object rape of a child, Section
76-5-402.3
;
41
(I) forcible sodomy, Section
76-5-403
;
42
(J) sodomy on a child, Section
76-5-403.1
;
43
(K) forcible sexual abuse, Section
76-5-404
;
44
(L) aggravated sexual abuse of a child and sexual abuse of a child, Section
76-5-404.1
;
45
(M) aggravated sexual assault, Section
76-5-405
;
46
(N) sexual exploitation of a minor, Section
76-5a-3
;
47
(O) aggravated burglary and burglary of a dwelling under Title 76, Chapter 6, Part 2,
48
Burglary and Criminal Trespass;
49
(P) aggravated robbery and robbery under Title 76, Chapter 6, Part 3, Robbery;
50
(Q) theft by extortion under Subsection
76-6-406
(2)(a) or (b);
51
(R) tampering with a witness under Subsection
76-8-508
(2)(c);
52
(S) tampering with a juror under Subsection
76-8-508.5
(2)(c);
53
(T) extortion to dismiss a criminal proceeding under Section
76-8-509
if by any threat or
54
by use of force theft by extortion has been committed pursuant to Subsections
76-6-406
(2)(a), (b),
55
and (i);
56
(U) damage or destruction of school or institution of higher education property by
57
explosives or flammable materials under Section
76-8-715
;
58
(V) possession, use, or removal of explosive, chemical, or incendiary devices under
59
Subsections
76-10-306
(3) through (6);
60
(W) unlawful delivery of explosive, chemical, or incendiary devices under Section
61
76-10-307
;
62
(X) [purchase or] possession, purchase, transfer, and ownership of a dangerous weapon
63
[or handgun] by a restricted person under Section
76-10-503
;
64
(Y) unlawful discharge of a firearm under Section
76-10-508
;
65
(Z) aggravated exploitation of prostitution under Subsection
76-10-1306
(1)(a);
66
(AA) bus hijacking under Section
76-10-1504
; and
67
(BB) discharging firearms and hurling missiles under Section
76-10-1505
; or
68
(ii) any felony offense against a criminal statute of any other state, the United States, or
69
any district, possession, or territory of the United States which would constitute a violent felony
70
as defined in this Subsection (1)(c) if committed in this state.
71
(2) (a) The penalty enhancement provisions of this section apply, if during the ten years
72
immediately preceding the commission of the violent felony, the person has been:
73
(i) convicted of any felony;
74
(ii) incarcerated, on parole, or on probation for any felony; or
75
(iii) the subject of an unexecuted felony arrest warrant.
76
(b) The provisions of Subsection (2)(a) include any conviction, incarceration, parole,
77
probation, escape, abscontion, and arrest warrant under the laws of this state, any other state, the
78
United States, or any district, possession, or territory of the United States.
79
(3) If a person is convicted in this state of a violent felony by plea or by verdict and the
80
sentencing court determines the person is a habitual violent offender under this section, the penalty
81
for a:
82
(a) third degree felony shall be as if the conviction were for a first degree felony;
83
(b) second degree felony shall be as if the conviction were for a first degree felony; or
84
(c) first degree felony shall remain the penalty for a first degree penalty except:
85
(i) the convicted person is not eligible for probation; and
86
(ii) the Board of Pardons and Parole shall consider that the convicted person is a habitual
87
violent offender as an aggravating factor to determine the length of incarceration.
88
(4) (a) In all cases, notice that the prosecution intends to seek punishment as a habitual
89
violent offender under this section shall be provided in writing and shall be served upon the
90
defendant or his attorney not later than ten days prior to trial. Notice shall include the case
91
number, court, and date of conviction or commitment of any case relied upon by the prosecution.
92
(b) (i) The defendant shall serve notice in writing upon the prosecutor if the defendant
93
intends to deny that:
94
(A) the defendant is the person who was convicted or committed;
95
(B) the defendant was represented by counsel or had waived counsel; or
96
(C) the defendant's plea was understandingly or voluntarily entered.
97
(ii) The notice of denial shall be served not later than five days prior to trial and shall state
98
in detail the defendant's contention regarding the previous conviction and commitment.
99
(c) The court shall determine if this section applies prior to or at the time of sentencing.
100
The court shall consider any evidence presented at trial and a shall afford the prosecution and the
101
defendant an opportunity to present any necessary additional evidence. Prior to sentencing under
102
this section, the court shall determine whether this section is applicable by a preponderance of the
103
evidence.
