A magistrate can order a no-bail hold under the provisions of Utah Code 77-20-205, even before a case is formally filed in court. At the time that a magistrate issues an initial arrest warrant or makes a probable cause determination on a warrantless arrest, the magistrate may also order pretrial detention without bail if the magistrate determines that it is appropriate.
After the criminal case is filed with the court, Utah Code 77-20-206 allows the prosecutor to make a motion for detention without bail only if the charges include at least one offense that is “eligible” for detention without bail. The court must then hold a hearing at which both sides are able to present information, evidence, and argument.
The Utah State Constitution establishes that a person charged with a crime is, in most cases, entitled to a reasonable bail as a matter of right However, the Constitution also provides the legislature with the authority to make exceptions to this general rule. Section 77-20-201 of the Utah Code mirrors the Constitution’s provision relating to “bail as a matter of right” and also lists a number of exceptions which are “eligible” for pretrial detention without bail. These exceptions include:
- a capital felony (aggravated murder);
- any felony committed while on probation or parole for another felony;;
- any felony, if the court finds by clear and convincing evidence that the individual “violated a material condition of release while previously on bail”;
- any domestic violence offense (felony or misdemeanor), if the court finds by clear and convincing evidence that the individual would pose a “substantial danger to an alleged victim of domestic violence” if released from custody;
- a charge for DUI or driving with a measurable controlled substance that resulted in death or serious injury to an individual, if the court also finds that the person would pose a “substantial danger to the community” if released; and
- a felony charge under section 76-9-101 (riot), if the court finds that the person “is not likely to appear for a subsequent court appearance” if released.
If a judge has issued a no-bail hold in a criminal case, the defendant still has a right to demand a hearing on the matter, and the right to be represented by an attorney at the hearing.