104
(d) If any previous conviction and commitment is based upon a plea of guilty or no contest,
105
there is a rebuttable presumption that the conviction and commitment were regular and lawful in
106
all respects if the conviction and commitment occurred after January 1, 1970. If the conviction and
107
commitment occurred prior to January 1, 1970, the burden is on the prosecution to establish by a
108
preponderance of the evidence that the defendant was then represented by counsel or had lawfully
109
waived his right to have counsel present, and that his plea was understandingly and voluntarily
110
entered.
111
(e) If the court finds this section applicable, it shall enter that specific finding on the record
112
and shall indicate in the order of judgment and commitment that the defendant has been found by
113
the court to be a habitual violent offender and is sentenced under this section.
114
(5) The habitual violent offender provisions of this section are not an element of the
115
offense, and proof of a defendant's conduct as a habitual violent offender is not necessary at a
116
preliminary hearing or at trial.
117
(6) (a) The sentencing enhancement provisions of Sections
76-3-407
and
76-3-408
shall
118
apply to a felony conviction defined in Title 76, Chapter 5, Part 4, Sexual Offenses, and shall
119
supersede the provisions of this section.
120
(b) Notwithstanding Subsection (6)(a):
121
(i) the convictions under Sections
76-5-404
and
76-5a-3
shall be governed by the
122
enhancement provisions of this section; and
123
(ii) the "violent felony" offense defined in Subsection (1)(c) shall include any felony sexual
124
offense violation of Title 76, Chapter 5, Part 4, Sexual Offenses, to determine if the convicted
125
person is a habitual violent offender.
126
Section 2.
Section
76-10-501
is amended to read:
127
76-10-501. Definitions.
128
As used in this part:
129
(1) (a) "Concealed dangerous weapon" means a dangerous weapon that is covered, hidden,
130
or secreted in a manner that the public would not be aware of its presence and is readily accessible
131
for immediate use.
132
(b) A dangerous weapon shall not be considered a concealed dangerous weapon if it is a
133
firearm which is unloaded and is securely encased.
134
[(2) "Crime of violence" means aggravated murder, murder, manslaughter, rape, mayhem,
135
kidnapping, robbery, burglary, housebreaking, extortion, or blackmail accompanied by threats of
136
violence, assault with a dangerous weapon, assault with intent to commit any offense punishable
137
by imprisonment for more than one year, arson punishable by imprisonment for more than one
138
year, or an attempt to commit any of these offenses.]
139
[(3)] (2) "Criminal history background check" means a criminal background check
140
conducted by a licensed firearms dealer on every purchaser of a handgun through the division or
141
the local law enforcement agency where the firearms dealer conducts business.
142
[(4)] (3) (a) "Dangerous weapon" means any item that in the manner of its use or intended
143
use is capable of causing death or serious bodily injury. The following factors shall be used in
144
determining whether a knife, or any other item, object, or thing not commonly known as a
145
dangerous weapon is a dangerous weapon:
146
(i) the character of the instrument, object, or thing;
147
(ii) the character of the wound produced, if any;
148
(iii) the manner in which the instrument, object, or thing was used; and
149
(iv) the other lawful purposes for which the instrument, object, or thing may be used.
150
(b) "Dangerous weapon" does not include any explosive, chemical, or incendiary device
151
as defined by Section
76-10-306
.
152
[(5)] (4) "Dealer" means every person who is licensed under crimes and criminal
153
procedure, 18 U.S.C. 923 and engaged in the business of selling, leasing, or otherwise transferring
154
a handgun, whether the person is a retail or wholesale dealer, pawnbroker, or otherwise.
155
[(6)] (5) "Division" means the Criminal Investigations and Technical Services Division
156
of the Department of Public Safety, created in Section
53-10-103
.
157
[(7)] (6) "Enter" means intrusion of the entire body.
158
[(8)] (7) "Firearm" means a pistol, revolver, shotgun, sawed-off shotgun, rifle or
159
sawed-off rifle, or any device that could be used as a dangerous weapon from which is expelled
160
a projectile by action of an explosive.
161
[(9)] (8) "Firearms transaction record form" means a form created by the division to be
162
completed by a person purchasing, selling, or transferring a handgun from a dealer in the state.
163
[(10)] (9) "Fully automatic weapon" means any firearm which fires, is designed to fire, or
164
can be readily restored to fire, automatically more than one shot without manual reloading by a
165
single function of the trigger.
166
[(11)] (10) "Handgun" means a pistol, revolver, or other firearm of any description, loaded
167
or unloaded, from which any shot, bullet, or other missile can be discharged, the length of which,
168
not including any revolving, detachable, or magazine breech, does not exceed 12 inches.
169
[(12)] (11) "House of worship" means a church, temple, synagogue, mosque, or other
170
building set apart primarily for the purpose of worship in which religious services are held and the
171
main body of which is kept for that use and not put to any other use inconsistent with its primary
172
purpose.
173
[(13)] (12) "Prohibited area" means any place where it is unlawful to discharge a firearm.
174
[(14)] (13) "Readily accessible for immediate use" means that a firearm or other dangerous
175
weapon is carried on the person or within such close proximity and in such a manner that it can
176
be retrieved and used as readily as if carried on the person.
177
[(15)] (14) "Residence" means an improvement to real property used or occupied as a
178
primary or secondary residence.
179
[(16)] (15) "Sawed-off shotgun" or "sawed-off rifle" means a shotgun having a barrel or
180
barrels of fewer than 18 inches in length, or in the case of a rifle, having a barrel or barrels of fewer
181
than 16 inches in length, or any dangerous weapon made from a rifle or shotgun by alteration,
182
modification, or otherwise, if the weapon as modified has an overall length of fewer than 26
183
inches.
184
[(17)] (16) "Securely encased" means not readily accessible for immediate use, such as
185
held in a gun rack, or in a closed case or container, whether or not locked, or in a trunk or other
186
storage area of a motor vehicle, not including a glove box or console box.
187
[(18)] (17) "State entity" means each department, commission, board, council, agency,
188
institution, officer, corporation, fund, division, office, committee, authority, laboratory, library,
189
unit, bureau, panel, or other administrative unit of the state.
190
(18) "Violent felony" means the same as defined in Section
76-3-203.5
.
191
(19) "Violent or weapon-related misdemeanor" means a misdemeanor violation of:
192
(a) Title 76, Chapter 5, Offenses Against the Person; or
193
(b) Title 76, Chapter 10, Part 5, Weapons.
194
Section 3.
Section
76-10-503
is repealed and reenacted to read:
195
76-10-503. Restrictions on possession, purchase, transfer, and ownership of
196
dangerous weapons by certain persons.
197
(1) For purposes of this section:
198
(a) A Category I restricted person is a person who:
199
(i) has been convicted of any violent felony as defined in Section
76-3-203.5
;
200
(ii) is on probation or parole for any felony;
201
(iii) is on parole from a secure facility as defined in Section
62A-7-101
; or
202
(iv) within the last ten years has been adjudicated delinquent for an offense which if
203
committed by an adult would have been a violent felony as defined in Section
76-3-203.5
.
204
(b) A Category II restricted person is a person who:
205
(i) has been convicted of any felony;
206
(ii) within the last seven years has been adjudicated delinquent for an offense which if
207
committed by an adult would have been a felony;
208
(iii) is an unlawful user of a controlled substance as defined in Section
58-37-2
;
209
(iv) is in possession of a dangerous weapon and is knowingly and intentionally in unlawful
210
possession of a controlled substance as defined in Section
58-37-2
;
211
(v) has been found not guilty by reason of insanity for a felony offense;
212
(vi) has been found mentally incompetent to stand trial for a felony offense;
213
(vii) has been civilly committed under the terms of Section
62A-12-234
;
214
(viii) is an alien who is illegally or unlawfully in the United States;
215
(ix) has been dishonorably discharged from the armed forces; or
216
(x) has renounced his citizenship after having been a citizen of the United States.
217
(c) A Category III restricted person is a person who, within the last three years:
218
(i) has been convicted of a class A misdemeanor which is an attempt, conspiracy, or
219
solicitation to commit a felony;
220
(ii) has been convicted of a violent or weapon-related misdemeanor as defined in Section
221
76-10-501
; or
222
(iii) has been adjudicated delinquent for an offense which would have been a violent or
223
weapon-related misdemeanor if committed by an adult.
224
(2) A Category I restricted person who purchases, transfers, possesses, uses, or has under
225
his custody or control:
226
(a) any firearm is guilty of a second degree felony; or
227
(b) any dangerous weapon other than a firearm is guilty of a third degree felony.
228
(3) A Category II restricted person who purchases, transfers, possesses, uses, or has under
229
his custody or control:
230
(a) any firearm is guilty of a third degree felony; or
231
(b) any dangerous weapon other than a firearm is guilty of a class A misdemeanor.
232
(4) A Category III restricted person who purchases, transfers, possesses, uses, or has under
233
his custody or control:
234
(a) any firearm is guilty of a class A misdemeanor; or
235
(b) any dangerous weapon other than a firearm is guilty of a class B misdemeanor.
236
(5) A person may be subject to the restrictions of more than one category at the same time.
237
(6) If a higher penalty than is prescribed in this section is provided in another section for
238
one who purchases, transfers, possesses, uses, or has under his custody or control any dangerous
239
weapon, the penalties of that section control.
240
Section 4.
Section
76-10-504
is amended to read:
241
76-10-504. Carrying concealed dangerous weapon -- Penalties.
242
(1) Except as provided in Section
76-10-503
and in Subsections (2) and (3):
243
(a) a person who carries a concealed dangerous weapon, as defined in Section
76-10-501
,
244
which is not a firearm on his person or one that is readily accessible for immediate use which is
245
not securely encased, as defined in this part, in a place other than his residence, property, or
246
business under his control is guilty of a class B misdemeanor; and
247
(b) a person without a valid concealed firearm permit who carries a concealed dangerous
248
weapon which is a firearm and that contains no ammunition is guilty of a class B misdemeanor,
249
but if the firearm contains ammunition the person is guilty of a class A misdemeanor.
250
(2) A person who carries concealed a sawed-off shotgun or a sawed-off rifle is guilty of
251
a second degree felony.
252
(3) If the concealed firearm is used in the commission of a [crime of violence] violent
253
felony as defined in Section [
76-10-501
]
76-3-203.5
, and the person is a party to the offense, the
254
person is guilty of a second degree felony.
255
(4) Nothing in Subsection (1) shall prohibit a person engaged in the lawful taking of
256
protected or unprotected wildlife as defined in Title 23, [Fish and Game] Wildlife Resources Code,
257
from carrying a concealed weapon or a concealed firearm with a barrel length of four inches or
258
greater as long as the taking of wildlife does not occur:
259
(a) within the limits of a municipality in violation of that municipality's ordinances; or
260
(b) upon the highways of the state as defined in Section
41-6-1
.
261
Section 5.
Section
76-10-509.6
is amended to read:
262
76-10-509.6. Parent or guardian providing firearm to violent minor.
263
(1) A parent or guardian may not intentionally or knowingly provide a firearm to, or permit
264
the possession of a firearm by, any minor who has been convicted of a [crime of violence] violent
265
felony as defined in Section
76-3-203.5
or any minor who has been adjudicated in juvenile court
266
for an offense which would constitute a [crime of violence] violent felony if the minor were an
267
adult.
268
(2) Any person who violates this section is guilty of:
269
(a) a class A misdemeanor upon the first offense; and
270
(b) a third degree felony for each subsequent offense.
271
Section 6.
Section
76-10-512
is amended to read:
272
76-10-512. Target concessions, shooting ranges, competitions, and hunting excepted
273
from prohibitions.
274
The provisions of [Sections
76-10-503
,] Section
76-10-509
[,] and Subsection
275
76-10-509.4
(1) regarding possession of handguns by minors shall not apply to any of the
276
following:
277
(1) Patrons firing at lawfully operated target concessions at amusement parks, piers, and
278
similar locations provided that the firearms to be used are firmly chained or affixed to the counters.
279
(2) Any person in attendance at a hunter's safety course or a firearms safety course.
280
(3) Any person engaging in practice or any other lawful use of a firearm at an established
281
range or any other area where the discharge of a firearm is not prohibited by state or local law.
282
(4) Any person engaging in an organized competition involving the use of a firearm, or
283
participating in or practicing for such competition.
284
(5) Any minor under 18 years of age who is on real property with the permission of the
285
owner, licensee, or lessee of the property and who has the permission of a parent or legal guardian
286
or the owner, licensee, or lessee to possess a firearm not otherwise in violation of law.
287
(6) Any resident or nonresident hunters with a valid hunting license or other persons who
288
are lawfully engaged in hunting.
289
(7) Any person traveling to or from any activity described in Subsection (2), (3), (4), (5),
290
or (6) with an unloaded firearm in his possession.
Legislative Review Note
as of 2-15-00 10:58 AM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.